Board of County Commissioners - Regular Meeting

Recording in progress.

How many commissioners, um, appeal hearing of a hearing examiner's decision? Um, we have, uh, my name is commissioner time answer. I'm chair of the board. I will be presiding over today's appeal here with me today are commissioner and vice chair, Wayne Fournier to my right commissioner, Rachel grant to my left. Commissioner Emily Klaus is participating virtually and Commissioner Mejia has recused herself from participating and ruling on the merits of this hearing. Less than two weeks ago, she received ex parte communications from either opponents or proponents of the proposal on appeal that may complicate her involvement as a judicial decision maker. Today's date is Wednesday, This is a little bit out of date. Today's date is Wednesday, June 24th, 2026, and the time is 10.04 a.m. The Thurston County Board of County Commissioners is now on the record in an appeal of a hearings examiner's decision. And I just need to stop for one moment. Some of my information is from a different document. I just have to get the updated document, and we will . All right, thank you. Sorry for that quick, short delay. So today's date is June 24th. Time is 10.06. Thurston County Board of County Commissioners now on the record in an appeal of the hearing examiner's decision dated April 30th, 2026, filed by Appellants Jim Weston and Neighbors. On April 30th, 2026, the hearing examiner granted a forest conversion and preliminary plat permit with conditions to appellant to Nino Land Company LLC to subdivide 22.04 acres into 105 single family residential lots. The appellants raised one issue on appeal. whether the hearing examiner erred by approving the preliminary plat without the groundwater impact analysis required by Thurston County Code and Drainage Manual, where such analysis is required to demonstrate that the plat would serve the public interest as required under RCW 5817-110-1A and Thurston County Code 1812090. In quasi-judicial appeals, the Board is subject to the appearance of fairness doctrine codified in Chapter 4236 of the Revised Code of Washington. Under this doctrine, the Board members are not authorized to have ex parte communications with the parties after an appeal has been filed with the Board. However, if there have been ex parte communications since the appeal was filed or communication or relationships with any of the parties that may appear to impact their impartiality, then the substance of that communication or relationship needs to be disclosed. In addition, each board member must be able to impartially judge this case on the facts contained in the record and the applicable law. At this time, I will ask each commissioner to make a declaration for the record. And I'll go first with Commissioner Fournier.

Yeah, this would be here. And then since the appeal was filed on May 14th, 2026, I have not had any ex parte communications with any of the parties to this appeal. And I affirm that I can fairly and impartially judge this case on the facts in the record and applicable law.

Since the appeal was filed on May 14, 2026, I have not had any ex parte communication with any of the parties to this appeal, and I affirm that I can fairly and impartially judge this case on the facts in the record and applicable law. I do want to disclose the parties of record. There are several people who I am familiar with. Ms. Fitzhugh is someone who I discuss many issues of county business. We have not discussed this issue. Marianne Tompkins, I consider a friend, but my work with her is mostly through her work as a supervisor on the Thurston County Conservation District. Brett Burris was a former employee of our community planning economic development department, and I obviously have had a professional relationship with him for a number of years. I know Rhonda Larson Kramer as an acquaintance. I know Charlotte Persons. And I would venture to guess that Ms. Persons has probably made a donation to my campaign for election in the past. But I'd have to double check that with the Public Disclosure Commission. So I'd like to disclose those. I'd still feel I can judge this matter impartially. So Commissioner Grant.

Sure, since the appeal was filed on May 14th, 2026, I have not had any ex parte communications with any of the parties to this appeal, and I affirm that I can fairly and impartially judge this case on the facts in the record and applicable law.

Since the appeal was filed on May 14th, 2026, I have not had any ex parte communications with any of the parties to this appeal, and I affirm that I can fairly and impartially judge this case on the facts in the record and applicable law.

Do any of the parties have objections or challenges to any board member to decide this case? No, okay. So, the process. The appellant may now present 15 minutes of oral argument. Oral argument may not present new information or evidence, but must be limited to the evidence in the record. and the specific issues raised in the appeal. The applicant then has 15 minutes to respond. I understand the department will not be presenting oral argument, but is available to answer questions from the board. The board, if it has any questions, will ask them possibly during or after argument. We'll try to keep track and not count that time against your argument. Do you have any questions before we begin? And the appellant can reserve time for rebuttal within your 15 minutes if you choose to do so. Okay, so hearing is now open, and the appellant now has 15 minutes to present.

Fantastic.

Well, good morning, everybody. I appreciate the opportunity to stand here before you and talk a little bit about what little I know, but enough to get in trouble. So my name is Jim Weston. I am one of the appellants in the 88th Place Preliminary Platte Appeal. I live across from 88th Avenue. from the project and have since May of 1999. I know about flooding around the project because my property has on several occasions been flooded. And the flooding, excuse me, that probably stands out most to me occurred in the spring of 1999. My shop had groundwater flooding. The insulation under my home was affected by that flooding. There was flooding over the street, completely over the street, neighboring properties and ditches were full of water for sure. Today, I do want to focus on a single critical issue, I believe, that no mounting analysis of potential groundwater increases was provided for this preliminary plat. Without the mounting analysis, the record before the hearing examiner had no evidence of whether this project will cause groundwater flooding to surrounding properties. Without the mounting analysis, excuse me, the drainage manual requires a preliminary drainage report for a preliminary plat, and in particular, that a mounting analysis be included in the preliminary drainage report. A mounting analysis is required in basins like the Salmon Creek Drainage Basin that experience high groundwater conditions. And we know from history that this basin is highly vulnerable to groundwater flooding. That was documented by the county's interim site development standards and its Salmon Creek Basin Plan. In wet years, groundwater doesn't just rise, it surfaces, breaks the surface of the earth. And that was, excuse me, it forms puddles and even lake-like conditions covering acres, some homes. experienced groundwater underneath and around them throughout the Salmon Creek Basin. In very wet years, septic systems have failed and drinking water has been contaminated. I have neighbors directly across from me that have experienced both of those situations. And it matters because the groundwater system here is extremely fragile and can quickly reach critical levels. Small changes and recharge can have real impacts on neighbors. And adding to the risk, the applicant proposes an infiltration basin that would have a mere one and a half foot separation from the high groundwater level. That leaves virtually no room to accommodate unusually high groundwater. And with all due respect, excuse me, I want to now provide some more detail about what the drainage manual does require, excuse me. The county's drainage manual explicitly requires that a preliminary drainage report be submitted before a preliminary plat is approved. And that manual explicitly requires that any mounting analysis be submitted with any drainage report. The applicant's preliminary drainage plan here did not have a preliminary mounting analysis. The applicant says, quote, don't worry, the analysis will be done later. But that directly conflicts the language OF THE DRAINAGE MANUAL REQUIRING THAT WHEN A MOUNTING ANALYSIS IS TRIGGERED, IT BE PART OF THE PRELIMINARY DRAINAGE REPORT. IT'S A LITTLE TRICKY THERE, BUT A PRELIMINARY DRAINAGE REPORT IS NOT JUST A PLACEHOLDER. IT SERVES CRITICAL PURPOSES. ONE, IT IDENTIFIES POTENTIAL PROBLEMS WITH STORM WATER AND GROUND WATER FLOODING. SECOND, IT ALLOWS EARLY DISCOVERY OF FLAWS OR DEFICIENCIES IN THE ANALYSIS. And it also allows the public and outside experts to identify potential flaws. Lastly, it prevents continued investment in projects that cannot meet standards. And so the drainage manual explicitly requires that one, any required mounting analysis shall be included in the drainage report. Two, here everyone agrees that the applicant is required to do a mounting analysis. And finally, there is no language limiting that requirement to just the final drainage report. Yes, the drainage manual says that the applicant shall include the assessment of the infiltration receptor and or the mounting analysis in the drainage report. The use of the words and or here does not give the applicant discretion to choose the infiltration assessment or the mounting analysis. Rather it simply recognizes that in some projects only an infiltration assessment is needed because no mounting analysis is triggered. But where both the infiltration and mounting analysis are required, as they are here, the word and requires that both the infiltration receptor assessment and the mounting analysis be included in the drainage report. Treating the words and or as elective would nullify the manual's requirement to include the mounting analysis at all. Moreover, it would allow preliminary plats to be approved without any evidence of groundwater effects. And that would let risky projects go forward to the final plat with no public review of the potential for groundwater flooding. That would frustrate the dual purpose of the preliminary report to expose and avoid potential drainage problems and to provide transparency by allowing the public as well as an outside expert to give feedback on the analysis. Another reason why deferring the mounting analysis matters has to do with the integrity of the process. By the final plat, the applicant will have invested considerable money and effort in a potentially destructive project. The County likewise will have invested a substantial amount of its resources on the project. Thus, at the final plat stage, the County will be potentially reluctant to those investments by requiring a substantial redesign or denying the project, even if that would be the best decision. Additionally, a preliminary mounting analysis also helps to protect against irreversible deforestation for a project that may be unpermittable. requiring a mounting analysis that can be contested at the hearing on the preliminary plat provides a safeguard against rushed deforestation of a project that proposes a high risk of flooding. Finally, the county's interim rules for Salmon Creek Reinforced, the reason for a preliminary mounting analysis here. Those rules explicitly say that the county may not approve the project if a mounting analysis predicts any increase in the winter or spring groundwater levels at the property boundaries. So without the mounting analysis, the hearing examiner had no way to determine whether the plat was even conceptually eligible for approval. In summary, with no evidence of whether there will be groundwater impacts, the hearing examiner had no basis to find the project drainage is in the public interest. Here we have an approval of a preliminary plat for a project in a known groundwater flood basin with documented past flooding around the project with increased infiltration expected from removing thousands of trees and with only a 1.5 foot of groundwater separation. Where the drainage manual requires the preliminary drainage report have a mounting analysis but none was submitted so we have no evidence whether the project will increase groundwater. Here we respectfully request the Board to do three things. First, reverse the hearing examiner's approval of the 80th place preliminary plat. Second, remand this matter back to the hearing examiner for reconsideration of the preliminary plat after the applicant submits a groundwater mounting analysis that complies with the drainage manual and after a new hearing. And third, as a matter of transparency to the public, we also request the Board to ask Community Planning and Economic Development to publicly confirm whether or not it used the drainage manual to prohibit any deforestation or land clearing until approval of a final drainage plan. The public should know where CPED stands on that critical issue. And this case, just in closing, I would just say that this case is not about stopping development at all. It's about ensuring that development does not flood the neighbors. I think that's primary. Right now, the preliminary information necessary to have any sense of whether the project would cause groundwater flooding hasn't been provided, and that information needs to be provided, and the hearing examiner needs to reevaluate the preliminary plat once it is. With that, I thank you, and reserve any remaining time with rebuttal.

Any questions for the before we go to the applicant. I just have one question. You said about the concern about irreversible deforestation. But you cited provision in your brief that the drainage manual doesn't allow that. So is the concern that that CPED won't follow the provisions of the drainage manual?

I think it's, do they have, looking at this, I would say they need to confirm whether or not the drainage manual prohibits any deforestation. I don't think that's clear anywhere. Okay. If that makes sense. Thank you. Okay. Fantastic.

Well, you'll have five minutes, 25 seconds left for rebuttal if you need it.

Fantastic, thank you.

Now I'll have 15 minutes from the applicant.

You guys can stay. Yeah, totally fine. This is where I start to feel vertically challenged. Good morning, Commissioner Menser and fellow commissioners. I appreciate the opportunity to be here today. My name is Heather Burgess. I'm counsel for Tenino Land Company, the applicant in this particular case, as well as the underlying home developer, Todd Hanson, Hanson Construction. Todd Hanson is from Tenino. He's a local developer. He's been building and constructing homes here in Thurston County, working with these very development regulations with his team for more than 20 years. As you know, the appeal before you today, oops, forgot to start my timer here, but I'm sure you're tracking that, is, as you noted, an appeal of the hearing examiner's approval of a preliminary plot that was subject to conditions to divide 22 acres of property into 105 single-family homes together with the forest land conversion permit that's necessary to facilitate that development. We request that the board deny the appeal because the hearing examiner correctly found that the plat as proposed in conditions does meet all applicable county codes, plans, and standards for approval. To remind the board that this property is located in the Tumwater Urban Growth Area. It's zoned single family low density, which allows a minimum density of four and a maximum of seven units per acre. At 105 units, this project will be developed at slightly less than the 107 unit maximum density that would be permitted. And while this property has remained undeveloped up to this point, the single family low density zoning found in Title 22 of your code for the Tumwater Urban Growth Area has been in place dating back to 1996 and has remained largely unchanged in those intervening 30 years. In other words, both the county and the city, as this is a joint planning area, have anticipated development of this property with this form of housing for all of that time. In this instance, the applicant, Tenino Lands, submitted land use applications supporting records and reports and a SEPA checklist for the project on October 29th of 2024. The project spent over 500 days in county review by staff and the City of Tumwater before the hearing examiner hearing was held on April 14th, 2026. The county's SEPA process included routing to outside agencies and tribes for review, several of which provided comments, including the Confederated Tribes of the Chehalis, Nisqually Indian Tribe, Fish and Wildlife, ORCA, and the Department of Ecology. And the SEPA for the project was not appealed. The issue that's presented in this appeal is a narrow one concerning the project's compliance with the county's adopted drainage design and erosion control manual, fondly but not conveniently known as the DDECM and referred to in the briefing. And in particular, with drainage standards specific to development of the Salmon Creek Basin, which were adopted to address the very flooding problems from the 1990s due to high groundwater that Mr. Weston mentioned during his argument. Those standards, which I find interesting, are still denoted as interim, since they go back to 2000 when they were adopted, have been in place and applied consistently by city and county public work staff to review projects in this basin for that entire time. So we're now over 25 years into applying these standards. The record before the hearing examiner in this instance included county public work staff review of the preliminary drainage design for the project for compliance with the DD-ECM, as well as its recommendation for preliminary approval subject to conditions. And that was in attachment end to the staff report that the hearing examiner considered and is referenced in her finding number 16. Mr. Saint, the county's public works reviewer, also testified at the hearing where the hearing examiner specifically asked him about whether the project stormwater design, including the anticipated 1.5 vertical feet of separation reflected in it, complied with the DD's ECM requirements. He confirmed that it did. Subject to review of a mounding analysis during final engineering. This is reflected in the hearing examiner's finding number 14. Mr. Saint's testimony regarding compliance with the DDECM and the mounding analysis that was required for final approval was further confirmed by the testimony of Whitney Dunlap, a professional engineer who's a licensed civil engineer in the state of Washington who prepared the drainage design and the stormwater report. Although the appellants and other members of the public expressed concerns regarding flooding and other drainage impacts that would result from the development, or that they believed would result from the development, there was no testimony or evidence presented at the hearing that the drainage design for the project did not or could not meet adopted DD-ECM standards, nor was there any expert testimony offered reviewing the project's proposed drainage design in that manner. This appeal turns on timing And respectfully, it relies on an incorrect construction of what the approval requirements are. So in terms of what the drainage manual requires and what's required for approval of a preliminary plat. And it confuses a technical requirement for the mounding analysis as a prerequisite to preliminary plat approval. And it's simply not. So in our materials, and I won't restate them here, we cite several cases addressing what's required for a preliminary plat approval. And what a preliminary plat does is determine whether appropriate provisions, and that's the language from state law as well as your subdivision code, have been made for the public health, safety, drainage, and related interests. And there's abundant case law talking about preliminary plots are just that, they're preliminary, subject to conditions. And it's the conditions that ensure the compliance with all the relevant standards. And it's the risk incumbent upon the developer to ensure that as the project goes through the process that you can then actually comply with those standards. So this is a risk proposition for the developer as opposed to risk proposition for the community. Mr. Weston's characterization of what the drainage manual requires is incorrect. Respectfully, it's confusing. to not just a layperson, but frankly to an experienced practitioner, the provisions aren't always abundantly clear. And I think what creates the confusion here is that it talks, there's distinction in the manual between a preliminary drainage report, which is what's required for preliminary plat approval, and has to be included in what goes to the hearing examiner, and a complete drainage report. which sometimes is referred to as a final drainage report. And those terms are not used consistently in the manual, but the hearing examiner specifically found and public works staff concurred that the mounding analysis would be completed before final engineering approval, that it was not required for consideration of the preliminary plat, which makes sense because that particular section of code appears not in the preliminary plat approval criteria, but in the infiltration section. So it's a very, very lengthy document. It's very, very complicated. But county staff has consistently applied this manual over 20 years to say that the mounting analysis is completed prior to fire engineering approval, not for preliminary plat approval. And that's been consistent, and that's what was done here, and it's the way that these standards have been applied and should be entitled to some deference by the board in considering this decision. Importantly, the hearing examiner's conditions here preserve all of the requirements that the appellants invoke in their materials. There's conditions requiring compliance with the drainage manual, including all of the provisions that they've cited. We have to control stormwater through all phases of the project. That's a separate condition. We have to obtain construction permits and all other permits and approvals for review and acceptance before we can have, including erosion control, before you can have construction permits issued. And I just want to be really clear that it's also the applicant's understanding that we have to have all of those approvals in place before any tree gets cut. So there is no early clearing grade, there is no deforestation, I don't like that term. clearing and grading that occurs on the site without that final engineering approval in hand and the associated construction permits. The last thing I'd like to address is the relief that the appellants have requested. So first they asked the board to reverse the hearing examiner's decision and that's not warranted because there's no error here that would justify that. Second, they asked the Board to remand, and the materials that said CPED, this morning they said to the hearing examiner, but regardless, to require submittal of the groundwater mounding analysis and a further hearing with additional public review. But doing that would be, adding requirements onto the existing code that do not presently exist specific to this project. I don't think that would be appropriate. Similarly, there's nothing in the drainage manual that requires that the mounding analysis be submitted out for public comment, public review, or anything in addition to what the submittals require. And I think I, That went faster than I thought, which is great. I love to have extra time. But I just wanna really reiterate here that the applicant, is not not going to do a mounting analysis. The applicant is going to do a mounting analysis. It will be submitted. It gets through a thorough review. There's a very complex process. If you want to have a good way to go to sleep and want to read all the Salmon Creek drainage standards, including all those requirements, as I'm sure these poor folks have done, it's a robust process. That mounting analysis gets submitted. It goes through detailed review by county staff. That review can be iterative, meaning they could have comments on it. It could go back. just like any other kind of design and construction plan before it's finally approved. And only after that happens do permits issue, which allow the clearing, grading, and development of this property in a manner consistent with the Growth Management Act to put density where density is supposed to go in urban areas. That concludes my argument. Subject to your questions, Commissioner Menser, others?

I have one. And I read a lot of this in my head's a little fuzzy, so I may have just can you clarify for me when we talk about the salmon creek. Like, are there special provisions that apply to the questions that were for us that don't apply wouldn't apply if it was outside this area and can you explain what your understanding of those.

So I'm not a drainage expert, but I know just enough about this to be dangerous. So I'll do my best to answer your question. You have the overall drainage design and engineering manual, which is your countywide drainage standards. And then, because of all this flooding that happened in the late 1990s, At that time, the county and the city of Tumwater together put in a moratorium on development because they were concerned about flooding in this area due to high groundwater. Coming out of that process, they adopted these interim, and I'm using the air quote there because here we are 26 years later, and if you open up that section of the code, it still says interim, that are specific to how drainage has to be designed for this particular basin. And as part of that, there is this unique requirement, I think it's unique, I believe it's unique, for this mounding analysis in the Salmon Creek drainage basin, which was developed by county contract hydrogeologists after much study. And the same standard is applied in the city of Tumwater and Thurston County for every place that falls within this Salmon Creek drainage basin. So these folks are absolutely right. They have high groundwater. It can cause horrible flooding. It's very important to manage. Don't want to have our development inundated with it either. And so it's really important to comply with those standards and they're unique to this area. All right, thank you. Thank you so much.

525, I think, Madam Clerk. 523.

523, if you need it. I have just a couple comments. I appreciate the opportunity just to come back and say a couple things. There was one, Bruce, comment that was made by Mrs. Burgess citing a case where the developer could take risk of not getting future approvals by proceeding with a project. And these were things that we were concerned about. would mean the developer here could deforest the land. Obviously, she addressed that. We did research the drainage mountain and found that it actually prohibits land clearing, which she clarified, so I won't comment on that. But one thing that I would kind of come back to is the Salmon Creek drainage basin was interim. It is frustrating for a person that was part of the development process to see it still as interim out there. Everybody does a does approve it, and it is a standard that everybody uses for design. And it further focuses on the mounting analysis must be done before anything else can take place. The comment was made that the public didn't say anything during the appeal process or during the hearing, and that's true. Because we couldn't comment. There was no mounting analysis done or completed to comment on. And we didn't know what was happening in that realm until later. So it was difficult to make a statement if you don't have anything before you to comment on. And so that mounting analysis is a major component of this. Anything, any infiltration inside of whatever is designed, if it raises any groundwater flooding within the Salmon Creek drainage basin, it's a no. And so that's why it's an important point that we bring up over and over on this subject. I would say, oh, thank you, I think I have this one. Yeah, I do. So one of the comments that Mrs. Burgess brings up, and obviously I'm not a lawyer here, and we had made a few mistakes in our filings. However, it's our heartfelt concern that removing many trees, increasing the rainfall hitting the ground, as well as building on an aquifer with high groundwater to begin with is just a flood waiting to happen. To keep it brief, our bottom line is to apply the procedures that the county has for such an area as this. And in this situation, we ask that you please follow your own rules for the protection of myself, neighbors, plenty of neighbors, and the new homeowners to come, that they're not going to be affected by any of the potential groundwater rise or flooding that's going to occur, and it will occur. It occurs every year. Whether there's a high rain or not, we typically see rain or water come break the ground surface nearby, so I'm sure you understand why we're worried about our properties being flooded.

Nope, that's fine.

I was hoping it was somebody trying to save me from this moment. I'm obviously a little bit nervous, but what we're really trying to bring Is you know is is the attention to this is to this matter and before it's too late for something that's that can't be done to correct it and it's this this is, I mean one comment just personal. That the standards, the salmon creek drainage basin was only one of a number of areas that were affected by the 99 floods on the 2000 report that came out that are the standards for. apply to many basins, Salmon Creek is one of them. And it's important to understand that it's a huge impact. And I would just charge you to take a look at some of the things that are put on the county as a result of the impacts that could potentially be made by this flooding. And with that, I kinda yield my time back. If you have any questions, feel free. Thank you. You're welcome.

Okay, that concludes the hearing. The board will issue its written decision on or before July 13th, 2026. And with that, we will move to the next piece of our agenda, which is a closed session. So last folks to. recording in progress okay it's 10 49 we ended the closed session uh earlier than anticipated but uh there's nothing more on today's business agenda so the meeting is adjourned thank you