North Greenacres Neighborhood

North Greenacres Testimony for Temporary Moratorium 6/ 28/05

Supreme Court Supports Time Out for Planning Areas

June 28, 2005
Spokane Valley City Council

North Greenacres Petitions for Moratorium
Reasons for Moratorium: Planning, Studying, and Protecting
RCW 36.70.795 and 36.70A.390 provide for a city to enact a moratorium as a method by which local government may preserve the status quo so that new plans and regulations will not be rendered moot by intervening development.
A. Legal Authority for Cities to Enact Moratorium
A limited Moratorium does not constitute a “takings.”
Principles for a Moratorium
B. Summary of Issues
1. Spokane Valley’s Comprehensive Plan Process
2. Neighborhood Planning to resolve transportation, parks, etc
3. Citizen Involvement in Plans that effect Land Use, Zoning, Ordinances
4. Studies Needed to Adequately Address Infrastructure
i. Schools
ii. Parks
iii. Sewer and Waste Water Treatment Facilities
5. Impact Fees
6. Environmental
i. Area Geography
ii. Proximity to River
iii. Distance to Aquifer
iv. Natural Drainageways and Stormwater
v. Protection of River and Aquifer`

7. Decisions Cannot Be Arbitrary and Capricious

8. Transportation
i. Geographically isolated by river on two sides and freeway on the third.
ii. Access to area is usually limited to two roads
iii. Barker Bridge and Road will be under construction – Leaving only 1 road – Flora Rd.
iv. Neighborhood roads in poor condition – increased danger from development and construction generated traffic.

North Greenacres Neighborhood requested this moratorium last August. This development moratorium, reflected by 174 new signatures this June 2005, reiterated the petition that was lost for a few months at City Hall, of last August 2004. The purpose of this petition was to allow full participation in the development of the city’s new Comprehensive Plan and adoption of policies, studies and regulations. We are asking for studies for implementation of impact fees, so they can be enacted by ordinance for parkland acquisition in our area, as well as development of parkland and open space. Time is needed for the City to complete their Park Master Plan. We also request school and transportation impact fees studies be completed. If development continues without capturing this needed revenue the necessary taxes could well force many residents to lose their homes. Spokane Valley Public Works Department has commented that they would like to do an area wide transportation study of the Greenacres area. We need to avoid a piecemeal approach to planning. Projections of cost for new fire equipment, police and the cost of staffing both of these agencies should be part of the impact fee study since projected population has already been determined. We would like to see collaborative planning with all stakeholders. We are also concerned about cost to new homeowners but at the same time are committed to ensuring that the neighborhood receives the necessary infrastructure.

Environmental Concerns Needing Study for Protection of Citizens
The entire north side of this neighborhood is Shoreline Protection and the adjacent uses will impact all the areas within Shoreline Protection designation. We researched the effect of development on the river, and found the following information through the USGS. The ground elevation is 1990. The river’s high elevation is 1960 and low elevation is 1950 ft. That equates to a mere 30 to 40 feet of ground filtration between the land surface and level of the aquifer.

The map we provided shows that Greenacres is located over the most desirable part of the aquifer, (see maps), the highest level of transmissivity and the highest specific yield of the aquifer. This has led to complacency in protecting our aquifer and river. We have heard many of our concerns overlooked by oversimplification in stating, “The entire Valley is over the aquifer.” All areas are not the same. We are the deepest part of the aquifer and provide the greatest yield of water. We continue to request that this area be treated with the same concern as you would a wellhead because this area has the highest volume of trasmissivity. (Bolke and Vaccaro, l981). This part of Greenacres also overlays the river and we have an exchange between the aquifer and the river. From Barker to Sullivan, the river feeds the aquifer. The natural topography of the land slopes downward toward the river throughout this area. You can see Flora becomes a conduit to deposit all of the storm water and road pollutant directly into the river. Historically, storm water was cleaned as it ran through the natural drainageways. These are now being filled in. On Baldwin, drywells are taking their place. Rather than being filtered through a large area of gravel and fines, it will be a point saturation through the bottom of the drywell. This creates an intensely concentrated point of pollutants including pernicious chemicals that do not break down from bacteria. These are man made chemicals. The swale areas have been compacted along with every other inch of the property they prepared for roads and development. This should not happen. Yet, we witnessed rigorous soil compaction of areas where swales are designated. Soil compaction greatly reduces the function of the swale since it will not be able to filter because it is too compacted. This will allow incubation of mosquitoes that carry the West Nile Virus. This needs to be addressed. These all are serious public health hazards. Many older properties that have been fallow fields have lost the oral log of where the drainageways appear and will become problems for future owners.


Temporary Moratoria – An effective Planning Tool – not a taking

Most cities upon incorporation enact a one year moratorium in order to plan. Business pressures didn’t want that to happen and most residents were unaware. We are drafting our first comprehensive plan and it is vital that we don’t continue to give away for free all that should have been protected as a future legacy for our children.

The city’s push to quickly adopt a plan without allowing adequate time for research and planning is a disservice to the staff and citizens of this city. The city cannot continue development under old practices and rules. This compounds the problems and escalates shortsighted practices leading to lack of revenue necessary for the infrastructure.

They Closed the Stable After they Let the Horses Out

There are important principles that guide the need for a moratorium according to the Supreme Court ruling that is attached.

Principle 1: Reasonable Moratoria allow the regulating body the necessary time to study and formulate solutions to significant land use and environmental problems affecting society.

The Supreme Court ruled in April 23, 2002 that property owners or developers claims of regulatory “takings” were unfounded. The Tahoe Regional Planning Agency (TRPA) authorized a temporary moratorium. The ordinance and resolution banned development for a limited period, these regulations preserved the bulk of the future developmental use of the property.

1. Temporary moratoria are fundamental to the planning process and are traditionally recognized by courts and authorized by state statutes as background principles of state law. Petitioners (Developing Interest) conceded in their opening brief that planning or time out moratoria are validly used by planning agencies to provide “breathing space” and contend only that the “dubbed temporary moratorium”, in this case was in fact, a permanent substantive change in regulations. (Petitioners; Brief at 4-5)






Spokane Valley’s Comprehensive Planning process is in fact a permanent substantive change in regulation and land use.

Temporary moratoria constitute a normal delay in the planning process and cannot constitute a facial partial or temporary taking.

Spokane Valley will not face substantive legal risk since temporary moratoria is an appropriate and effective planning tool. Interim development controls and moratoria are fundamental to a rational, defensible planning process.

A Colorado court recognized that a temporary halt on development activity during a period of study is not only reasonable, but also ensures that government acts in a manner that is thoughtful and deliberate, not arbitrary and capricious. Williams v. City of Central, 907P.2d701,706 (Colo.Ct. App. 1995) This was upheld by the attached Supreme Court decision.

Spokane Valley is writing their first Comprehensive Plan. GMA requires early and continuous citizen participation. Areas residents that have sought relief through planning measures for their area should not continue to have to pay the cost while catering to development interests. Residents in our area are facing thousands of dollars in fencing improvements, increased taxes and bonds for new schools due to development pressures. Parks are woefully underserved, the City’s Park Master Plan is not completed, nor is there money to purchase the necessary parkland to adequately serve the public.

An enacting authority must diligently pursue completion of the planning process, including studies, analyses, public participation, and the drafting of legislation. The need for the moratorium is justified by the need to pursue further study of the matter at hand. (i.e. Waste Water Treatment, impact fees, parks plan, SVCP
Process)

The significance of planning to zoning regulation was fully recognized when the U.S. Department of Commerce issued the Standard State Zoning and Planning enabling Acts in 1926 and 1928. There must be a reasonable standard to avoid tyrannizing property owners.

The Comprehensive Plan is the essence of zoning. It is a rational process that protects us from a “Gallup poll” or mob rule. 74 Mich. L. Rev. 799 (1976 and Geo-Tech Reclamation Indus v Hamrich, 886 F 2d 662 (4th Cir. 1989)

Principle 2: The need for temporary planning moratoria is the prevention of nonconforming uses or development inconsistent with the purposes and policies of the planning legislation being formulated.

Spokane County created an enormous amount of nonconforming uses without any provision for mitigation bringing harm and upheaval to many neighborhoods and areas. While at a GMA meeting, some of the staff found amusing a description of the likelihood of horses chewing on a neighboring home if there was only a 5 foot setback. Yet, a few weeks later the city drafted an ordinance without ensuring that abutting acreages would be protected with privacy fencing. This was with full knowledge of harm it would potentially bring to many citizens. This has accrued thousands of dollars in expense to protect landowners from potential hazards that could bring lawsuits.

North Greenacres Neighborhood wisely asked for a moratorium while petitioning for rezoning, to address the other mitigation measures needed and to take part in the Comprehensive Plan process. North Greenacres Neighborhood is concerned about the river and aquifer, as well as transportation. We asked for time to address these concerns. Unfortunately, there wasn’t a timely response. It was truly a case of the stable being shut after the horses were let out.

In fact, the Supreme Court describes it exactly in this manner.
“Any movement by the governing body of a city to zone would, no doubt, frequently precipitate a race of diligence between property owners, and the adoption later of the zoning ordinance would in many instances be without effect to protect residential communities—like locking the stable after the horse is stolen.” Downham v. City Council of Alexandria, 58 F .2d 784, 788 (E.D. Va. 1932)

This was written during an age where common sense prevailed. North Greenacres found that by the time the city council signed the rezone ordinance, every development was vested and got under the zoning wire, as well as increased the density of one development from 32 to 55.

As stated in Chicago Title and Trust Co. v. /Village of Palatine, 22 Ill App. 2d 264, 160 N.E. 23 697, 700 (Ill. App. 1959):

“It would be utterly illogical to hold that, after a zoning commission had prepared a comprehensive zoning ordinance or an amendment thereto, which was on file and open to public inspection and upon which public hearings had been held, and while the ordinance was under consideration, any person could by merely filing an application compel the municipality to issue a permit which would allow him to establish a use which he either knew or could have known would be forbidden by the proposed ordinance, and by so doing nullify the entire work of the municipality in endeavoring to carry out the purpose for which the zoning law was enacted.”

Our present draft comprehensive plan and land use map is open for examination and public comment. Just as our rezone caused a run on vesting, we witnessed a developer at one meeting trying to change zoning on his specific properties for his own personal gain. Studies are necessary to keep this process from political pressure of a monied interest.

Principle 3: Temporary Planning Moratoria is for facilitation of public debate and input into the legislative process. Without this process regulations will likely fail to protect the full range of community values and to accomplish the intended goals of the governing body. As stated by the Supreme Court of Minnesota, one of the “persuasive reasons for permitting moratorium ordinances is to derive the benefits of permitting a democratic discussion and participation by citizens and developers in drafting long-range use plans.” (Almquist, 245 N. W. 2d at 826 (emphasis added).

Example 1:
The city would be addressing a larger planning and environmental concern in insuring regulations for stormwater. Drainageway preservation needs to be studied and enforced.

In discussion with City Manager, Dave Mercier, We asked, “Who would be responsible if stormwater provisions were inadequate and future homeowners sued neighbors for water backing up on their property?” “Who would be responsible?” His response was, “This is a civil matter.” This provokes serious questions regarding ensuring public health and safety in the permitting and oversight process of development, including ordinances that place the legal responsibility with those who approve plans and those who design them. Bond money should mandated and held by the city for a number of years. This would allow time for drainage plan to show and ensure that it functions well in adverse, worse case conditions. Damage to properties in worse conditions would have recourse as city policy.

Example 2
The harm a minimum five foot setback ordinance creates was not considered in light of all the places it would be used. It did not consider the full range of community concerns and values. In fact, at the set back hearing I attended, objections were treated as if we were foolish children to counter something the wise county had already instituted. Spokane Valley seemed focused on a uniform, one size fit all standard. This assumed there would be a home another five feet from the property line, not livestock. Neighborhoods, such as ours, deserve consideration. The County instituted the 5 foot setback to satisfy a developer who wanted it. The developers and builders are at an advantage since this is what they do on a daily basis. Most residents are busy with their lives and rely on our elected officials to look at both sides of the coin.

A development Moratorium in support of a comprehensive land use planning effort is precisely the type of delay associated with the “Process of Governmental decision making” referred to in Agins and was the progenitor of the phrase used in “First English”. “normal delays in the development approval process” are not takings.

Unfortunately, the Planning Commission seems to be most distressed about causing development delays and their subsequent costs. Deliberations and delays imposed on the neighborhood were much more costly due to lack of legal protection. There was a significant lack of studies basic for fiscal and environmental protection in making their decision. Our necessary input in the larger planning process of the Comprehensive Plan and the larger picture of community values was also ignored. The policies and goals adopted at the end of the SVCP process will be moot points if the status quo is not preserved to enable optimal planning, since this neighborhood’s geography limits possibilities.
(Please note North Greenacres Neighborhood did not receive equal treatment of Ponderosa/Rotchford Estates, nor even the consideration of the $1800 we had to pay. The City Council gave Ponderosa/Rotchford Estates protection without fee.)

In Zilber v. Town of Moraga, the court upheld a moratorium for completion of an open space preservation study and rejected the supposition that it was “a taking.” 692 F. Supp.1195, 1206 (N.D. Cal. 1988).

This certainly supports our request to ascertain the study and ability to have impact fees collected for parks and open spaces. Impact fees cannot be a round figure we take out of thin air, but require a valid study of what can be legally and reasonably collected and an ordinance to collect them. Necessary background data should be gathered, analysis and policies created. (Miller v. Bd.of Public Works).

Law: Common Law System Distinguishes Itself from the European Civil Law by recognizing that estates in land have present and future interest. (Ashville B. Gulliver, Law of Future Interests at 73 (l959)

Supreme Court 14th Amendment Legal Opinion on what Constitutes Property.
Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all. . . . This right to choose one's calling is an essential part of that liberty which it is the object of government to protect; and a calling, when chosen, is a man's property right. . . . A law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law.'' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116, 122 (1873) (Justice Bradley dissenting).

Agricultural lifestyle - animal keeping - is lawful employment - it is what we employ our time doing. We researched our zone and came to live here based on that zoning. Non-conforming use should not render our lives useless nor be discarded like a piece of paper. We have a right to transfer the future of what we built to our heirs. Employing our time raising animals or crops, a chosen profession or ad vocation is property. There is a loss of liberty. In order to continue the diverse interests that enrich the lives of the citizens of the Spokane Valley, there should be equal protection under the law. We recognize that we are in transition. Ordinances can be made at any time. The city has demonstrated their abject disregard for the suffering they have caused countless people in this city by not bringing forward protective ordinances. It is all the more distressing since it is an additional financial problem that must be addressed by many of us. Our lives didn’t change but we are forced to bear the cost of protecting our immediate property from development by paying for privacy fencing, adding trees for screening, etc. This is not an aesthetic problem this is a serious health and safety issue as it becomes an inviting danger for children to crawl into fenced pastures. Most of us have a fixed budget. Medical costs are rising and continue to squeeze our budgets. The escalating housing market has doubled the value of our properties but our uses have not changed. We are not all engaged in trading up. We came to build our lives here not as a real estate investment. This transition should not turn our lives upside down when it can be prevented by policy and regulation.

Waste Water Treatment - Facts of Falacy? Conclusion - A Big No

Waste Water Treatment Facility

Spokane Valley is not able to fund the infrastructure of a sewer and a Waste Water Treatment Facility. They contract with the County. Spokane County claims they magically now have more capacity. The projected new plan for a Waste Water Treatment Plant is a faith estimate. Things can still go awry. We are supposed to plan responsibly. King County three times underestimated the cost and capacity of Waste Water Treatment Facilities. There is a 2005 lawsuit currently in progress over who had the most rights to capacity. They actually used a lottery system to decide who was awarded the last 140 permits. Twelve winners used up the remaining capacity – and of course the losers took it up in court. We should learn from others mistakes.

At present, builders are encouraged to pay for building the sewer because they believe it saves county dollars. In fact, they are giving away our potential development rights and the ability of those on the 6 year plan to actually be hooked up if their faith estimates are wrong. Spokane County and Spokane Valley have an inherent responsibility to equally represent citizens of all financial means. Average citizens low on the list for sewer service may end up without the ability to hook up, if the promises of a new waste water treatment plant do not materialize in time, and vested development rights are put ahead of those on the “6 year plan.” This smacks of a class system that rewards those with money and ignores the average working class. We will also pay the future inflationary rate of hook up and the county fee at a projected inflationary rate of more than $600 than it would cost today. That is a discriminatory policy that is at a cumulative cost of $15,600 of extra expenses for just 260 parcels. This is average taxpayer dollars, not developer speculation dollars. The County is taking away our individual right to be able to subdivide or develop our own property, since we can’t privately fund bringing sewer for one property. We can only afford to do this is if we sell out to a developer.

County believes that the developer doesn’t have to pay prevailing wage and can put in sewer cheaper than the county. This is shortsighted because the lower wage earner typically does not have benefits such as health insurance. These same lower wages the community pays for since they must look for social assistance and utilize our emergency rooms at a high price that we all pay for because by law they must receive medical treatments if they come to a hospital. Is that a savings?

This is the case we referred to earlier regarding shortsighted and incorrect WWTP capacity projection. The lawsuit itself doesn’t apply but the scenario sounds very plausible if we do not exercise caution about protecting the river and our aquifer.

Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 53967-1-I
Title of Case: Robert A. Funk, et al., Appellants vs. City
of Duvall, Washington, et al. Respondents
File Date: 02/28/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 02-2-27905-8
Judgment or order under review
Date filed: 03/11/2004
Judge signing: Hon. Michael J Fox


JUDGES
------
Authored by Mary Kay Becker
Concurring: C. Kenneth Grosse
Faye Kennedy


The treatment plant was expected to last until the end of the century. As it turned out, however, the plant as designed was insufficient to serve the needs of a growing city. Both the number of households and the average use per household were greater than originally anticipated. And as time went on, the City also had to begin dealing with pollution problems caused by the treatment plant's discharge of effluent into the Snoqualmie River.


In conclusion, North Greenacres has demonstrated that we legally meet the criteria for a temporary moratorium of development. This temporary moratorium is based on the need for environmental protection, preserving the status quo to allow planning, and that the implementation of community desires to be adopted at the end of the comprehensive planning process can be a reality, not a moot point. The temporary moratorium gives the city time to study impact fees and clarify stormwater and natural drainageway preservation.

North Greenacres is unlike other areas over the aquifer as shown on the map.
We hope this captures the picture and helps in the decision making process.

The City Council unanimously voted against giving North Greenacres the time out needed to plan and preserve our area.

Email us
maryp@northgreenacres.org