Dumping Stormwater into Gig Harbor
July 6, 2017
In addition to height, setback, and density allowances, on June 26, Mayor Guernsey was the deciding vote to continue processing the Cheney's Development Agreement that includes City approval to dump the stormwater from the One Harbor Point Project directly into Gig Harbor Bay.
On July 5 and in response, Attorney for Jeffrey Katke, Carol Morris, sent the following communication to the Washington State Department of Ecology | Water Quality Program:
From: "Carol Morris" <firstname.lastname@example.org>
To: "Angela Vincent (ECY)" <AVIN461@ECY.WA.GOV>, email@example.com
Cc: "Amanda Heye (ECY)" <ahey461@ECY.WA.GOV>, "Chris Montague-Breakwell (ECY)" <cmon461@ECY.WA.GOV>, "Rian Sallee (ECY)" <rsal461@ECY.WA.GOV>
Sent: Wednesday, July 5, 2017 1:18:15 PM
Subject: Re: Gig Harbor NPDES permit -- Stormwater Manual
On June 26, 2017, the City of Gig Harbor City Council held a public hearing on the issue whether it would "continue processing" the One Harbor Point Development Agreement. The City adopted Chapter 19.08 (attached), which the City believes allows the City to waive development regulations for individual developers on particular properties. This bargaining and sale of the City's development regulations to the highest bidder also violates RCW 36.70B.170(1), which prohibits development agreements that are inconsistent with a GMA City's development regulations.
During this hearing on June 26, 2017, the planner assigned to the One Harbor Point development agreement, Peter Katich, stated that the City's storm water manual currently allowed a developer to simply dump the stormwater from a project directly into Gig Harbor Bay.
He confirmed that One Harbor Point asked that this existing manual and code provision not only apply to its project, but also that the project be vested to this storm water manual for a period of 10 years. Mr. Katich also stated that the development agreement was vested.
As you can see from the attached draft of the proposed development agreement, the One Harbor Point developer is asking to be vested to the existing storm water manual (Existing Development Regulations, Section 3(K)) for a period of 10 years (Section 6, 7). (I was mistaken in my earlier e-mail when I said One Harbor Point wanted a 20-year agreement.) On June 26, 2017, the City Council voted to continue processing this draft development agreement. The materials relating to this project are posted on the Gig Harbor website.
My client, Jeff Katke, submitted an application to the City for an amendment to chapter 19.08 GHMC that would prohibit the City from entering into development agreements with developers for the purpose of allowing them to "deviate" from underlying code requirements. The City voted to "cease processing" his application. Because of his application to amend chapter 19.08 GHMC, many members of the public learned for the first time of the City's adoption of a code purporting to allow developers to waive development regulations through approval of development agreements.
Apparently, the City Council thought that adoption of a resolution to expand public notice of its illegal activities with regard to such development agreements would placate the citizenry.
So, it passed a resolution expanding public notice to address the One Harbor Point project -- and also because the City also plans to consider another development agreement for a nearby project that also could only be approved through this process. This development agreement will be for the applicants Milgard, but it is my understanding that it has not yet been submitted.
Jeff Katke filed an appeal of the City's activities relating to his application and the resolution on public notice for development agreements to the Growth Management Hearings Board (CPSGMHB Case No. 17-03-0002), which is currently pending. I would be happy to send you any pleadings filed in this appeal. I am attaching the Petition for Review.
With regard to your final comment about what is a "complete application," you will be interested to know that Jeff Katke's proposed amendment to chapter 19.08 GHMC included a code requirement which listed the materials that would constitute a complete application for a development agreement. In Resolution No. 1068, which the City passed in order to "cease processing" his application, the City asserts that "the proposed requirements for a complete application of a development agreement are not required by law." (Resolution No. 1068, Subsection D, page 2.) If Mr. Katich's statement is a correct interpretation of Gig Harbor's policy on vesting of development agreements, the City apparently extends vested rights to anything at all with the title "development agreement," because it doesn't understand the vested rights doctrine.
If you have any additional questions, please let me know. Thank you.
Carol Morris, Morris Law, P.C.
3304 Rosedale Street N.W., Suite 200
Gig Harbor, WA98335
F: (360) 850-1099
Response from the Washington State Department of Ecology, July 5, 2017:
From: Vincent, Angela (ECY) <AVIN461@ECY.WA.GOV>
Sent: Wednesday, July 5, 2017 12:25 PM
Cc: Heye, Amanda (ECY); Montague-Breakwell, Chris (ECY); Sallee, Rian (ECY)
Subject: FW: Gig Harbor NPDES permit -- Stormwater ManualDear Ms. Morris:
Your e-mail to Amanda Heye was directed to me. I am the municipal stormwater permit planner for Phase II MS4 permittees in Pierce Co.; the City of Gig Harbor is a Phase II permittee.
I am alarmed by what you describe in your e-mail to Ms. Heye.
I reached out to my City of Gig Harbor Stormwater Program contact, Wayne Matthews. Unfortunately, Wayne is out of the office until July 10th, so I will reach out to others in Public Works. Can you provide me with the name/contact information of the city planner with whom you spoke with?
As stated in your 6/27 e-mail, “At least two developers have asked the City to allow them to vest to previous stormwater manuals for a period of 20 years.” According to the City’s website, Gig Harbor adopted the 2016 Stormwater Management and Site Development Manual effective December 31, 2016 (Ordinance No. 1347). Phase II permit requirements for controlling runoff from new development, redevelopment and construction sites (see S5.C.4) requires that the City have adopted a local program to meet the requirements of S5.C.4.a(i) through (iii). This local program shall apply to all development applications submitted on or after January 1, 2017. In accordance with S5.C.4.a(ii), a Phase II permittee shall adopt the latest SWMMWW or an equivalent program approved by Ecology under the 2013 Phase I Permit. In accordance with S5.C.4.a(ii), the City has adopted the 2016 Site Development Manual effective 12/31/16.
If the aforementioned developers submitted “applications”** (as defined below) on or after January 1, 2017, then these developments must adhere to the City’s 2016 Stormwater Management and Site Development Manual. An allowance by the City that applications submitted on or after 1/1/17 can apply an earlier manual (i.e., the City’s 2010 Stormwater Management & Site Development Manual) would be a Phase II permit violation.
I appreciate your alerting Dept. of Ecology staff of this apparent permit violation. As requested, a copy of the 2013-2018 Western WA Phase II Municipal Stormwater Permit is available here for your consideration.
You mentioned that the City has “adopted a code that allows certain developers to waive development regulations…” Please provide a citation to this city code.
**Per S5.C.4.a. of the permit, an “application” means “at a minimum a complete project description, site plan, and, if applicable, SEPA checklist. Permittees may establish additional elements of a completed application.”
Municipal Stormwater Permit Manager | SWRO WQ Watershed Resources Unit | WA State Dept. of Ecology
Desk: 360.407.6276 | Cell: 360.628.4734 | Avin461@ecy.wa.gov