MUKILTEO—Phil Albrecht, the City of Mukilteo’s Hearing Examiner, heard public and stakeholder testimonies concerning a recent appeal on the Harbor Grove Subdivision development proposal during a public hearing Thursday, December 5.
Harbor Grove is a proposed development of a seven-lot subdivision on 2.43 acres of land with associated grading, drainage improvements, landscaping, and street frontage improvements. The subject property resides within the RD 12.5 zoning district.
The proposal includes grading quantities more than 1,000 cubic yards. This subdivision has been previously reviewed and approved by a Hearing Examiner but was appealed to Superior Court back in June and was remanded back to the City and Hearing Examiner for reconsideration of the identified issues. The purpose of Thursday’s hearing was to focus on these issues.
Dave Tyler, the appellant in that case, said he believed the revised design was an improvement overall in terms of the appearance of the retaining wall on the west side of the property but that it “comes with a tradeoff” by creating a two-to-one slope down to properties on the west side of the project.
“This new slope face will result in a different drainage and runoff pattern and increases the likelihood of erosion and sedimentation impacts on the adjacent properties,” said Tyler. “That slope is going to be steeper than the existing condition and will be comprised of filler material. So the minute they removed the vegetation from that slope they also created a potential hazard because there will be no drainage system in place and it’s gonna be awhile before getting a system in place.”
Just some of the infrastructure needed, Tyler noted, involves grading it out, putting in a pump, and a pipe that redirects water back to the primary drainage system further east.
Tyler continued that by permitting construction crews to work in wet weather conditions this could result in a potential mud slide flowing westward. The City did submit a Wet Weather Erosion Control Plan, which is required by code, but Tyler said he does not believe this plan contains efficient safeguards to protect the adjacent properties.
He suggested the Examiner request additional information from the city and applicant to ensure the neighbors are protected, and erosion and sedimentation impacts as a result of clearing, the filler material, he increased slope, and lack of drainage system.
Mukilteo resident Sylvia Kawabata testified on another issue regarding the retaining walls posing the question why the applicant did not evaluate fills more than 10 feet in depth when “it’s obvious there will be fills greater than 10 feet in the proposal.”
The current proposal has the same thing, Kawabata noted; seven lots with a minimum lot size of 12,500 square feet. However, the area lots in five, six, and seven adjacent to the retaining wall, where the fill is, will need to be leveled off the lot size resulting in a fill of greater than 10 feet.
“In some areas the fill is proposed to be 30 to 50 percent deeper than ten feet,” said Kawabata. “However the city is saying that the current revision, without and updated geotechnical engineering study or revision of the building’s location, or even a reduction of the lots, is still a viable project. This is not acceptable.”
Sarah Kress, Senior Planner of Mukilteo’s Planning and Community Development Department, said the plan meets the city’s code requirements and development standard requirements as well as stormwater.
“Under those constraints that is the rationale saying that we would like to move forward with approval on this,” said Kress.
Duana Kolouskova, Attorney for the applicant, Seattle Pacific Homes LLC (otherwise known as Sea-Pac Homes LLC), said that a more robust SEEPA analysis has been conducted (with no appeal) and the question of moving the retaining wall back as described by the court has been completed.
A key part of the proposed project’s construction process, as dictated by state and county law, relates to a State Environmental Policy Act (SEPA) “DNS”: a “Determination of Non-Significance” as mandated by the State Environmental Policy Act. To translate, this is an overview taken by the relevant regulatory body to ensure that construction will have a “non-significant” impact on the surrounding environment. For example, a property owner bulldozing an established native wildlife habitat to construct a large building would be considered a significant impact, and likely disallowed under this process.
In August 2023, Harbor Grove was issued a DNS by the Mukilteo City Planning Department, despite the protests of dozens of Mukilteo neighbors and environmentalists alike who took issue with the project. According to a case chronology document provided to the Lynnwood Times by a Mukilteo City Councilmember, “The DNS contains no conditions and does not acknowledge public comments.”
In December 2023, a municipal appeal against this DNS by Mukilteo community members took place. During this process, Mukilteo City Planning Director Andrew Galuska testified before Hearing Examiner Alex Sidles about the project’s compliance with SEPA, stating, “…The City didn’t analyze this because we didn’t feel the site itself has native vegetation… It’s fairly overgrown, but it is kind of ornamentally planted. There’s bamboo… the analysis wasn’t done because, at current, there is no native vegetation.” Per varying regulations, a percentage of “existing native vegetation” must be preserved when construction projects require large-scale uprooting.
Hearing Examiner Sidles responded by mentioning plaintiff David Tyler’s assessment that “the area of existing native vegetation is 90% of the site,” but seemed satisfied with the idea of a “vegetation plan” to bypass “required vegetation preservation… we’ll go in and plant, plant, plant until it hits 25% [native]. Wouldn’t that be another way of achieving the same standard?” According to the chronology document, photographic evidence displays “the presence of native shrubs, groundcover, and trees,” contradicting Galuska’s testimony.
The dispute over native vegetation went unresolved at this December hearing, due to an apparent lack of any witness specializing in botany. Hydrogeologist Scott Kindred presented several photos of the site as evidence, while giving a disclaimer: “This whole requirement for native growth is not my area of expertise.” Hearing Examiner Sidles, hardly more of an arborist than Kindred, responded, “To my non-expert eye, a lot of it looked native… if your intent was to convince me that most of this lot is just something obviously not native, such as lawn or blackberries… I think you kind of showed the opposite of that, actually.”
Despite these remarks and confusion over other potential contradictions, the Hearing Examiner’s eventual decision in January 2024 denied the Tyler land use petition. Unsurprisingly, an appeal of Sidles’ ruling was filed shortly afterwards. Based on the Land Use Petition Act (LUPA), this new appeal was scheduled to be reviewed by the Snohomish County Superior Court in the summer.
In the spring, however, a convenient change to local law seemed to give Sea-Pac room to start developing the property before the case could progress further. Ordinance No. 1494 was adopted into the Mukilteo Municipal Code (MMC) on April 1, “modifying land use procedures” previously detailed in Section 17.13 of the MMC. This “eliminated the mandatory stay for judicial appeals”, per the chronology document, which elaborates that “the ordinance would lift the automatic stay for that [Harbor Grove] project… Staff did not disclose that, as a result of this ordinance change, it intended to issue construction permits that would allow Sea-Pac Homes to commence construction… no other projects in the city would be affected by the change.”
On April 10, the new ordinance took effect, and on April 18, the Harbor Grove project was given a construction permit, “despite the pending LUPA appeal and the prior knowledge that clearing of the site will result in destruction of disputed evidence (native vegetation)”. Development proceeded through May, resulting in the loss of vegetation from approximately 60-70% of the plotted land, including “old-growth trees”, per petitioner Jon Boyce.
In June, the second appeal was reviewed by the Snohomish County Superior Court, with Judge Richard Okrent presiding. The Court took issue with statements made by Mukilteo land development personnel, specifically City Planning Director Galuska. An Order Granting Appeal document signed by Judge Okrent reads, “Not only is Mr. Galuska’s testimony contradicted by substantial evidence in the record about the environmental impacts, this testimony is an admission of yet another failure to comply with SEPA’s procedural requirements.” Citing Section 197 of the WA Administrative Code, which requires that “environmental analysis, protection, and mitigation measures” be “adequately addressed”, Judge Okrent wrote that “the [Mukilteo City Planning] Department did none of these things… as a result, the Determination of Non-Significance is faulty…”
Judge Okrent granted the Tyler appeal on June 27, overruling the Hearing Examiner’s January decision and sending the case back down to the city. According to the chronology document, however, Sea-Pac’s development on the Harbor Grove site continued into July, including “excavation, grading, drainage, and utility work.”
Mukilteo’s Hearing Examiner says he should have a decision within the next couple of weeks.
Author: Kienan Briscoe
