Opponents of Thurston County’s interim building permitting process on potential Mazama pocket gopher habitat hope a recent state board ruling will bolster a lawsuit they filed last year in Lewis County.
The Western Washington Growth Management Hearings Board ruled last week that a portion of Thurston County’s permitting process was out of compliance with the state’s Growth Management Act.
The board found that the county’s Interim Screening Process resulted in de facto amendments to the county’s Critical Area Ordinance by placing controls on land use activities that differ substantially from the current Critical Area Ordinance adopted in 2012. It also determined that the county didn’t include public comment or participation in the change to the development regulation.
The board’s ruling affects only the last portion of the permitting process, but it’s the one that most affected property owners are concerned about: What happens if the gophers are living on property where someone wants to build a new home, or rebuild a house, or take on another activity that requires a county building permit?
“It only strengthens our argument (in) Lewis County that says ‘Stop the process Thurston County, you’re violating the law,’ ” said Troy Nichols, executive officer with the Olympia Master Builders, which challenged the county’s action. The Master Builders have about 400 members in the region.
The group joined up with the Thurston County Chamber of Commerce and Hinkle Homes to file the complaint with the state board, which hears and determines allegations that a city, county or state agency has not complied with the goals and requirements of the Growth Management Act.
Last November, the three groups also filed a lawsuit in Lewis County Superior Court asking for an injunction against Thurston County’s interim permitting processes governing land use in areas believed to be habitat for the gopher.
“The two are related; they’re not the same,” Nichols said.
In April 2014, four subspecies of the pocket gopher — known as the Olympia, Roy Prairie, Tenino and Yelm pocket gophers — were listed as threatened under the Endangered Species Act. Last June, the county adopted a review process for building permit applications that was recommended by the U.S. Fish and Wildlife Service in response to the listing.
Before a permit is issued, the process may include as many as three property site visits that can only be conducted between June 1 and Oct. 30, county officials say. If gophers are detected on the site, the landowner must work directly with the federal government for mitigation, or wait until the county has finished its Habitat Conservation Plan, to move forward with the permitting process.
Both the GMA complaint and the Lewis County lawsuit contend there was a “lack of public process” in the establishment of the county’s interim gopher reviews.
In a nearly 30-page ruling, the Growth Management Hearings Board agreed with the petitioners that there was a lack of public process, such as hearings or a Board of County Commissioners ruling, in determining the county’s final step of the gopher review process.
“All along this litigation has been about fairness and inclusion for the residents of Thurston County when it comes to local land-use decisions,” David Schaffert, chief executive officer of the Thurston County Chamber of Commerce, said in a news release. “We’re happy that the (state board) agreed with us, and we look forward to making sure the county maximizes citizen involvement from this point forward.”
The county must comply with GMA requirements by Nov. 8, according to the ruling.
“I think it’s important to note that the (state board’s) ruling left intact the majority of the county’s process,” said Thurston County manager Cliff Moore.
Thurston County Commissioners met in executive session with their attorney last week to discuss the board’s ruling. No decisions were made at the meeting, Moore said.
“Staff and the commissioners will need a little more review time before the commissioners can consider options for moving forward,” he said.
He said the county expects to resolve its area of non-compliance before the beginning of the gopher review season on June 1.
Commissioner Bud Blake said Thursday he couldn’t discuss the ruling because it could influence the way Commissioners Cathy Wolfe and Sandra Romero vote on some of the options that the three-member board is considering. He said they could take action on it next week.
Wolf and Romero did not return calls seeking comment on the board’s ruling.
Meanwhile, Nichols said while the petitioners were happy that the state board ruled in their favor on part of the gopher review process, the groups are thinking about challenging some of the state board’s other determinations.
“They did let the county off the hook on several significant issues,” he said.
Nichols said the county’s interim gopher process has had a chilling effect on development in the region. If gophers are discovered on a property, the owner’s building project is left in limbo because the county is still developing its Habitat Conservation Plan, he said. In some cases, because of the gopher review process, it can take as long as two years to obtain a building permit, he said.
Nichols said the groups’ goal is to make sure there’s public involvement in the county’s future land-use decisions, and that the Habitat Conservation Plan that the county will eventually adopt “protects critical habitat and threatened species, provides certainty to property owners, and is funded in a way that is fair to all Thurston County residents.”
“We want to work with the county moving forward,” Nichols said. “We’d like to settle (the Lewis County) case, quite frankly. Litigation is expensive.”