by Ralph Schwartz
Timberland Court and neighboring Trillium Lane off Cape Horn Road west of Concrete received final approval as a 29-lot subdivision in February. Adding homes to these one-acre rural lots could be delayed, however, by a state water requirement.
CONCRETE — Drive up rural Cape Horn Road past Hamilton and something unexpected appears just a few hundred feet east of the entrance to Rasar State Park: Two freshly paved streets cut into the stand of cedar and fir trees, flanked by streetlights.
No homes are built there yet, but wooden stakes mark where the 31.5-acre tract has been split into 29 one-acre lots.
It looks suburban, except for one thing. It’s nowhere near an urban area. Besides the park, the development is surrounded by forestland, farms and residential lots of five acres or more.
By today’s rules, the land could only hold three homes, or six if a majority of the parcel was set aside as open space. But developers Louis Requa and John Abenroth submitted their application for the subdivision, now called Forest Park Estates, one year before growth management rules went into effect in Skagit County.
County commissioners gave final approval of the development 13 years after Requa and Abenroth submitted their first application.
That’s a long time to wait for a subdivision to get started, but there may be another significant delay. The complicated legal history of water-rights requirements may have caught up to Forest Park Estates.
A lapsed deadline
Requa and Abenroth’s proposed community of “middle to high income homes,” as their 1996 application describes it, languished for so long in the county planning department in part because planning officials admittedly looked the other way on a deadline that lapsed in 2003.
“My expectation still was in ’03 that they would be getting things done relatively quickly,” said Marge Swint, the county’s project planner for Forest Park Estates. “Then it got somewhat lost in the workload. We won’t do that again, trust me.”
In an interview, Requa said he had met all deadlines. He and Abenroth work with developments routinely as partners in Skagit Surveyors and Engineers, a Sedro-Woolley firm that specializes in plotting new subdivisions and building sites for developers.
“We do this stuff every day for 30 years, we know what the code says,” Requa said. “We were never informed we had missed a deadline.”
Requa had some idea there was a problem on the planning department’s end, however. Department officials told Requa and Abenroth late last year to “hold the phone,” as Requa put it.
“No one really came out and said specifically why,” Requa said.
The planning department had some apparent legal concerns about the Forest Park Estates development. Planning staff consulted with county attorneys about the plat, but Planning Director Gary Christensen declined to offer specifics.
“The Department’s delay in processing the Forest Park Estates was to seek legal advice from county counsel regarding procedural and substantive issues, the detail of which I can’t disclose due to the confidential nature of our attorney/client privileged communications,” Christensen wrote in an e-mail.
Requa made a statement to county commissioners in February that suggested he was aware that the lateness of the project was an issue.
“We submitted an application for final plat within the five-year period, and here we are today asking for final plat approval,” Requa said during the February hearing.
He was referring to the five-year deadline on submitting final plat documents. Requa and the planning department have conflicting interpretations of the county code as it was written in 2003.
The code stated at the time, “A final plat meeting all the requirements of this chapter shall be submitted to the county within five years of the date of preliminary plat approval....”
Requa offered his interpretation in an interview:
“You must within a five-year period apply for a final plat. You read the code, it’s perfectly clear,” he said.
Requa and Abenroth submitted their final plat application on Aug. 22, 2003 — 10 days shy of five years after preliminary plat approval.
County planning officials contend that the developers should have gotten final approval within five years, or before September 2003. Final approval didn’t come until Feb. 10, 2009.
“The surveyors had their take on how they interpreted the code. We had our take on how we interpreted it, and we obviously let it go,” Swint said.
“It wasn’t that we didn’t want to get it done as soon as possible,” Requa told commissioners at the February hearing. “We just did it as we got resources.”
A threat to sue
No work was done at Forest Park Estates from 2003 to mid-2008 in part because the developers didn’t have funding, Requa said. He and Abenroth recently obtained a $500,000 loan from Whidbey Island Bank to finish the work.
Sensing the planning department’s hesitation in late 2008, Requa threatened to sue the county to get the project approved.
Requa said in an interview that he recalled calling the planning department and saying, “Are we going to have to get an attorney to move this thing forward?”
Christensen, the planning director, said the threat was not the overriding factor in his decision to recommend to commissioners that they approve the plat.
“It is taken into account, and is cumulatively considered with statutory laws, codes, judicial decisions, and other facts before a decision or recommendation is made,” Christensen’s e-mail said.
“While some applicants might imply or actually threaten litigation to seek desirable outcomes it is not a controlling fact in the review of land use or development actions,” the e-mail said.
Commissioner Ken Dahlstedt, who voted for plat approval, said it would have been wrong to pull the plug on the project based on a deadline the county had ignored.
“The feeling was if we’d been allowing them in good faith to be moving forward, ... then the county had an obligation to move forward and approve it,” Dahlstedt said.
He added that he approved the plat in order to avoid a lawsuit against the county.
“My goal is to try to keep us out of legal battles that cost the taxpayers a lot of money,” Dahlstedt said.
Ron Wesen, who had been county commissioner for six weeks when he voted to approve the plat, said he didn’t see a reason to reject it.
“If the deadline passed, it should have been stopped five years ago,” Wesen said.
Sharon Dillon, the only commissioner to oppose the development, said the lapsed deadline was part of the reason why she voted against it.
“If I have to be honest with myself, I believe it was in the back of my mind, yes,” said Dillon, whose east county district includes the project.
Another delay?
County officials have rewritten the rule pertaining to the deadline to say more clearly that developers must get their final plats approved within five years of preliminary approval.
In between the two approvals, the developers must build all the necessary infrastructure for the subdivision — roads, drainage, and in some cases, sewer and water lines.
This development is far removed from public water and sewer lines and will rely on 29 individual wells and septic systems.
The subdivision’s reliance on those wells may create another roadblock. A Department of Ecology official said Friday that Forest Park Estates may need to submit an application for a water right, which could take a year or more to process.
The county code assumes that each well by itself uses 350 gallons of water per day — much less than the amount that triggers the water-right requirement. But the state Supreme Court ruled in 2002 that the withdrawal by all wells in a subdivision must be added together to determine if a water right is needed.
According to the county’s rules, the 29 wells in Forest Park Estates would draw more than 10,000 gallons of water per day, twice the 5,000 gallons per day that triggers the water-right requirement.
For now, it’s unclear whether the 2002 court ruling applies to this subdivision because the conditions for water use were placed on the development in 1998, prior to the ruling.
Andy Dunn, water resources program manager for Ecology’s Northwest Region, said the state should have weighed in about the water right more than a decade ago, before the plat received preliminary approval. But the development only recently came to his attention, and Ecology has the authority to require a water right, even at this late stage, Dunn said.
“We need to have a discussion with the county and the project proponent, just to ask those questions and have that discussion now rather than later,” he said.
As a director of the Skagit System Cooperative in 1997, Larry Wasserman, now environmental policy manager for the Swinomish tribe, wrote in a comment letter about the subdivision that it needed a water right because it would exceed the 5,000-gallon limit for an exemption.
His opinion hasn’t changed in the intervening years.
“The tribe recognized this was a problem 10 years ago, and we’re disappointed the county issued this approval. It heightens our concerns with regard to the county being responsible for water management. We hope the Department of Ecology acts appropriately,” Wasserman said in an interview Thursday.
Ralph Schwartz can be reached at 360-416-2138 or .
