Key questions councilors need to ask an independent third party:
* Council needs a better explanation, “Why was this in the Consent Agenda?”
* Why did Comm. Dev. place a water availability warning in this subdivision’s docs?
* Was the same Hearings Examiner from the original 2005 case on this one, too?
* How has the city accounted for Tahoma Terra’s water rights since acquired?
* What other/how many residential units of water rights are currently being held?
* Has the city officially acquired new water rights since the last official count?
* What does Ecology say is Yelm’s current water allocation vs. the 2017 pumped amount?
* That number indicates how many residential units are left to permit.
* Thurston County Superior Court Judge Chris Wickham in the Knight case said that the City’s subdivisions approval were based on “an erroneous interpretation of the law” – how does council know that is not occurring yet again?
And a recommendation:
* The city council would be well advised to hire an independent third party expert to accurately explain Yelm’s current water rights situation to them before approving any large plats, and not take pressure/intimidation from the Executive branch of government, nor just accept the Staff report and Hearing Examiner’s approvals, without a full due diligence.
– Editor’s Note:
After my presentation to the Yelm City Council on March 27 about Yelm’s water rights referencing a Consent Agenda item that seemingly caught several councilors by surprise, the councilors voted to defer approving the Tahoma Terra Phase 2, Division 2 plat, after voting to remove that to become a separate agenda Action item. A discussion was further deferred to the April 3 Study Session in order for them to gather more information at that time.
Beginning in 2005 through and including 2011, Yelm city councils did not understand water law and merely voted on plat (developments) approvals based almost solely on the recommendations of the Community Development Dept., along with the Yelm Hearings Examiners’ approvals. They led them down the primrose lane of Yelm having the distinction of being the only city in the entire state where TWO Supreme Court cases determined water law, and both were against the City of Yelm to the tune of hundreds of thousands of dollars in legal fees. The same Community Development Director today handled those cases as well. Obviously, some on the council last week saw the merit of pausing and learning more, so the past is not repeated at their hand.
I was very specific to the council that the case affecting Yelm water was not the second case partially reversed in the Hirst decision (Foster vs. City of Yelm), rather the first on in JZ Knight vs. City of Yelm et al, which was affirmed for Knight by the Supreme Court of the State of Washington in December 2011. This case made clear that water availability for proposed plats must be shown at time of [plat] approval, not at the later residences’ building permit phase.
– I directed councilors that their own Staff Report for the Tahoma Terra subdivision says:
THE CITY CURRENTLY DOES NOT HOLD SUFFICIENT WATER RIGHTS TO SERVE ALL UNDEVELOPED LOTS WITHIN ITS WATER SERVICE AREA, BUT HAS DETERMINED THAT THE PROPOSED MEANS OF WATER SUPPLY FOR THIS FINAL SUBDIVISION IS ADEQUATE PURSUANT TO SECTION 58.17.150 RCW.
IF THE CITY IS UNABLE TO PROVIDE POTABLE WATER AT THE TIME A BUILDING PERMIT IS SUBMITTED FOR ANY STRUCTURE WITHIN THIS SUBDIVISION, THE PERMIT WILL NOT BE ISSUED UNTIL SUCH TIME AN EVIDENCE OF ADEQUATE WATER SUPPLY CAN BE MADE PURSUANT TO SECTION 19.27.097 RCW.
Why? This seems like the staff is exonerating the city if water is not available at the building permit phase and was a huge red flag for me – what does staff know that this would be included? And what did city officials promise the developers?
Community Director Beck told council that Tahoma Terra acquired water rights when the developers bought the land previously home to a dairy farm and the water rights were then transferred to the city’s water-bank, approved by the Department of Ecology and were reserved for Tahoma Terra’s future growth. Well folks, that was prior to the developers’ 2008 bankruptcy and subsequent foreclosure sale in April 2009. Since JZ Knight vs. City of Yelm was affirmed for Knight in December 2011, which finally verified Yelm’s actual water rights, why has this council never been informed about water rights set aside for this development and other developments? That would be paramount for council to know in subtracting that from Yelm’s current water rights, key in their developments decision making. Council needs to require Community Development to place future Action items for developmental approval on their Agenda’s Old Business section and not the Consent Agenda. Beck told the council after this development is approved with 62 homes, Yelm’s current 300 equal residential units of water remaining for future homes and businesses would diminsh to about 230. How are the “set-aside” water rights for these homes until the building permit phase accounted, so the city is not yet again in violation of over-pumping their water rights, as they were a decade ago, and as the Supreme Court affirmed in the Knight case. If they again do not monitor this, then the city could be open to legal liability when these home owners go to build and the city is out of water. This blogger researched/published an in-depth report on Yelm’s water rights last Autumn.
City Administrator Michael Grayum’s statements were like Groundhog Day from 2005-2006 all over again.
He said the city would be exposed to legal liability and could be sued for damages if council denied the subdivision after approval by the hearing examiner. He added that developers already spent hundreds of thousands of dollars installing infrastructure. This is the exact same threat Mayor Harding formerly used to get the council to vote Tahoma Terra’s original approval and their subsequent challenge by a Senior Water Rights holder, for which they were ill-advised to expend of over a quarter of a million dollars in legal fees for a lost case. The city made promises to the original developers that could not be kept when the city was sued. The council should not be pressured, threatened, or intimidated by the mayor and/or city administrator in their decision-making yet again.
What does this mean if this is approved and there is no water at building permit time?
This means that if the plat is approved and the city is unable to provide a building permit due to lack of water availability at the time of a building permit request, the permit will be denied, which could open the city to liability issues. The city council would be well advised to hire an independent third party expert to accurately explain to them Yelm’s current water rights situation before approving large plats. This city was told by Thurston County Superior Court Judge Chris Wickham in the Knight case that the City’s subdivisions approval were based on “an erroneous interpretation of the law” regarding water availability. The Supreme Court of the state of Washington affirmed that in a stunning 7-2 decision against Yelm leaders. Yelm’s council would be wise to avoid another legal debacle!
– Bottom line:
There are some councilors that “get it” and are willing to ask questions and learn, rather than following past councils of being complicit in whatever the Executive branch of Yelm government advised them to do. This council is no longer comprised almost exclusively of ’empty suits,” thanks to voters also “getting it” and voting them out!