EatonvilleNews

Town Spanked Again, This Time by Hearings Board
Ordinance 2006-6 Deemed Invalid: - "Defects, Discrepancies, Ambiguities, Flaws and Inconsistencies" by Town Found - Safety of Pilots and General Public Disregarded...

by Dixie A. Walter
December 22, 2006 December 22, 2006

    For the second time in about five weeks, the town council, planners and attorneys have been proven incorrect by two state bodies after hearing two separate issues. The first, in mid-November, was the *State Court of Appeals overturning the dismissal of a Superior Court trial regarding the alleged illegal sale of Van Eaton Park. This suit was brought by Steve Van Cleve, citizen, commercial pilot, former chair of planning commission and former council member.
      The latest is a decision, regarding the airport and Ordinance 2006-6, by the Central Puget Sound Growth Management Hearings Board stating in their **synopsis that the town's "...adoption of its general aviation development regulations was ***clearly erroneous. The adopted regulations were internally inconsistent, did not comply with its own Plan policies and did not comply with RCW 36.704A.1310(1), RCW 36.70A.510 and RCW 36.70.547.
      "Further, the Town's disregard for aviation safety, as expressed in Ordinance 2006-6, caused the Board to enter a determination of invalidity.
       The hearings board also points out that the petitioners, WSDOT (Washington State Department of Transportation) - Aviation Division and the FAA commented on the Town's proposed development regulations, noting serious incompatibility and height encroachment concerns that endangered aviation and posed safety concerns to the general public...Nonetheless, the Town completely ignored the concerns voiced by Petitioners and the agencies charged with aviation safety and adopted the proposed regulations without amendment or revisions."

A Little Background

Ordinance 2006-6, a lengthy document, was approved by a vote of four to one by the Eatonville Town Council February 27, 2006, Councilmember Bobbi Allison voted "No" on the ordinance.

Excerpt from Council February 27 Agenda...

A. Ordinance 2006-6 amending the Eatonville Municipal Code by establishing development regulations at and adjacent to the Eatonville Airport - Swanson Field - creating new sections 18.04.185 and .187 of the municipal code, and repealing existing section 18.04.185 and Ordinance 94-06 §2, 1994 (Second reading) (This was a public hearing although it was not stated as such on the preliminary or final agendas. After lengthy discussion the council voted to pass this ordinance with Councilmember Allison voting "No.")

The Petitioners

      Stephen Pruitt, a planning commissioner at the time, and Steven Van Cleve, acting pro se [without an attorney] petitioned the hearings board March 23, 2006 for a review "challenging the Town of Eatonville's adoption of Ordinance 2006-6 amending the Town's development regulations related to the Town of Eatonville Airport - Swanson Field. The Town had been working on such regulations for an extended period of time.
      "In April 2006, the Board held a prehearing conference...in June 2006, the parties requested and were granted a 90-day settlement extension to provide time for them to resolve their dispute. The Board received one status report, indicating although two meetings had been held, the disagreement had not been resolved.
      "On November 6, 2006, the Board held a HOM (Hearing of the Merits meeting)..." Pruitt, Van Cleve, Mayor Tom Smallwood and Town Planning Consultant Mart Kask (author of the ordinance) attend the HOM, as did Town Attorney Bob Mack and Attorney Edward G. Hudson who also represented the Town.
       The "burden of proof" was on the petitioners to "demonstrate that the actions taken by the Town of Eatonville are not in compliance with the goals and requirements of the GMA (Growth Management Act) RCW 36.70A.320(2)."

Petitioners' Argument Straightforward

Under the subtitle "Position of the Petitioners" the decision says, "Petitioners' argument is quite straightforward. Ordinance 2006-6 does not discourage incompatible uses adjacent to Swanson Field since residential, commercial and industrial uses can all be located in the Aerospace District/Airport Overlay District and height restrictions do not protect the airport from height hazards because it allows structures to penetrate federally-established height limitations [Federal Aviation Regulations Part 77 (FAR 77)] adjacent to general aviation airports.
"By permitting these incompatible uses and allowing structural penetration of the height limitations, the Town has not reduced hazards associated with the airport and is endangering the lives and property of the public and airport users...Petitioners contend their position is supported by evidence submitted by the Washington State Department of Transportation (WSDOT) Aviation Division and a corroborating e-mail form the Federal Aviation Administration (FAA)."

Town Says Ordinance 2006-6 not "Final";
Hearings Board Doesn't Buy it

      The town says, "Ordinance 2006-6 by its own terms is, and was intended to be, not the final regulation of this matter." However, the hearings board disagrees. "On its face, Ordinance 2006-6 is not an interim development regulation; it is a final regulation to [establish] development regulations at and adjacent to the Eatonville Airport - Swanson Field. As such, these development regulations must be consistent with, and implement, the Town's Comprehensive Plan and comply with the GMA."
      The decision goes on to say that several RCWs "provide explicit statutory direction for local governments to give substantial weight to WSDOT Aviation Division's comments and concerns related to matters affecting safety at general aviation airports...Likewise, the FAA's expertise and decades of experience, as reflected in FAR Part 77, cannot be summarily ignored. Both these agencies have statutory authority to inject their substantial experience and expertise into local governmental matters involving airport safety.
      "The primary question for the Board is whether Eatonville's development regulations, pertaining to Swanson Field, are consistent with, and implement, the Town's Plan [comp plan] and are consistent with the GMA and related statutory requirements - RCW 36.70.547.
      "...do the Town's identified incompatible uses and height restrictions implement...Town plan policies, and do they comply with the relevant statutory provisions? The Board's answer is NO."

WSDOT and FAA Note Town Flaws Town Flaws

      Quoting the FAA the hearings board includes the following: "We would like to take this opportunity to let you know that the Federal Aviation Administration fully supports...the Washington State Department of Transportation. We are seriously concerned that the City of Eatonville is not taking appropriate steps to address incompatible land use proposals and are ignoring federal regulations.
      "The height hazard standards within the proposed regulations, in particular, are flawed and, if implemented, would disrupt airport operations, compromise public health and endanger pilots and the general public...Federal Aviation Regulation Part 77 is not something that can be arbitrarily modified to match a particular development proposal. FAR Part 77 has been in existence for over 50 years...and it should be recognized accordingly. The Federal Regulations and State Planning guidelines have been written to take into consideration different sizes and types of airports. We therefore recommend that your development regulations be modified to adopt FAR Part 77 in its entirety."
       WSDOT and FAA provided "specific comments noting flaws, which related to height limitations and incompatible land uses and offered recommendations to correct the noted deficiencies...These comment letters were available to the Town Council prior to taking action on the development regulations; yet no changes were made to address the serious safety concerns raised by the state and federal agencies charged with aviation safety.
       "Nor did the Town pay any heed to its own Plan Policies. Without any technical aviation safety support in its record, the Town simply adopted the proposed regulations without further revision or amendment...It appears to the Board that the Town completely ignored the concerns of general aviation pilots (Petitioners), the FAA and WSDOT Aviation Division, the very federal and state agencies charged with aviation safety at general aviation airports, and the groups the Town was required to engage in 'formal consultations' with per RCW 36.70.547."

Town's Variance Provisions "Contradictory, Ambiguous and Unclear"

     Another point brought out by the hearings board is the fact that the "Town seems extremely concerned with protecting the rights and property values of the few residents that own structures that would not comply with the height restrictions or whose use (primarily residential) are deemed incompatible by the FAA and WSDOT Aviation Division criteria...However, in its zeal to protect these few property owners, the Town overlooks the fact that Ordinance 2006-6 not only permits existing uses to continue, but also allows new construction and development within the concern to FAA and WSDOT.
     "The Town's approach does more than permit existing "nonconforming" uses to continue, it perpetuates incompatibility and exacerbates the very serious safety concerns raised by WSDOT and FAA. Instead of discouraging incompatible uses at and adjacent to Swanson Field, the Town's adoption of Ordinance 2006-6 is actually encouraging the development of future incompatible uses. This is directly contrary to the Town's own Plan Policies and the direction of RCW 36.70.547."
     According to the hearings board the town is also confused by its variance procedures regarding FAR 77. "Ordinance 2006-6 also provides that no penetration of the Town's height restrictions can occur without a variance approved by the Board of Adjustment (aka planning commission); and that once such variance is received by the applicant, then the FAA must be notified...This provision is directly contradictory to the variance provisions above, indicating that the FAA review occurs prior to considering a variance. These two 'variance provisions are contradictory, ambiguous and unclear."

Ordinance 2006-6 Entirely Invalid

In light of these defects, discrepancies, ambiguities, flaws and inconsistencies discussed...and the potential endangerment posed to not only those using the Eatonville general aviation airport, but to the safety of the general public as well, the Board concludes that the continued validity of Ordinance 2006-6 interferes with Goal 3 - RCW 36.70A.020(3)...Therefore the Board enters a determination of invalidity with respect to Ordinance 2006-6 in its entirety."
The Board sends Ordinance 2006-6 back to the town "with direction to take the necessary legislative actions to adopt development regulations for Swanson Field that are consistent with, and implement, its compliant Plan Policies, per RCW 36.70A.130(1), and comply with the requirements of RCW 36.70A.510 and RCW 36.70.547, as set forth and interpreted by this Order."

Schedule for Town to Comply

March 16, 2007 is the deadline for the town to take "appropriate legislative action to comply with the GMA...The town must file an original and four copies of the legislative enactment, along with a statement of how the enactment complies with the GMA and this Order...The Town shall simultaneously serve a copy of the legislative enactment(s) and compliance statement, with attachments, on Petitioners...By no later than March 30, 2007 the Petitioners may file with the Board an original and four copies of Response to the Town...Petitioners shall simultaneously serve a copy of their Response to the Town...The Board hereby schedules the Compliance Hearing in this matter for 10 a.m., April 12, 2007 at the Board's offices."
The town has ten days from the date of mailing of Order to file a motion for reconsideration. The document is dated December 18, 2006. The hearings board members who signed the order are David O. Earling, Edward G. McGuire, AICP and Margaret A. Pageler.

       Legend:

         * No emphasis added by ENN - all emphasis by Board
     * * Synopsis
    *** Court of Appeals Findings
            For more information please see Feds Seriously Concerned - Scroll down for WSDOT aviation review
            letter



	*Town* Spanked Again, This Time by Hearings Board Ordinance 2006-6 Deemed Invalid: - "Defects, Discrepancies, Ambiguities, Flaws and Inconsistencies" by Town Found - Safety of Pilots and General Public Disregarded... by Dixie A. Walter December 22, 2006 December 22, 2006 For the second time in about five weeks, the town council, planners and attorneys have been proven incorrect by two state bodies after hearing two separate issues. The first, in mid-November, was the State Court of Appeals overturning the dismissal of a Superior Court trial regarding the alleged illegal sale of Van Eaton Park. This suit was brought by Steve Van Cleve, citizen, commercial pilot, former chair of planning commission and former council member. The latest is a decision, regarding the airport and Ordinance 2006-6, by the Central Puget Sound Growth* Management Hearings Board stating in their synopsis that the town's "...adoption of its general aviation development regulations was clearly erroneous. The adopted regulations were internally inconsistent, did not comply* with its own Plan policies and did not comply with RCW 36.704A.1310(1), RCW 36.70A.510 and RCW 36.70.547. "Further, the Town's disregard for aviation safety, as expressed in Ordinance 2006-6, caused the Board to enter a determination of invalidity. The hearings board also points out that the petitioners, WSDOT (Washington State Department of Transportation) - Aviation Division and the FAA commented on the Town's proposed development regulations, noting serious incompatibility and height encroachment concerns that endangered aviation and posed safety concerns to the general public...Nonetheless, the Town completely ignored the concerns voiced by Petitioners and the agencies charged with aviation safety and adopted the proposed regulations without amendment or revisions." *A Little Background* Ordinance 2006-6, a lengthy document, was approved by a vote of four to one by the Eatonville Town Council February 27, 2006, Councilmember Bobbi Allison voted "No" on the ordinance. Excerpt from Council February 27 Agenda... A. Ordinance 2006-6 amending the Eatonville Municipal Code by establishing development regulations at and adjacent to the Eatonville Airport - Swanson Field - creating new sections 18.04.185 and .187 of the municipal code, and repealing existing section 18.04.185 and Ordinance 94-06 §2, 1994 (Second reading) (This was a public hearing although it was not stated as such on the preliminary or final agendas. After lengthy discussion the council voted to pass this ordinance with Councilmember Allison voting "No.") The Petitioners *Stephen Pruitt, a planning commissioner at the time, and Steven Van Cleve, acting pro se* [without an attorney] petitioned the hearings board March 23, 2006 for a review "challenging the Town of Eatonville's adoption of Ordinance 2006-6 amending the Town's development regulations related to the Town of Eatonville Airport - Swanson Field. The Town had been working on such regulations for an extended period of time. "In April 2006, the Board held a prehearing conference...in June 2006, the parties requested and were granted a 90-day settlement extension to provide time for them to resolve their dispute. The Board received one status report, indicating although two meetings had been held, the disagreement had not been resolved. "On November 6, 2006, the Board held a HOM (Hearing of the Merits meeting)..." Pruitt, Van Cleve, Mayor Tom Smallwood and Town Planning Consultant Mart Kask (author of the ordinance) attend the HOM, as did Town Attorney Bob Mack and Attorney Edward G. Hudson who also represented the Town. The "burden of proof" was on the petitioners to "demonstrate that the actions taken by the Town of Eatonville are not in compliance with the goals and requirements of the GMA (Growth Management Act) RCW 36.70A.320(2)." Petitioners' Argument Straightforward Under the subtitle "Position of the Petitioners" the decision says, "Petitioners' argument is quite straightforward. Ordinance 2006-6 does not discourage incompatible uses adjacent to Swanson Field since residential, commercial and industrial uses can all be located in the Aerospace District/Airport Overlay District and height restrictions do not protect the airport from height hazards because it allows structures to penetrate federally-established height limitations [Federal Aviation Regulations Part 77 (FAR 77)] adjacent to general aviation airports. "By permitting these incompatible uses and allowing structural penetration of the height limitations, the Town has not reduced hazards associated with the airport and is endangering the lives and property of the public and airport users...Petitioners contend their position is supported by evidence submitted by the Washington State Department of Transportation (WSDOT) Aviation Division and a corroborating e-mail form the Federal Aviation Administration (FAA)." Town Says Ordinance 2006-6 not "Final"; Hearings Board Doesn't Buy it The town says, "Ordinance 2006-6 by its own terms is, and was intended to be, not the final regulation of** this matter." However, the hearings board disagrees. "On its face, Ordinance 2006-6 is not an interim development regulation; it is a final regulation to [establish] development regulations at and adjacent to the Eatonville Airport - Swanson Field. As such, these development regulations must be consistent with, and implement, the Town's Comprehensive Plan and comply with the GMA." The decision goes on to say that several RCWs "provide explicit statutory direction for local governments to give substantial weight to WSDOT Aviation Division's comments and concerns related to matters affecting safety at general aviation airports...Likewise, the FAA's expertise and decades of experience, as reflected in FAR Part 77, cannot be summarily ignored. Both these agencies have statutory authority to inject their substantial experience and expertise into local governmental matters involving airport safety. "The primary question for the Board is whether Eatonville's development regulations, pertaining to Swanson Field, are consistent with, and implement, the Town's Plan [comp plan] and are consistent with the GMA and related statutory requirements - RCW 36.70.547. "...do the Town's identified incompatible uses and height restrictions implement...Town plan policies, and do they comply with the relevant statutory provisions? The Board's answer is NO." **WSDOT and FAA Note Town Flaws Town Flaws Quoting the FAA the hearings board includes the following: "We would like to take this opportunity to let** you know that the Federal Aviation Administration fully supports...the Washington State Department of Transportation. We are seriously concerned that the City of Eatonville is not taking appropriate steps to address incompatible land use proposals and are ignoring federal regulations. "The height hazard standards within the proposed regulations, in particular, are flawed and, if implemented, would disrupt airport operations, compromise public health and endanger pilots and the general public...Federal Aviation Regulation Part 77 is not something that can be arbitrarily modified to match a particular development proposal. FAR Part 77 has been in existence for over 50 years...and it should be recognized accordingly. The Federal Regulations and State Planning guidelines have been written to take into consideration different sizes and types of airports. We therefore recommend that your development regulations be modified to adopt FAR Part 77 in its entirety." WSDOT and FAA provided "specific comments noting flaws, which related to height limitations and incompatible land uses and offered recommendations to correct the noted deficiencies...These comment letters were available to the Town Council prior to taking action on the development regulations; yet no changes were made to address the serious safety concerns raised by the state and federal agencies charged with aviation safety. "Nor did the Town pay any heed to its own Plan Policies. Without any technical aviation safety support in its record, the Town simply adopted the proposed regulations without further revision or amendment...It appears to the Board that the Town completely ignored the concerns of general aviation pilots (Petitioners), the FAA and WSDOT Aviation Division, the very federal and state agencies charged with aviation safety at general aviation airports, and the groups the Town was required to engage in 'formal consultations' with per RCW 36.70.547." *Town's Variance Provisions "Contradictory, Ambiguous and Unclear"* Another point brought out by the hearings board is the fact that the "Town seems extremely concerned with protecting the rights and property values of the few residents that own structures that would not comply with the height restrictions or whose use (primarily residential) are deemed incompatible by the FAA and WSDOT Aviation Division criteria...However, in its zeal to protect these few property owners, the Town overlooks the fact that Ordinance 2006-6 not only permits existing uses to continue, but also allows new construction and development within the concern to FAA and WSDOT. "The Town's approach does more than permit existing "nonconforming" uses to continue, it perpetuates incompatibility and exacerbates the very serious safety concerns raised by WSDOT and FAA. Instead of discouraging incompatible uses at and adjacent to Swanson Field, the Town's adoption of Ordinance 2006-6 is actually encouraging the development of future incompatible uses. This is directly contrary to the Town's own Plan Policies and the direction of RCW 36.70.547." According to the hearings board the town is also confused by its variance procedures regarding FAR 77. "Ordinance 2006-6 also provides that no penetration of the Town's height restrictions can occur without a variance approved by the Board of Adjustment (aka planning commission); and that once such variance is received by the applicant, then the FAA must be notified...This provision is directly contradictory to the variance provisions above, indicating that the FAA review occurs prior to considering a variance. These two 'variance provisions are contradictory, ambiguous and unclear." *Ordinance 2006-6 Entirely Invalid* In light of these defects, discrepancies, ambiguities, flaws and inconsistencies discussed...and the potential endangerment posed to not only those using the Eatonville general aviation airport, but to the safety of the general public as well, the Board concludes that the continued validity of Ordinance 2006-6 interferes with Goal 3 - RCW 36.70A.020(3)...Therefore the Board enters a determination of invalidity with respect to Ordinance 2006-6 in its entirety." The Board sends Ordinance 2006-6 back to the town "with direction to take the necessary legislative actions to adopt development regulations for Swanson Field that are consistent with, and implement, its compliant Plan Policies, per RCW 36.70A.130(1), and comply with the requirements of RCW 36.70A.510 and RCW 36.70.547, as set forth and interpreted by this Order." *Schedule* *for Town to Comply* March 16, 2007 is the deadline for the town to take "appropriate legislative action to comply with the GMA...The town must file an original and four copies of the legislative enactment, along with a statement of how the enactment complies with the GMA and this Order...The Town shall simultaneously serve a copy of the legislative enactment(s) and compliance statement, with attachments, on Petitioners...By no later than March 30, 2007 the Petitioners may file with the Board an original and four copies of Response to the Town...Petitioners shall simultaneously serve a copy of their Response to the Town...The Board hereby schedules the Compliance Hearing in this matter for 10 a.m., April 12, 2007 at the Board's offices." The town has ten days from the date of mailing of Order to file a motion for reconsideration. The document is dated December 18, 2006. The hearings board members who signed the order are David O. Earling, Edward G. McGuire, AICP and Margaret A. Pageler. Legend: * No emphasis added by ENN - all emphasis by Board * * Synopsis ***** Court of Appeals Findings For more information please see Feds Seriously Concerned** - Scroll down for WSDOT aviation review letter Back to Top Back to Front Page





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