County, landowner lock horns - Developer says wetlands ruling could affect all waterfront activities



Thurston County, WA - Locked in a pitched battle with Thurston County over plans to build a summer home on his Long Lake property, Jan Schmalenburg has gone to extraordinary lengths to rally support for his cause.

The Tacoma-based commercial property developer has mailed out 3,000 postcards to county waterfront owners and placed an advertisement in the newspaper, claiming all waterfront activities in the county could be affected if the county prevails in his case.

County environmental planner Cynthia Wilson disagreed, saying the county position in this protracted land-use dispute is consistent with similar cases.

At issue is whether a portion of the lake bottom at Schmalenburg's property should be included when measuring a shoreline wetlands there.

County planners looked at the site conditions, applied the county critical-areas ordinance and said "yes." They rejected Schmalenburg's plan in 2000 to build the house with an 82-foot setback, calling for a 200-foot wetland buffer instead.

They said the wetlands are outlined on the plat map that was recorded with the county before Schmalenburg bought the 1.8-acre lot for $150,000 three years ago.

In cases where certain rooted aquatic plants exist, a wetland can extend into a lake to a depth of 6 feet, Wilson said.

It's a definition the county has applied to other properties, not just Schmalenburg's.

Schmalenburg said the map is in error and the wetland, if you exclude the lake bottom, is less than half the 11,000-square-foot size that triggers the 200-foot setback on the Lakeridge Drive property, which is in Lacey's urban growth area.

The ruling set off a round of administrative appeals and lawsuits that have cost Schmalenburg $130,000 and three years of delay.

He sees his case as an example of government bureaucrats running amok, imposing arbitrary restrictions on his property that should alarm any waterfront property owner in the county.

"This case will set a precedent," he insisted.

"He hasn't been singled out," Wilson said.

The mass mailing has definitely roiled the waters. It reads:

"Attention waterfront property owners. On July 7, 2003 at 3:30 p.m., the Thurston County Commissioners will decide if the BOTTOM OF OUR LAKES ARE WETLANDS and subject to a 200-foot critical area setback! Their decision on this will impact ALL WATERFRONT ACTIVITIES in Thurston County."

It then lists the commissioners' office number and location of the meeting.

The meeting is an appeal to the county commissioners of a Feb. 11, 2003, ruling by the county hearings examiner that said the county's critical areas ordinance does not apply in the shoreline jurisdiction. That was a victory for Schmalenburg, appealed by county staff.

Two years ago, Schmalenburg lost a case before the county hearings examiner when he tried to get a reasonable-use exemption to build the house 82 feet from the shoreline.

That case is still on appeal in Thurston County Superior Court, where Schmalenburg also has filed a claim for damages against the county.

"We've been bombarded with calls," said Cami Olson, a county Department of Development Services employee who said he's fielded more than 100 of them since last week.

"It definitely got my attention," Black Lake resident Nikki Pettet said of the mailing she received. Alarmed, she called the commissioners office and was told the case involved one disgruntled landowner. She said she won't be attending the meeting Monday.

The commissioners' office also fired off a press release Thursday, reminding the public that Monday's appeal is not a public hearing where testimony will be taken. The commissioners are required to rule on the appeal based on the written record in the case.

"Again, this involves one property owner and one specific case," Assistant Chief Administrative Officer Dottie Tryk said.

Schmalenburg said he hopes the meeting room is packed with waterfront owners.

"I'm going to shed the light on this," he said.

John Dodge covers the environment and energy for The Olympian. He can be reached at 360-754-5444 or by e-mail at


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