Site’s wetland status has checkered past

When it comes to wetlands, the property at 44th Avenue and Regal Street has a confusing past.

Classification of the property, the site of a proposed Wal-Mart Supercenter, has vacillated back and forth over the years. While the land was initially deemed to have a wetland, a 1996 study revealed that the wetland had dried up. In 2001, in preparation for the widening of Regal Street, a consultant hired by the city commissioned another study. The biologist found that the wetland had re-hydrated and returned.

An attorney for the owners of the property at that time, Dr. Ralph Berg and Mary Berg, challenged the new wetland designation because it could have prompted a change to the allowed land use there. A Feb. 8, 2002, letter sent by attorney Patrick Risken to Jim MacInnis, a senior city engineer who headed the street project, threatened a lawsuit if approval to develop the property was altered to include the wetland without notice or hearing.

In the letter, Risken insisted that no wetland existed on the property and blamed development and runoff for the water there. He further said the city lacked the Bergs’ permission to perform the 2001 study.

“In our discussion in December, you and I agreed that the existence of a wetland did not assist the city in its plans for the area,” Risken said in correspondence. “Please discuss this matter with your legal department. If the city insists on the changes made to the approved site plan, and its wetland stance, we (will) need to have this matter resolved through the proper administrative and judicial channels.”

On Feb. 14, 2002, MacInnis specifically noted the wetland’s existence in paperwork sent to the Washington state Department of Transportation.

“A type 4 wetlands (0.23 acre) was identified immediately east of the existing Regal Street right-of-way between 42nd Avenue and 44th Avenue. The road widening will encroach into this 10,167-square-foot wetland approximately 3,534 square-feet (0.08 acre). Although federal and state permits for encroachment into this wetland are not needed, a Special Permit must be obtained by the City of Spokane prior to construction,” MacInnis wrote.

In September 2004, Harlan and Maxine Douglass paid just under $1 million for the Berg property.

Last summer, the city, under a strict timeline for obtaining millions of dollars in state road-improvement funds and under threat of a lawsuit, proceeded to do road work that buried a portion of the wetland without obtaining a permit. About the same time, the other portion of the wetland, on land now owned by Douglass, also disappeared.

After the code enforcement complaint was filed, Steve Haynes, a city planner, denied that the city project had anything to do with the fill, saying it happened years ago. That contention is backed up by an April 2002 memo from the city’s Wastewater Management Department, saying the wetland had been filled and the land leveled when the Bergs owned the property, blocking a stream and backing up a culvert under Regal Street.

But Christopher Merker, a state Department of Ecology wetlands biologist who has since retired, examined the property at the request of neighbors and determined that the wetland had also been buried within the past year.

A few weeks later, the city acknowledged that it didn’t apply for a wetlands permit and that a “wetland had been disturbed.”

In a March memo sent to CLC Associates, Haynes listed issues that Wal-Mart’s developer needed to address, including wetland analysis.