Wheeler Docks and Neahkahnie Mountain – Courtesy City of Wheeler
Ken Ulbricht of Botts Marsh LLC, is back in Wheeler with another project very similar to the one City Council declined to reinstate in May 2021.
On a remand hearing from ORCA’s appeal to the Land Use Board of Appeals, Wheeler City Council decided not to reapprove the Ulbricht project, which consisted of a hotel and a fish processing plant/restaurant on Nehalem Bay. LUBA had held, and Council agreed, that the project did not meet the requirements of the city’s mandatory Vision Plan.
In August 2021 Ulbricht filed another application, this time for a fish processing plant and shellfish sales outlet, on the same parcel of property at the north end of Wheeler. It is currently undergoing local hearings in Wheeler. Ulbricht designed the project to fit the requirements for an outright use in the water-dependent industrial and commercial zones, in an effort to evade the stricter standards for approval of a conditional use – and the Vision Plan. He wanted only to have to meet the minimal requirements of Design Review that an outright use must undergo.
However, Wheeler Comprehensive plan and ordinances say quite clearly that the decision on whether or not a proposed use is “water-dependent” in those zones must be made on a case-by-case basis. The criterion for the decision: whether or not the use, if not adjacent to water, would result in “public loss of quality in goods or services.” Both zones require the proposed uses to be “marine-oriented.”
Since the Ulbricht proposal openly states that the fish for processing will be trucked in, the water used will be from the Wheeler water system, and the shellfish sales will be of items also trucked in, there is clearly no “marine-oriented” nexus. There is no proposed use of Nehalem Bay water. And as there is no commercial fishing allowed in the Bay, the seafood to be processed provides no local marine-oriented connection either.
In addition to this fundamental problem, the processing plant, like the similar one from the 2019 application, fails completely to meet the standards for small town character and community livability, which are at the heart of the city’s Vision Plan. Placed in the Comprehensive Plan as a mandatory guidance document, it requires that development plans meet the standards of the community’s vision for its future.
In this project, like the 2019 application, Ulbricht and Botts Marsh LLC have shown a remarkable unwillingness to negotiate, collaborate or discuss options with the city. Ulbricht has simply filed applications and attempted to get them approved, despite their glaring failure to meet city standards – or professional standards. Neither project had site plans worthy of the term, but merely vague schematic drawings that provided no information on critical issues such as water, wastewater, stormwater, or treatment processing effluent.
Ulbricht has also been highly litigious. He filed a LUBA appeal of City Council’s decision not to reinstate his earlier project after the LUBA remand.
He also sent the city a letter on July 1, 2021 concerning his new project, which stated in part: “The Applicant expects design review to follow the process and review criteria in Wheeler Zoning Ordinance, and for the application to be approved. Any denial or delay of the fish processing application will result promptly in litigation, which the Applicant will initiate in Tillamook County Circuit Court, to include claims against the City of Wheeler for 1. Inverse condemnation and 2. A de facto, illegal moratorium on development. This list of claims is not exhaustive. The Applicant will seek damages and reimbursement of attorney fees to the full extent of the law.”
Ulbricht continued by stating he would forego the proposed fish plant if the city approves instead an application for houses (which would include short term rentals) and a 10-unit motel. He demanded the city do as follows: “the City would commit to shorten review times and otherwise expedite application for the ‘mixed use development” as it would require a rezone. Then, “If the City failed to issue final approval on or before November 30, or if anyone appeals the City’s final decision (for example to Land Use Board of Appeals), the Applicant will immediately proceed with the fish processing plant and commercial building for fish/shellfish sales.”
This letter can only be construed as threatening; it is highly unusual, to say the least, for an applicant to write that he “expects…the application to be approved,” and openly threaten litigation if it is not. ORCA opposes this fish plant application as contrary to the Wheeler Vision Plan and bayfront protection requirements. We are participating in the local hearings.