lawson hills notice of appeal with exhibit, signed-4

8/14/2019 Lawson Hills Notice of Appeal With Exhibit, Signed-4

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BEFORE THE HEARING EXAMINER FORTHE CITY OF BLACK DIAMOND

IN RE APPEAL OF ADEQUACY OF

FINAL ENVIRONMENTAL IMPACTSTATEMENT FOR LAWSON HILLSMASTER PLANNED DEVELOPMENT PLN09-0016

No.

NOTICE OF APPEAL OF ADEQUACY OFFEIS BY THE CITY OF MAPLE VALLEYAND PRE-HEARING MOTION ONJURISDICTION TO HEAR SEPA APPEAL,AND ALTERNATIVELY TO INTERVENEIN MARCH 6, 2010 SEPA APPEAL

HEARING AND NOTICE OFUNAVAILABILITY OF COUNSEL

TO: The Community Development Director of the City of Black Diamond

AND TO: The Hearing Examiner of the City of Black Diamond

AND TO: Parties of Record in the Pending SEPA AppealsThe City of Maple Valley (hereinafter Maple Valley) hereby appeals the adequacy of

the December 11, 2009 Final Environmental Impact Statement (hereinafter FEIS) for the

Lawson Hills Master Planned Development (hereinafter the Proposal). Because Maple


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have jurisdiction over the FEIS adequacy appeal, then Maple Valley moves to intervene in the

administrative SEPA appeal hearing scheduled to begin on March 6, 2010.

I. Bases for AppealMaple Valley is located directly north of Black Diamond. Much of the traffic generated

by the Proposal will travel north on SR-169 into Maple Valley and is anticipated to have a

significant adverse impact on Maple Valleys transportation network. Maple Valley

commented on the draft EIS for the Proposal in a letter dated October 9, 2009 from Stephen R.

Clark, the Citys Public Works Director. That letter set forth five areas in which Maple Valley

found the draft EIS to be inadequate in its analysis of the Proposals traffic related impacts: 1)

methodology; 2) year 2025 forecast volumes; 3) trip distribution; 4) trip generation; and 5)

mitigation. For each of these areas, Maple Valley provided a suggested action as part of its

comment letter. The response to these comments in the final EIS is not adequate and the final

EIS still fails to adequately disclose, analyze, and suggest appropriate mitigation for the traffic

impacts of the Proposal. Maple Valleys comment letter and response is attached hereto as

Attachment A and incorporated herein by this reference as if set forth in full. Because the

disclosure, analysis, and proposed mitigation of traffic impacts upon Maple Valleys

transportation network are not adequate, Maple Valley is an aggrieved party.

II. Specific Relief SoughtMaple Valley requests that the Hearing Examiner or City Council, as applicable,

determine that the FEIS is inadequate for the reasons set forth in Maple Valleys October 29,


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III.Appeal FeeMaple Valley has submitted a $250.00 fee to accompany this appeal.

IV.Introduction to Pre-hearing Motions Related to Black Diamonds ConflictingSEPA Appeal Procedures

Maple Valley is aware of the fact that three other SEPA appeals (PLN09-0039, PLN09-

0042, PLN09-0043) were filed with the City of Black Diamond on or around December 28,

2009 and that a hearing on these appeals has been scheduled to begin on March 6, 2010. Maple

Valley is also aware of the City of Black Diamonds Notice of Public Hearing for these appeals

which states: Participation in the FEIS appeal hearings will be limited to the appellants,

applicant and city staff and their respective legal and expert witnesses. No other testimony will

be allowed. To the extent that the City of Black Diamond intends to limit SEPA appeals to

the three appeals that have already been filed, and to the extent that the City of Black Diamond

would claim that Maple Valleys administrative SEPA appeal is time barred, the City of Maple

Valley hereby objects and, for the reasons stated below, asserts its right to administratively

appeal the FEIS for the Proposal to the Black Diamond City Council.

The subject FEIS was issued by the City of Black Diamond on December 11, 2009.

The Citys notice of FEIS availability stated that a public hearing date for the MPD

applications has yet to be established. One of the fundamental principles of SEPA is that

SEPA appeals must not be orphaned from the underlying governmental action. RCW

43.21C.075(3) provides as follows:


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(b) Shallconsolidate an appeal of procedural issues and of substantivedeterminations made under this chapter (such as a decision to require particularmitigation measures or to deny a proposal) with a hearing or appeal on theunderlying governmental action by providing for a single simultaneoushearing before one hearing officer or body to consider the agency decision orrecommendation on a proposal and any environmental determinations madeunder this chapter

RCW 43.21C.075(3), emphasis added. Black Diamonds SEPA appeal provisions violate this

mandate because they appear to provide for one appeal to the Hearing Examiner and another

appeal to the City Council. BDMC Table 18.08.200-2, entitled SEPA Appeal Structure

provides that appeals of EIS adequacy related to a Type 41 decision are administratively

appealed to the City Council. This provision clearly creates a procedure for appealing EIS

adequacy to the City Council when the EIS relates to an MPD like the Proposal. If this were

the only procedure on the books, the Citys procedures would comply with the SEPA mandate

referenced above because it would only provide for one closed-record appeal the one to the

City Council and that appeal would be consolidated with a closed-record hearing on the

Hearing Examiners recommendation on the MPD application. It is this procedure that Maple

Valley planned on using to appeal the adequacy of the EIS. In other words, Maple Valley was

waiting for the recommendation of the Hearing Examiner on the MPD application, and planned

to file an appeal of FEIS adequacy when that recommendation was issued.

However, Black Diamond is apparently operating under an entirely different SEPA

appeal provision found in BDMC 19.04.250. At the time the FEIS issued, BDMC 19.04.250

read2 as follows:

19.04.250 Appeals.


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other SEPA appeal shall be allowed.

B. All appeals filed pursuant to this section must be filed in writing with theplanning director within fourteen calendar days of the date of the decisionappealed from.

C. On receipt of a timely written notice of appeal, the planning director shalladvise the hearing examiner of the appeal and request that a date for consideringthe appeal be established.

D. All relevant evidence shall be received during the hearing of the appeal andthe decision shall be made de novo. The procedural determination by the citysresponsible official shall carry substantial weight in any appeal proceeding.

E. For any appeal under this section, the city shall provide for a record that shallconsist of the following:

1. Findings and conclusions;

2. Testimony under oath; and

3. A taped or written transcript.

F. The city may require the applicant to provide an electronic transcript.

G. The city shall give official notice whenever it issues a permit or approval forwhich a statute or ordinance establishes a time limit for commencing judicialappeal. (Ord. 857 47, 2008; Ord. 299 25, 1984)

BDMC 19.04.250 (Ord. 857 47, 2008), emphasis added. The provision just cited was

amended by Ordinance 10-933, which was adopted on January 7, 2010, published on January

12, 2010, and became effective on January 17, 2010. The current version of BDMC 19.04.250

reads as follows:

A. Any aggrieved person may appeal a threshold determination, adequacy of afinal EIS and the conditions or denials of a requested action made by anonelected city official pursuant to the procedures set forth in this section. Noother SEPA appeal shall be allowed. No person may seek judicial review of aSEPA decision without first exhausting the administrative appeal process setf h h i


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C. A fee of $250.00 shall accompany each appeal.

D. On receipt of a timely written notice of appeal, the director shall advise thehearing examiner of the appeal and request that a date for considering the appealbe established.

Provided that, if there is a concurrent land use application requiring ahearing examiner public hearing, then the two hearings shall be combined.The hearing examiner shall make the final decision on a SEPA appeal.

E. All relevant evidence shall be received during the hearing of the appeal andthe decision shall be made de novo. The procedural determination by the city'sresponsible official shall carry substantial weight in any appeal proceeding. Theburden of proof shall be on the appellant, to demonstrate error by apreponderance of the evidence.

F. For any appeal under this section, the hearing examiner shall provide a recordthat shall consist of the following:

1. Findings and conclusions;

2. Testimony under oath; and

3. A taped or written transcript.

G. The city may require the applicant to provide an electronic transcript.

H. The city shall give official notice whenever it issues a permit or approval forwhich a statute or ordinance establishes a time limit for commencing judicialappeal. Appeal from the Hearing Examiner's decision on a SEPA appeal is tosuperior court. The judicial appeal must be filed within 21 days after the HearingExaminer renders a decision, unless the SEPA appeal is consolidated with theunderlying governmental action, such as a permit application. If there isconsolidation, judicial appeal of the Hearing Examiner's decision on the SEPAappeal must be filed within 21 days after the City's final decision on the

underlying government action.I. This chapter constitutes the exclusive administrative process to appeal aSEPA decision. Notwithstanding any other provision of the MunicipalCode, the provisions of this chapter shall apply. This provision shall beconstrued in conjunction with BDMC 18.98, RCW 36.70B, and WAC197-ll-680(3) (a) (v).


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closed record EIS adequacy appeal to the City Council only after a recommendation had been

issued by the Hearing Examiner on the MPD application.

Maple Valleys objection to the pending Black Diamond FEIS appeal process finds

support in West Main Associates v. City of Bellevue, 49 Wn. App. 513, 742 P.2d 1266 (1987).

In West Main, the applicant argued that a particular SEPA appeal was untimely because the

appellant had not filed a separate SEPA appeal within the 10-day period set forth in Bellevues

SEPA ordinance. The appellant had filed, however, an appeal within the 20-day period set

forth for appealing the underlying design review decision. The court ruled that Bellevues 10-

day appeal procedure was inapplicable under RCW 43.21C.075(3)(b).

This statute requires consolidation of local appeal procedures for the underlyinggovernment action and SEPA determinations made in such action. SinceBellevue's appeal period for SEPA determinations is shorter than its appealperiod for the underlying action, the SEPA appeal period is inapplicable in thiscase under RCW 43.21C.075(3)(b) and WAC 197-11-680(3)(a)(v). Therefore,the trial court correctly concluded that Three Tower's failure to file a separateSEPA appeal did not preclude it from raising SEPA issues in the councilproceedings.

West Main Associates v. City of Bellevue, 49 Wn. App. 513, 519, 742 P.2d 1266 (1987). As in

West Main, the appeal period in BDMC 19.04.250 should be deemed inapplicable to the extent

that it would prevent participants in the MPD open record hearing from also appealing the

adequacy of the EIS to the City Council in conjunction with a closed record hearing on the

recommendation.

Maple Valley is not the only party to find Black Diamonds SEPA appeal procedures

troubling. Indeed, Black Diamonds own Hearing Examiner addresses these problems with the

Bl k Di d M i i l C d i hi h i d i thi tt


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to the City Council. BDMC 19.04.250, as written when the master plan vestedand the EIS appeals were perfected, provides that appeals of EIS adequacy are tobe heard by the Hearing Examiner, but does not specify the rights of appeal tothe Examiner's decision (or even whether the Examiner's decision is final or arecommendation). 19.04.250 was amended on January 7, 2010 to expressly statethat the Examiner's decision is only appealable to Superior Court, whichconflicts with Table 18.08.200-2. Since the amendments to 19.04.250 areprocedural only, there is some room for disagreement as to whether theamendments would retroactively apply to the vested master plan application.

Hearing Examiners Pre-hearing order. Maple Valley anticipates that Black Diamond and/or

the applicant may try to rely on the language from the recently adopted version of BDMC

19.04.250.I as providing the exclusive method of appealing a SEPA decision. This reliance is

questionable, as the Hearing Examiner pointed out in his Pre-hearing order. The City of Maple

Valley, and perhaps many other members of the public, relied upon the existence of the

provisions in BDMC Table 18.08.200-2 in notfiling an appeal in December 2009. The new

version of BDMC 19.04.250 did not go into effect until over a month after the FEIS issued, and

the amended version still conflicts with 18.08.200-2. Furthermore, BDMC 19.04.250.I does

not specifically cross-reference, nor does it repeal BDMC Table 18.08.200-2. Maple Valley

asserts that BDMC 19.04.250 (both versions) are inapplicable, for the reasons stated herein,

and under West Main, and that the applicable code section is BDMC Table 18.08.200-2.

VI. Motion Challenging Hearing Examiners Subject Matter JurisdictionPursuant to BDMC Table 18.08.200-2, the Hearing Examiner does not have subject

matter jurisdiction to consider the SEPA appeal; rather, the City Council has jurisdiction to

hear the appeal. To allow one SEPA appeal hearing before the examiner and another SEPA

l h i b f th Cit C il ld i l t RCW 43 21C 075(3)( ) d RCW


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appeal and that the examiners jurisdiction is limited to conducting the open record hearing on

the MPD application and making a recommendation to the City Council.

A close reading of the Black Diamond Municipal Code should lead the Hearing

Examiner to the conclusion that he does not have jurisdiction over the SEPA appeal. As

discussed above, there are two code provisions in conflict: BDMC Table 18.08.200-2 and

BDMC 19.04.250 (presumably the version that existed in December of 2009). These two

provisions cannot be reconciled. The SEPA appeal either goes to the Hearing Examiner or it

goes to the City Council. BDMC 18.08.020 indicates that BDMC Table 18.08.200-2 should

control over BDMC 19.04.250. The provisions of this chapter supersede all other procedural

requirements that may exist in other sections of the City Code. Where conflicts occur

between provisions of this chapter and/or between this chapter and other City

regulations, the requirements of this chapter shall apply. BDMC 18.08.020 (emphasis

added). As between these two code sections, BDMC Table 18.08.200-2 should control because

it is more specific to this type of appeal than BDMC 19.04.250. Knowles v. Holly, 82 Wn.2d

694, 513 P.2d 18 (1973) (where there is a conflict between one statutory provision which

deals with a subject in a general way and another which deals with the same subject in a

specific manner, the latter will prevail).

BDMC Table 18.08.200-2 breaks down the various different kinds of possible SEPA

appeals in the context of the specific type of land use decision at issue. Indeed, this table calls

out the exact combination of factors present in this case: a Type 4 land use application and an

appeal of EIS adequacy. Under those precise circumstances, the table states that the SEPA


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to whether the appeal is of an EIS or a DNS and without consideration given as to the type of

land use application involved.

In fact, the language of BDMC 19.04.250 does not fit this particular context well at all.

It calls for the SEPA appeal to be filed within 14 days of the decision appealed from. To

apply BDMC 19.04.250 to this appeal would make no sense because doing so would purport to

allow a SEPA appeal to the Hearing Examiner (BDMC 19.04.250.C) after the City Council has

already made a final decision on the MPD application. Because BDMC Table 18.08.200-2

provides a special procedure to deal with exactly this situation, the Hearing Examiner should

not force a tortured construction of BDMC 19.04.250.C. The Hearing Examiner should find

that he does not have jurisdiction to conduct the SEPA appeal hearing and should limit the

proceedings before him to the open record hearing on the merits of the MPD application.

VII. Motion to Intervene in the Hearing Examiners SEPA Appeal HearingIn the alternative, and while reserving its rights to challenge the impropriety of the

Hearing Examiners jurisdiction to conduct a SEPA appeal proceeding, Maple Valley

respectfully requests permission to intervene in the scheduled appeal hearing. In making this

request, Maple Valley also reserves its right to appeal the adequacy of the EIS to the City

Council.

The Hearing Examiner may look to the civil rules of superior court for guidance in

interpreting its own procedures. Hearing Examiner Rules of Procedure, 1.03(b). CR 24 allows

a party to intervene upon motion when an applicants claim or defense and the main action


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FEIS for the Proposal. Therefore, under the guidance provided by CR 24, the Hearing

Examiner has the authority to allow Maple Valley to intervene.

To preserve all possible administrative remedies available to it, and because the Hearing

Examiner may not rule upon this motion until the March 6, 2010 hearing, Maple Valley intends

to file its pre-hearing brief, witness list, and curricula vitae of experts no later than February 15,

2010. This way, no party will be prejudiced by Maple Valleys intervention. Maple Valley is

concerned, however, about the burden that would be placed upon it under the current case

schedule. For example, Maple Valley would have much less time to prepare its pre-hearing

brief than it would have if the SEPA appeal were to be heard by the City Council after the

Examiners open record hearing. Because of these concerns, and because it believes that

BDMC 18.08.200-2 is controlling, Maple Valley reserves its right to object to the Examiners

jurisdiction even if it is allowed to intervene.

By filing this appeal, and motion, and asserting the conflicts, ambiguities and

inconsistencies in Black Diamonds SEPA appeal structure, Maple Valley is doing everything

it must do to preserve its administrative appeal rights and to attempt to exhaust administrative

remedies. If the Hearing Examiner or City Council refuses to allow Maple Valley to participate

in the EIS administrative appeal, we anticipate that Maple Valleys failure to exhaust would

be excused by a reviewing court. In Citizens for Clean Air v City of Spokane, 114 Wn.2d 20,

785 P.2d 447 (1990), the court analyzed when it will excuse an appellants failure to exhaust

administrative remedies. While the appellant in Citizens for Clean Air was not excused, the

facts here are distinguishable in that Maple Valley has done everything it can to be excused if


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persuaded that no clearly defined machinery exists for resolving specificcomplaints, we will excuse exhaustion.

* * *

Lack of clear procedure can make a remedy inadequate. But the litigants whowish to establish that the procedure is so poor as to be inadequate cannot rely onbad draftsmanship alone. It is not unfair to expect citizens groups to useavailable administrative procedures. Fairness to the agency requires that would-

be litigants try to clarify ambiguity before going to court.

Citizens for Clean Air v City of Spokane, 114 Wn.2d 20, 27-28, 785 P.2d 447 (1990). Here,

Maple Valley is attempting to appeal and trying to clarify ambiguities (asserting that they are,

in fact, outright conflicts) in the Black Diamond code. It is highly likely, given the conflicts in

the code and given the fact that this notice and motion is being submitted more than three

weeks in advance of the scheduled appeal hearing, that a reviewing court would excuse an

alleged failure to exhaust administrative remedies. Black Diamond should (through its

Hearing Examiner or its City Council) allow Maple Valley to participate in the SEPA appeal.

Doing so will avoid possible lengthy litigation on these procedural issues which could result in

a remand, further delaying Black Diamonds consideration of the Proposal. Black Diamond

should either acknowledge that the Hearing Examiner does not have jurisdiction over this

appeal and allow the appeal to be heard by the City Council, or, alternatively allow Maple

Valley to intervene in the appeal hearing before the Examiner.

VII. Other Options for Resolving the Jurisdictional IssueAnother alternative that Black Diamond may wish to consider would be to correct the

conflicts in its code, and, depending on how those conflicts are corrected, take an appropriate


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Page 249

A-008-001

The PSRC demand model and the City of Black Diamond's demand

model served as the basis for the distribution, which provided more

localized information and reflects interactions between land uses.

Although these demand models were the basis for the trip distribution,

the trip generation was based on ITE data since the project consists of

constructing more dwelling units than the demand model population

forecasts. Additionally, since The Villages and Lawson Hills

developments are two independent projects that need to be evaluated as

such, a demand model that included both of these projects would

overestimate the amount of land use interaction.

Black Diamond

Attachment A to Maple Valley's Notice of Appeal


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Page 250

A-008-002

Planned population and travel growth is included in the background

growth rate. Demand models are primarily beneficial for estimating travel

demand and distribution, not roadway or intersection operating

conditions.

A-008-003

The distribution was based on the PSRC demand model, as well as the

City of Black Diamond's demand model, which provides more localized

information. Due to model structure, projection information, assumptions,

model software, etc. it is typical for different demand models to estimate

different distributions.

Black Diamond


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Page 251

A-008-004

Interaction between local land uses was based on ITE data and

professional engineering judgement. The magnitude of interaction is

appropriate such that the impacts of trips external to the City of Black

Diamond would not be underestimated in adjacent jurisdictions.

A-008-005

The background growth rates and trip generation estimates have been

reviewed and no changes have been made. As a result, the identified

mitigation measures have also remained the same. Additionally, the City

of Maple Valley did not identify any intersections along SR 169 south of

SE 240th Street during the initial scoping process and, as a result, no

intersections in this area were analyzed.

Black Diamond


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Page 252Black Diamond

lawson hills notice of appeal with exhibit, signed-4

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