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HomeMy WebLinkAboutSEPA, BLA, MEP Hearings Exhibit List - SEP Letters / Memos - 6/18/2008 1 BEFORE THE HEARING EXAMINER FOR MASON COUNTY 2 3 RE: Glen Jurges 4 FINDINGS OF FACT, CONCLUSIONS HEX2008-00035 OF LAW AND FINAL DECISION 5 Administrative Appeal 6 7 INTRODUCTION 8 The appellant appeals decisions by Mason County staff approving a boundary line 9 adjustment ("BLA"), a determination of nonsignificance issued under the State Environmental Policy Act ("SEPA"), and the issuance of an environmental permit. 10 The BLA and SEPA appeals are dismissed as untimely. The decision of Mason County to issue the environmental permit is sustained. 11 12 ORAL TESTIMONY 13 The summarized testimony is limited to procedural matters, since those were the only issues relevant to resolution of this appeal. 14 Richard Settle, attorney for the appellant, testified that he believed the Examiner 15 should hear the BLA appeal since his client received no notice of the appeal and also because SEPA does not allow the fragmentation of environmental review. Mr. Settle 16 pointed out that the absence of notice violated Mr. Pastore's due process rights and 1.7 deprived him of a meaningful opportunity to appeal. 18 The appellant, Robert Pastore, testified that the posting of the property for SEPA review was hidden from view and he was not aware of the sign until the appeal period 19 had expired or almost expired. Rebecca Hersha testified that in response to Mr. Pastore's concerns she reposted the property at a more visible site and recommenced 20 the appeal period from the beginning. 21 Richard Shattuck, attorney for the applicant, testified that the Examiner has no 22 jurisdiction to consider due process issues and that the Mason County Code and state law do not require any notice for BLA decisions. 23 24 25 Glen Jurges P. 1 (PA0708296.DOC;1/13009.900000/) I EXHIBITS 2 Exhibit List 3 1. Notice of Hearing for Administrative Appeal 2. Appeal Submitted by Robert Pastore(17 pages) 4 3. Aerial Photo 5 4. Site Plan 5. SEPA Checklist(15 pages) 6 6. SEPA Mitigated Determination of Non-Significance(Yd page conditions added after receiving comments) 7 7. SEPA Comments Received(12 pages) 8 8. Notice to Retain DNS (2 pages) 9. Mason Environmental Permit Application(2 pages) 9 10. MEP Map with Wetland Boundaries and Buffers 11. Habitat Management Plan, with Eagle Management Plan(37 pages) 10 12. Mason Environmental Permit with Conditions(2 pages) 13. Grading and TESC Plan with Notes and Details (2 pages) 11 14. Drainage Plan,Notes, and Details (3 pages) 12 15. Road Details (4 pages) 16. Maps from Boundary Line Adjustment#07-82 (2 pages) 13 17. Email from County Prosecutor 18. Letter from Robert Pastore to Ryan Crater, Mason County Community 14 Development Planner 19. Written Statement of Robert Pastore 15 20. Copy of Plat Map 16 21. Second Copy of Plat Map 22. Vacation Order#326 17 23. Survey 24. Army Corps of Engineers Letter and Map, 1998 18 25. Deed of Trust 26. Cascade Land Conservatory Document 19 27. Amplification of Exhibit 3 20 28. Jurges's Site Plan 29. Swift v. Island County, 87 Wn.2d 348 (1976) 21 30. Applicant's Pre-Hearing Brief 31. West Sound Engineering Map 22 32. Army Corps of Engineers Letter,April 27, 1999 33. Letter From Harley Somers 23 34. Email from Amanda Reynolds 24 35. Letter from Mason County Department of Public Works 36. Case Activity Log for HEX2008-00035 25 37. Appellants Post Hearing Brief 38. Applicant's Motion to Strike 39. Staff Report Glen Jurges p. 2 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) 40. CV of Anthony Bredberg 1 41. CV of James DeShazo 2 42. CV of Alan Biggs 43. Applicant's Post-Hearing Brief 3 44. Appellant's Response to Applicant's Motion to Strike 45. Email from Rebecca Hersha to Phil Olbrechts dated August 26, 2008 regarding 4 filing dates of Pastore appeal.. 46. Email from Rebecca Hersha to Phil Olbrechts dated August 27, 2008 regarding 5 drain field setbacks. 6 47 Two Emails dated 10/7/08 from Phil Olbrechts to all parties providing Mr. Pastore an opportunity to respond to staff information and 10/07/08 response 7 from Mr. Pastore.. 48 Appellant's Addendum to Post-Hearing Brief and Submission 8 49 Applicant's Second Motion to Strike 9 FINDINGS OF FACT 10 Procedural: 11 1. Appellant. The appellant is Glen Jurges. His appeal is dated July 29, 12 2008. 13 2. Hearing. The hearing on this matter was held on August 26, 2008. The hearing was left open for Mason County staff to provide information on the basis for 14 the setback requirements for septic systems from surface waters and the filing of the appellant's appeal. Mason County was to provide this information by September 2, 15 2008. A written closing and response to the information provided by staff was due 16 from the applicant by September 9, 2008. A written closing and response to the information provided by staff was due from the appellant by September 16, 2008. On 17 October 7, 2008 the Examiner gave Mr. Pastore until October 10, 2008 to respond to the information provided by staff since he was not given that information until 18 October 7, 2008. The Examiner also went on a site visit with Mr. Pastore and Mr. 19 Jurges on September 8, 2008. All parties waived objection to the site visit and the fact it was not to be recorded. 20 Substantive: 21 3. Project Description. The proposed project is a residential development 22 with twenty home sites located in Rural Residential 5 zoning. The subdivision is 23 located on fifteen acres and was originally platted in 1890 for 146 lots. The project involved a request for a boundary line adjustment (discussed in more detail below) to 24 25 Glen Jurges p. 3 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) reduce the number of lots to 23 lots'. State Environmental Policy Act, Chapter I 43.21C RCW ("SEPA"), review was conducted by the County after approving the 2 boundary line adjustment upon the application for a grading permit. The applicant acquired approval of a Mason County environmental permit on July 22, 2008, for 3 work within wetland buffers. The appellants appeals the SEPA review, BLA decision, and the environmental permit. 4 4. Boundary Line Adjustment Decision: In 2007 Glen Jurges applied for a 5 BLA for the property concerned with this appeal. The BLA was processed and 6 approved by Mason County staff on January 30, 2008, and recorded with the Mason County Auditor on January 31, 2008. No public notice was provided for the review 7 and approval of the BLA. 8 5. SEPA Review: Following the BLA approval, Mr. Jurges applied for a Mason County environmental permit (MEP2008-00047), which was accompanied by 9 a SEPA checklist. The Mason County Staff issued a SEPA Mitigated Determination 10 of Non-Significance ("MDNS") for the project on June 18, 2008. Near the end of the 14-day comment period for this determination, adjoining property owners complained 11 that the posting of the property for this SEPA review (SEP2008-00088) was hidden from sight. Rebecca Hersha agreed to repost the SEPA notice in a more visible 12 location. Ms. Hersha reissued the MDNS and posted the property on July 1, 2008. The reissued MDNS (Exhibit 6)provided that the comment period would end on July 13 15, 2008, and that appeals would have to be filed within 14 days of this appeal period 14 as required in Chapter 15.11 MCC. Mr. Pastore filed his appeal on July 29, 2008, at the Mason County Permit Assistance center (Exhibit 45). The appeal was forwarded 15 to Ms. Hersha, who filed with the Clerk of the County Commissioners on July 31, 2008. 16 17 6. Environmental Permit. The staff report asserts that an environmental permit (Exhibit 9) was issued for the project on July 22, 2008. There is no contrary 18 evidence or assertion for another issuance date in the record. The Examiner finds the permit was issued on July 22, 2008. 19 7. Timing of Appeal. Robert Pastore filed an appeal of the SEPA threshold 20 determination, Mason County environmental permit, and BLA decision for the 21 subject project on July 29, 2008. He filed his appeal with the Mason County Permit Review Center along with the required appeal fees. The appeal was forwarded to 22 Mason County Planner Rebecca Hersha. Ms. Hersha filed the decision with the Clerk of the Board of Commissioners on July 31, 2008, consistent with the date stamp on 23 that document. See Exhibit Nos. 2 and 45. 24 25 ' The staff report appears to be inconsistent in describing the project as accommodating 20 lots while identifying the BLA as creating 23 lots. Whether the project contains 20 or 23 lots is not of significance to this decision. Glen Jurges p. 4 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) 8. Basis of Appeal. In his written appeal (Exhibit 2), Mr. Pastore primarily I objects to the placement of high density development in the rural area proposed by 2 the applicant. He believes the proposed densities to be inconsistent with the Growth Management Act and harmful to wetlands, streams, and the Puget Sound. He finds 3 the SEPA review to be inadequate, both in terms of analysis and mitigation, and requests a determination of significance. He asserts that the SEPA review should 4 address climate change. He contends that the BLA was not subject to SEPA review and should have been and that the environmental permit was issued before SEPA 5 review was completed. All of the appeal arguments related to environmental impacts 6 in the appeal are limited to the adequacy of SEPA review. The environmental permit is not challenged on the basis that it fails to adequately protect critical areas and is 7 only challenged on grounds that it was issued prior to the completion of SEPA review. 8 9 CONCLUSIONS OF LAW 10 Procedural: 11 1. Authority of Hearing Examiner. MCC 15.03.050(7) provides the 12 Examiner with the authority to review and issue a final decision upon all appeals of administrative decisions. 13 2. Motion to Strike. Applicant made two motions to strike the post-hearing 14 submittals of the Appellant (Exhibit Nos. 38 and 49), which included exhibits that were not submitted during the course of the open hearing. The Examiner at the 15 closing of the August 26 hearing specifically left the record open for information 16 regarding 1) the parties closing statements, 2) documentation from the Health Department regarding surface water setbacks for septic drainfields, 3) documentation 17 from Mason County regarding the timeliness of Mr. Pastore's appeal documents, and 4) the CV's of the expert witnesses. Since this involved new information, the parties, 18 including Mr. Pastore, had a right of rebuttal with new information. Mason County Hearing Examiner Rule of Procedure 2.18(a) specifically authorizes the Examiner to 19 leave the record open for additional evidence provided that parties are given the 20 opportunity to provide rebuttal evidence. In response to questions from Mr. Settle about responding to information about the timeliness of filing, the Examiner 21 specifically stated that new evidence on that issue would be allowed in the written closing arguments of the parties. Similarly, new information on the setbacks would 22 also have to be allowed. 23 Of course, rebuttal evidence must be limited to the evidence presented after the close 24 of the hearing, in this case the wetland setbacks and the timing of the filing of the appeal. In this regard Exhibits A-D of Mr. Pastore's September 16, 2008 Post 25 Hearing Brief(Ex. 37) are admitted since they address the timeliness and filing of the appeal. Exhibit E is not admitted since it is not germane to the timing and filing of the appeal or the wetland setbacks. Mr. Pastore's Addendum to Post Hearing Brief Glen Jurges p. 5 Findings, Conclusions and Decision 1 PA0708296.DOC;I/13009.900000/} (Ex. 48) is also admitted since it addresses surface water setbacks to septic drainage I fields. 2 3. Timeliness of BLA Appeal. Mason County issued the BLA decision on 3 January 30, 2008. Mr. Pastore filed an appeal to this decision with the Mason County Permit Review Center on July 29, 2008, almost six months after the issuance of the 4 decision. MCC 15.11.020(a) requires appeals to the Examiner to be filed 5 ...within fourteen days after the date of the decision being appealed. 6 The date of the decision and the date from which appeal periods shall be calculated shall be the date on which the written action was either 7 mailed or transmitted by hand, whichever is done and whichever is earliest,to all parties for which transmittal is required for the action. 8 MCC 15.15.010 classifies BLAs as Type II permit applications. MCC 15.03.015(d) 9 provides that no notice of decision is required for Type II decisions, so the only party 10 entitled to a copy of the decision would be the applicant.2 The record does not identify when the BLA decision was sent to the applicant. However, it was recorded on 11 January 31, 2008, and this could not have occurred without the consent of the applicant. Consequently, at the latest the applicant received the decision on 12 January 31, 2008, and the 14 day appeal had long expired by the time the appellant 13 filed his appeal on July 29, 2008. 14 The appellant essentially asserts that the Examiner should extend the 14-day appeal period imposed by MCC 15.11.020(a) because the appellant received no notice of the 15 BLA decision and imposing the 14-day appeal period would violate his due process rights. The case law is clear that Hearing Examiners do not have the authority to rule 16 on constitutional issues. Exendine v. City of Sammamish 127 Wn. App. 574, 113 P.3d 494 (2005); Prisk v. Poulsbo 46 Wn. App. 793,732 P.2d 1013 (1987). Exendine 17 found that a city council does not have the power to enforce, interpret, or rule on 18 constitutional issues and therefore is not able to delegate such power to the hearing examiner. Exendine at 586-88. In addition, Prisk held that city councils do not have 19 the authority to rule on the constitutionality of their ordinances. Prisk at 798. 20 The appellant's appeal regarding the BLA approval is dismissed as untimely. 21 4. Timeliness of SEPA Appeal: It is uncontested that the Clerk of the Board of Commissioners received the complaint more than 14 days after issuance of the �✓ SEPA decision. However, it is also uncontested that Mr. Pastore filed his appeal with 21) 24 2 The MCC does not appear to even require transmittal of a final decision to the applicant. Taken literally, this would mean that no party is entitled to a copy of the 25 decision and the appeal period would necessarily have to run from the date the County makes a final decision. In either case, the 14-day appeal period has long expired. Glen Jurges p. 6 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) the Mason County Permit Center on July 29, 2008, within the 14-day appeal period. I The legal question is whether filing with the Mason County Permit Center satisfies 2 the MCC 15.11.020(a) requirement (quoted in Conclusion 3 above) that appellants file their appeals with the Clerk of the Board of Commissioners. Although the case 3 law is somewhat divided on this issue, the most legally defensible interpretation requires filing with the Clerk of the Board of Commissioners. 4 A couple of significant State Supreme Court cases provide conflicting opinions on 5 whether substantial compliance is sufficient for serving specified parties in 6 jurisdictional laws such as MCC 15.11.020(a). In Nitardy v. Snohomish County, 105 Wn.2d 133 (1986), the Court was faced with the interpretation of RCW 4.28.080, 7 which requires service on a county to be filed with the county auditor. The plaintiff of that case served process on the secretary to the county executive. The Court 8 concluded service was insufficient, as follows: 9 The legislature has named a specific person who is to be served who is 10 to be served when the defendant is a governmental body. See RCW 4.28.080(1), (2), (3). The applicable statutory clause is clear in its 11 mandate. Service on anyone other than the Auditor is insufficient. 12 105 Wn.2d at 598. 13 The Court allowed substantial compliance under similar circumstances in another 14 case, Black v. Dept. of Labor and Industries, 131 Wn.2d 547 (1997). Black involved the interpretation of RCW 52.51.110, which provides that failure to file the appeal 15 within 30 days of a final decision of the Board of Industrial Appeals renders the Board decision final. RCW 52.51.110 went on to provide that "such appeal shall be 16 perfected" by filing a copy of the notice of appeal upon the director of the Board of 17 Industrial Appeals. The plaintiff of that case filed his notice of appeal upon an Assistant Attorney General assigned to represent the Department of Labor and 18 Industries. The Court determined service on the Assistant Attorney General was sufficient, since it was reasonably calculated to give notice to the interested party. 19 131 Wn.2d at 557. 20 In the case law analysis of MCC 15.11.020(a), the most analogous service 21 requirements are in RCW 36.70C.040, the service statute for the Land Use Petition Act ("LUPA"), Chapter 36.70C RCW. As concluded by one court in reviewing the 22 numerous appellate court cases interpreting RCW 36.70C.040, "filing deadlines and service on the proper parties are jurisdictional requirements." Keep Watson Cutoff 23 Rural v. Kittitas County, 145 Wn. App. 31, 37 (2008). In this regard, all LUPA cases construing service requirements have dismissed LUPA appeals where petitioners 24 failed to serve the proper party or failed to serve the parry within LUPA service 25 deadlines. The most applicable case in this regard is Overhulse Neighborhood Association v. Thurston County, 94 Wn. App. 593 (1999). RCW 36.70C.040 identifies several parties who must be served with a LUPA petition, including the Glen Jurges p. 7 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/) county auditor for lawsuits against a county. Instead of serving the county auditor, I the Overhulse plaintiff served the Board of Commissioners by serving an employee at 2 the office of the Board. The plaintiff's attorney even asked the employee, "Is this the right place to leave this?" and the employee accepted the petition without responding 3 and thanked the attorney. The Overhulse court concluded that the superior court correctly dismissed the case for failure to serve the proper party, due to the 4 unequivocal directives of LUPA. 145 Wn. App. at 599. 5 It must be noted that although MCC 15.11.020(a) is analogous to the service 6 requirements of RCW 36.70C.040, there are differences. RCW 36.70C.040 does use stronger language in its service requirements, i.e., "a land use petition is barred, and 7 the court may not grant review, unless the petition is timely filed...on the following persons...." However, no similar language is present in the service statute in the 8 Nitardy decision, which simply identified the county auditor as a person who must be served in actions against counties. The primary conclusion in both Nitardy and the 9 LUPA service cases is that the service statutes are clear and unequivocal as to who 10 must be served, as is the case for MCC 15.11.020(a). In contrast, the service statute in Black differentiated between the deadline for service, which it identified as 11 necessary for jurisdiction, and the parties for service, which it only identified as necessary to "perfect" the appeal. Further, as noted in Overhulse, Black limited its 12 holding to the facts of the case. Overhulse, 94 Wn.2d at FN 2. 13 Of course, the LUPA jurisdictional cases deal with state statutes and judicial 14 jurisdiction and the law at issue in this case is a local ordinance. However, as demonstrated by the cases cited in the Applicant's Post-Hearing Brief, the courts are 15 just as strict in construing municipal ordinances that govern appeal procedures. See, e.g., Burnett v. Tacoma City Light, 124 Wn. App. 550 (2004); Graham Thrift Group 16 v. Pierce County, 75 Wn. App. 263 (1994). Adherence to strict construction of jurisdictional requirements is particularly important in land use ordinances due to the 17 strong public policy supporting administrative finality in land use decisions. See, 18 Nykreim v. Chelan County, 146 Wn.2d 904, 931 (2002). If substantial compliance is allowed for local service requirements, it will never be entirely clear whether serving 19 one public official as opposed to another is "close enough" to local requirements to validate an appeal. Years of litigation inevitably follow as parties dispute the validity 20 of a local decision-maker's subjective determination on whether service was 1 adequate. Strict construction of local land use jurisdictional requirements ensures both equal treatment in the appeals process and finality. Mr. Pastore raises the legitimate issue that the County accepted his appeal fee and 2; appeal in the Permit Assistance Center. He is essentially arguing a form of promissory or equitable estoppel, where he relied to his detriment upon the actions of 24 the County in implying that service was adequate upon the Permit Assistance Center. 25 As previously discussed, in the Overhulse case the petitioner's attorney expressly inquired whether he was serving the right person for his LUPA action, and the County employee still accepted the petition and made no effort to direct the petitioner Glen Jurges p. 8 Findings, Conclusions and Decision PA0708296.DOC;1/13009.900000/) to the right person. Moreover, to the extent that Mr. Pastore is arguing equitable or 1 promissory estoppel, the Examiner has no authority to consider those doctrines. See, 2 Chaussee v. Snohomish County Council, 38 Wn. App. 630 (1984). 3 Mr. Pastore did not serve his SEPA appeal upon the Board of Commissioners within the timeframe required by MCC 15.11.020(a). His SEPA appeal is dismissed as 4 untimely. 5 Substantive: 6 5. Environmental Permit Compliance with SEPA. As noted in Finding of Fact 7 No. 5, Mr. Pastore does not challenge the adequacy of critical area protection for the environmental permit. His challenge on the environmental permit is limited to the 8 assertion that the environmental permit was issued prior to the completion of SEPA 9 review, as required by WAC 197-11-070. The environmental permit was issued on July 22, 2008, after the issuance of the final MDNS and expiration of the 14-day 10 comment period as required by WAC 197-11-070. The environmental permit is sustained. 11 DECISION 12 TIfd�PA and BLA appeals are dismissed as untimely. of the 13 environmental permit is sustained. ^ 14 Dated this 16th day of October, 2008. 15 16 Phil Olbrechts 17 Mason County Hearing Examiner 18 19 20 21 22 23 24 25 Glen Jurges P. 9 Findings, Conclusions and Decision (PA0708296.DOC;1/13009.900000/)