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BEFORE THE HEARING EXAMINER FOR
7 THE CITY OF BLACK DIAMOND
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9 IN RE APPEAL OF ADEQUACY OF
FINAL ENVIRONMENTAL IMPACT
10 STATEMENT FOR LAWSON HILLS No.
MASTER PLANNED DEVELOPMENT –
11 PLN09-0016 NOTICE OF APPEAL OF ADEQUACY OF
FEIS BY THE CITY OF MAPLE VALLEY
12 AND PRE-HEARING MOTION ON
JURISDICTION TO HEAR SEPA APPEAL,
13 AND ALTERNATIVELY TO INTERVENE
IN MARCH 6, 2010 SEPA APPEAL
14 HEARING AND NOTICE OF
UNAVAILABILITY OF COUNSEL
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TO: The Community Development Director of the City of Black Diamond
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AND TO: The Hearing Examiner of the City of Black Diamond
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AND TO: Parties of Record in the Pending SEPA Appeals
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The City of Maple Valley (hereinafter “Maple Valley”) hereby appeals the adequacy of
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the December 11, 2009 Final Environmental Impact Statement (hereinafter “FEIS”) for the
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Lawson Hills Master Planned Development (hereinafter the “Proposal”). Because Maple
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Valley believes that BDMC Table 18.08.200-2 governs this appeal, Maple Valley moves the
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Hearing Examiner to determine that he does not have jurisdiction to hear the pending SEPA
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appeals on the adequacy of the FEIS. Alternatively, if the Examiner determines that he does
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II. Specific Relief Sought
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Maple Valley requests that the Hearing Examiner or City Council, as applicable,
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determine that the FEIS is inadequate for the reasons set forth in Maple Valley’s October 29,
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2009 comment letter.
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IV. Introduction to Pre-hearing Motions Related to Black Diamond’s Conflicting
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SEPA Appeal Procedures
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Maple Valley is aware of the fact that three other SEPA appeals (PLN09-0039, PLN09-
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0042, PLN09-0043) were filed with the City of Black Diamond on or around December 28,
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2009 and that a hearing on these appeals has been scheduled to begin on March 6, 2010. Maple
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Valley is also aware of the City of Black Diamond’s Notice of Public Hearing for these appeals
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which states: “Participation in the FEIS appeal hearings will be limited to the appellants,
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applicant and city staff and their respective legal and expert witnesses. No other testimony will
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be allowed.” To the extent that the City of Black Diamond intends to limit SEPA appeals to
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the three appeals that have already been filed, and to the extent that the City of Black Diamond
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would claim that Maple Valley’s administrative SEPA appeal is time barred, the City of Maple
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Valley hereby objects and, for the reasons stated below, asserts its right to administratively
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appeal the FEIS for the Proposal to the Black Diamond City Council.
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The subject FEIS was issued by the City of Black Diamond on December 11, 2009.
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The City’s notice of FEIS availability stated that “a public hearing date for the MPD
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applications has yet to be established.” One of the fundamental principles of SEPA is that
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SEPA appeals must not be orphaned from the underlying governmental action. RCW
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43.21C.075(3) provides as follows:
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If an agency has a procedure for appeals of agency environmental
23 determinations made under this chapter, such procedure:
24 (a) Shall allow no more than one agency appeal proceeding on each
procedural determination (the adequacy of a determination of
25 significance/nonsignificance or of a final environmental impact statement);
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Additionally, the “consolidated” hearing that has been scheduled to begin on March 6, 2010 isn’t really a
23 consolidated hearing at all to the extent that would-be appellants are prevented from participating in the portion of
the hearing addressing appeals to EIS adequacy. The hearing, as currently scheduled, is really two separate
24 hearings: one for parties who filed orphan SEPA appeals in December 2009; and one for the general public on the
MPD application. This structure, which prevents the public from participating in the appeal portion of the hearing,
25 violates the consolidation requirement of RCW 43.21C.075, and by effectively providing two open record
hearings, also violates RCW 36.70B.060.
16 West Main, the appeal period in BDMC 19.04.250 should be deemed inapplicable to the extent
17 that it would prevent participants in the MPD open record hearing from also appealing the
18 adequacy of the EIS to the City Council in conjunction with a closed record hearing on the
19 recommendation.
20 Maple Valley is not the only party to find Black Diamond’s SEPA appeal procedures
21 troubling. Indeed, Black Diamond’s own Hearing Examiner addresses these problems with the
7 the applicant may try to rely on the language from the recently adopted version of BDMC
8 19.04.250.I as providing the exclusive method of appealing a SEPA decision. This reliance is
9 questionable, as the Hearing Examiner pointed out in his Pre-hearing order. The City of Maple
10 Valley, and perhaps many other members of the public, relied upon the existence of the
11 provisions in BDMC Table 18.08.200-2 in not filing an appeal in December 2009. The new
12 version of BDMC 19.04.250 did not go into effect until over a month after the FEIS issued, and
13 the amended version still conflicts with 18.08.200-2. Furthermore, BDMC 19.04.250.I does
14 not specifically cross-reference, nor does it repeal BDMC Table 18.08.200-2. Maple Valley
15 asserts that BDMC 19.04.250 (both versions) are inapplicable, for the reasons stated herein,
16 and under West Main, and that the applicable code section is BDMC Table 18.08.200-2.
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19 Pursuant to BDMC Table 18.08.200-2, the Hearing Examiner does not have subject
20 matter jurisdiction to consider the SEPA appeal; rather, the City Council has jurisdiction to
21 hear the appeal. To allow one SEPA appeal hearing before the examiner and another SEPA
22 appeal hearing before the City Council would violate RCW 43.21C.075(3)(a) and RCW
23 36.70B.050 by creating more than one agency SEPA appeal hearing. To avoid this unlawful
24 procedure, Maple Valley respectfully requests that the Black Diamond Hearing Examiner
25 determine that he does not have subject matter jurisdiction to hear the administrative SEPA
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VII. Motion to Intervene in the Hearing Examiner’s SEPA Appeal Hearing
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In the alternative, and while reserving its rights to challenge the impropriety of the
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Hearing Examiner’s jurisdiction to conduct a SEPA appeal proceeding, Maple Valley
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respectfully requests permission to intervene in the scheduled appeal hearing. In making this
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request, Maple Valley also reserves its right to appeal the adequacy of the EIS to the City
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Council.
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The Hearing Examiner may look to the civil rules of superior court for guidance in
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interpreting its own procedures. Hearing Examiner Rules of Procedure, 1.03(b). CR 24 allows
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a party to intervene upon motion “when an applicant’s claim or defense and the main action
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have a question of law or fact in common.” CR 24(b)(2). Here, there are significant questions
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in common as Maple Valley and the three other parties seek to challenge the adequacy of the
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VII. Other Options for Resolving the Jurisdictional Issue
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Another alternative that Black Diamond may wish to consider would be to correct the
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conflicts in its code, and, depending on how those conflicts are corrected, take an appropriate
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subsequent action that would trigger a new, well-publicized, unambiguous appeal period for
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everyone concerned. While this may require the consent of the applicant, it could be the
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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.
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.