You are on page 1of 18

1

6
BEFORE THE HEARING EXAMINER FOR
7 THE CITY OF BLACK DIAMOND
8

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
15

16
TO: The Community Development Director of the City of Black Diamond
17
AND TO: The Hearing Examiner of the City of Black Diamond
18
AND TO: Parties of Record in the Pending SEPA Appeals
19
The City of Maple Valley (hereinafter “Maple Valley”) hereby appeals the adequacy of
20
the December 11, 2009 Final Environmental Impact Statement (hereinafter “FEIS”) for the
21
Lawson Hills Master Planned Development (hereinafter the “Proposal”). Because Maple
22
Valley believes that BDMC Table 18.08.200-2 governs this appeal, Maple Valley moves the
23
Hearing Examiner to determine that he does not have jurisdiction to hear the pending SEPA
24
appeals on the adequacy of the FEIS. Alternatively, if the Examiner determines that he does
25

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 1
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
have jurisdiction over the FEIS adequacy appeal, then Maple Valley moves to intervene in the
2
administrative SEPA appeal hearing scheduled to begin on March 6, 2010.
3
I. Bases for Appeal
4
Maple Valley is located directly north of Black Diamond. Much of the traffic generated
5
by the Proposal will travel north on SR-169 into Maple Valley and is anticipated to have a
6
significant adverse impact on Maple Valley’s transportation network. Maple Valley
7
commented on the draft EIS for the Proposal in a letter dated October 9, 2009 from Stephen R.
8
Clark, the City’s Public Works Director. That letter set forth five areas in which Maple Valley
9
found the draft EIS to be inadequate in its analysis of the Proposal’s traffic related impacts: 1)
10
methodology; 2) year 2025 forecast volumes; 3) trip distribution; 4) trip generation; and 5)
11
mitigation. For each of these areas, Maple Valley provided a suggested action as part of its
12
comment letter. The response to these comments in the final EIS is not adequate and the final
13
EIS still fails to adequately disclose, analyze, and suggest appropriate mitigation for the traffic
14
impacts of the Proposal. Maple Valley’s comment letter and response is attached hereto as
15
Attachment A and incorporated herein by this reference as if set forth in full. Because the
16
disclosure, analysis, and proposed mitigation of traffic impacts upon Maple Valley’s
17
transportation network are not adequate, Maple Valley is an aggrieved party.
18

19
II. Specific Relief Sought
20
Maple Valley requests that the Hearing Examiner or City Council, as applicable,
21
determine that the FEIS is inadequate for the reasons set forth in Maple Valley’s October 29,
22
2009 comment letter.
23

24

25

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 2
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
III. Appeal Fee
2
Maple Valley has submitted a $250.00 fee to accompany this appeal.
3

4
IV. Introduction to Pre-hearing Motions Related to Black Diamond’s Conflicting
5
SEPA Appeal Procedures
6
Maple Valley is aware of the fact that three other SEPA appeals (PLN09-0039, PLN09-
7
0042, PLN09-0043) were filed with the City of Black Diamond on or around December 28,
8
2009 and that a hearing on these appeals has been scheduled to begin on March 6, 2010. Maple
9
Valley is also aware of the City of Black Diamond’s Notice of Public Hearing for these appeals
10
which states: “Participation in the FEIS appeal hearings will be limited to the appellants,
11
applicant and city staff and their respective legal and expert witnesses. No other testimony will
12
be allowed.” To the extent that the City of Black Diamond intends to limit SEPA appeals to
13
the three appeals that have already been filed, and to the extent that the City of Black Diamond
14
would claim that Maple Valley’s administrative SEPA appeal is time barred, the City of Maple
15
Valley hereby objects and, for the reasons stated below, asserts its right to administratively
16
appeal the FEIS for the Proposal to the Black Diamond City Council.
17
The subject FEIS was issued by the City of Black Diamond on December 11, 2009.
18
The City’s notice of FEIS availability stated that “a public hearing date for the MPD
19
applications has yet to be established.” One of the fundamental principles of SEPA is that
20
SEPA appeals must not be orphaned from the underlying governmental action. RCW
21
43.21C.075(3) provides as follows:
22
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);

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 3
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1 (b) Shall consolidate an appeal of procedural issues and of substantive
determinations made under this chapter (such as a decision to require particular
2 mitigation measures or to deny a proposal) with a hearing or appeal on the
underlying governmental action by providing for a single simultaneous
3 hearing before one hearing officer or body to consider the agency decision or
recommendation on a proposal and any environmental determinations made
4 under this chapter…
5 RCW 43.21C.075(3), emphasis added. Black Diamond’s SEPA appeal provisions violate this
6 mandate because they appear to provide for one appeal to the Hearing Examiner and another
7 appeal to the City Council. BDMC Table 18.08.200-2, entitled “SEPA Appeal Structure”
8 provides that appeals of EIS adequacy related to a Type 41 decision are administratively
9 appealed to the City Council. This provision clearly creates a procedure for appealing EIS
10 adequacy to the City Council when the EIS relates to an MPD like the Proposal. If this were
11 the only procedure on the books, the City’s procedures would comply with the SEPA mandate
12 referenced above because it would only provide for one closed-record appeal – the one to the
13 City Council – and that appeal would be consolidated with a closed-record hearing on the
14 Hearing Examiner’s recommendation on the MPD application. It is this procedure that Maple
15 Valley planned on using to appeal the adequacy of the EIS. In other words, Maple Valley was
16 waiting for the recommendation of the Hearing Examiner on the MPD application, and planned
17 to file an appeal of FEIS adequacy when that recommendation was issued.
18 However, Black Diamond is apparently operating under an entirely different SEPA
19 appeal provision found in BDMC 19.04.250. At the time the FEIS issued, BDMC 19.04.250
20 read2 as follows:
21
19.04.250 Appeals.
22
A. Any interested person may appeal a threshold determination, adequacy of a
23 final EIS and the conditions or denials of a requested action made by a
nonelected city official pursuant to the procedures set forth in this section. No
24 1
BDMC 18.08.030 states that MPD applications like the proposal are Type 4 applications.
2
25 It should be noted that as of the date of this appeal, this provision is still codified as part of the City of Black
Diamond’s online municipal code.

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 4
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1 other SEPA appeal shall be allowed.
2 B. All appeals filed pursuant to this section must be filed in writing with the
planning director within fourteen calendar days of the date of the decision
3 appealed from.
4 C. On receipt of a timely written notice of appeal, the planning director shall
advise the hearing examiner of the appeal and request that a date for considering
5 the appeal be established.
6 D. All relevant evidence shall be received during the hearing of the appeal and
the decision shall be made de novo. The procedural determination by the city’s
7 responsible official shall carry substantial weight in any appeal proceeding.
8 E. For any appeal under this section, the city shall provide for a record that shall
consist of the following:
9
1. Findings and conclusions;
10
2. Testimony under oath; and
11
3. A taped or written transcript.
12
F. The city may require the applicant to provide an electronic transcript.
13
G. The city shall give official notice whenever it issues a permit or approval for
14 which a statute or ordinance establishes a time limit for commencing judicial
appeal. (Ord. 857 § 47, 2008; Ord. 299 § 25, 1984)
15
BDMC 19.04.250 (Ord. 857 § 47, 2008), emphasis added. The provision just cited was
16
amended by Ordinance 10-933, which was adopted on January 7, 2010, published on January
17
12, 2010, and became effective on January 17, 2010. The current version of BDMC 19.04.250
18
reads as follows:
19
A. Any aggrieved person may appeal a threshold determination, adequacy of a
20 final EIS and the conditions or denials of a requested action made by a
nonelected city official pursuant to the procedures set forth in this section. No
21 other SEPA appeal shall be allowed. No person may seek judicial review of a
SEPA decision without first exhausting the administrative appeal process set
22 forth herein.
23 B. All appeals filed pursuant to this section must be filed in writing with the
community development director within fourteen calendar days of the date
24 of the decision being appealed. The written appeal shall state concisely the
basis or bases for the appeal, and the specific relief or remedy sought.
25

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 5
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1 C. A fee of $250.00 shall accompany each appeal.
2 D. On receipt of a timely written notice of appeal, the director shall advise the
hearing examiner of the appeal and request that a date for considering the appeal
3 be established.
4 Provided that, if there is a concurrent land use application requiring a
hearing examiner public hearing, then the two hearings shall be combined.
5 The hearing examiner shall make the final decision on a SEPA appeal.
6 E. All relevant evidence shall be received during the hearing of the appeal and
the decision shall be made de novo. The procedural determination by the city's
7 responsible official shall carry substantial weight in any appeal proceeding. The
burden of proof shall be on the appellant, to demonstrate error by a
8 preponderance of the evidence.
9 F. For any appeal under this section, the hearing examiner shall provide a record
that shall consist of the following:
10
1. Findings and conclusions;
11
2. Testimony under oath; and
12
3. A taped or written transcript.
13
G. The city may require the applicant to provide an electronic transcript.
14
H. The city shall give official notice whenever it issues a permit or approval for
15 which a statute or ordinance establishes a time limit for commencing judicial
appeal. Appeal from the Hearing Examiner's decision on a SEPA appeal is to
16 superior court. The judicial appeal must be filed within 21 days after the Hearing
Examiner renders a decision, unless the SEPA appeal is consolidated with the
17 underlying governmental action, such as a permit application. If there is
consolidation, judicial appeal of the Hearing Examiner's decision on the SEPA
18 appeal must be filed within 21 days after the City's final decision on the
underlying government action.
19
I. This chapter constitutes the exclusive administrative process to appeal a
20 SEPA decision. Notwithstanding any other provision of the Municipal
Code, the provisions of this chapter shall apply. This provision shall be
21 construed in conjunction with BDMC 18.98, RCW 36.70B, and WAC197-ll-680
(3) (a) (v).
22
BDMC 19.04.250 (Ord. 10-933), emphasis added. These two versions of BDMC 19.04.250
23
conflict with BDMC Table 18.08.200-2. They also conflict with the consolidation requirement
24
of RCW 43.21C.075(3)(b) to the extent that the Black Diamond would construe them to require
25

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 6
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
that an appeal of the FEIS be filed within 14 days of December 11, 2009, a position that Black
2
Diamond appears to be taking based on the scheduling of the three pending appeals.
3
Assuming for the sake of argument that BDMC 19.04.250 (the 2009 version) is the
4
applicable appeal provision – a position with which Maple Valley strongly disagrees – it still
5
would have been improper for Maple Valley to file an appeal in December 2009 for at least two
6
reasons.3
7
First, according to Black Diamond’s own December 11, 2009 notice of EIS availability,
8
a public hearing for the MPD applications had yet to be established. So, at that point in time,
9
there was not any hearing on the underlying government action with which to consolidate the
10
SEPA appeal, and any appeal by Maple Valley would have been an “orphan” SEPA appeal in
11
violation of RCW 43.21C.075(3).
12
Second, and further underscoring the previous point, the applicant’s revised MPD
13
application had not even been submitted on December 11, 2009. So again, there would not
14
have been any basis to treat December 11, 2009 as an appeal period “trigger date.” Maple
15
Valley is aware that the revised MPD application was submitted December 31, 2009. To
16
construe the code to require the filing of an EIS appeal before the project application has even
17
been submitted, is absurd, and inconsistent with state law. In light of all these problems with
18
the Black Diamond municipal code, one can understand why the City of Maple Valley
19
followed the procedure under BDMC Table 18.08.200-2. This code provision allows for a
20

21

22
3
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.

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 7
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
closed record EIS adequacy appeal to the City Council only after a recommendation had been
2
issued by the Hearing Examiner on the MPD application.
3
Maple Valley’s objection to the pending Black Diamond FEIS appeal process finds
4
support in West Main Associates v. City of Bellevue, 49 Wn. App. 513, 742 P.2d 1266 (1987).
5
In West Main, the applicant argued that a particular SEPA appeal was untimely because the
6
appellant had not filed a separate SEPA appeal within the 10-day period set forth in Bellevue’s
7
SEPA ordinance. The appellant had filed, however, an appeal within the 20-day period set
8
forth for appealing the underlying design review decision. The court ruled that Bellevue’s 10-
9
day appeal procedure was inapplicable under RCW 43.21C.075(3)(b).
10
This statute requires consolidation of local appeal procedures for the underlying
11 government action and SEPA determinations made in such action. Since
Bellevue's appeal period for SEPA determinations is shorter than its appeal
12 period for the underlying action, the SEPA appeal period is inapplicable in this
case under RCW 43.21C.075(3)(b) and WAC 197-11-680(3)(a)(v). Therefore,
13 the trial court correctly concluded that Three Tower's failure to file a separate
SEPA appeal did not preclude it from raising SEPA issues in the council
14 proceedings.
15 West Main Associates v. City of Bellevue, 49 Wn. App. 513, 519, 742 P.2d 1266 (1987). As in

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

22 Black Diamond Municipal Code in his pre-hearing order in this matter.

23 At the outset clarification is needed from staff on whether the Examiner's


decision on the SEPA appeals is appealable to court or the City Council.
24 The Hearing Examiner will not presume to dictate the appellate authority of the
City Council. BDMC Table 18.08.200-2 apparently provides that a decision on
25 EIS adequacy for Type 4 decisions (which includes master plans) is appealable

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 8
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1 to the City Council. BDMC 19.04.250, as written when the master plan vested
and the EIS appeals were perfected, provides that appeals of EIS adequacy are to
2 be heard by the Hearing Examiner, but does not specify the rights of appeal to
the Examiner's decision (or even whether the Examiner's decision is final or a
3 recommendation). 19.04.250 was amended on January 7, 2010 to expressly state
that the Examiner's decision is only appealable to Superior Court, which
4 conflicts with Table 18.08.200-2. Since the amendments to 19.04.250 are
procedural only, there is some room for disagreement as to whether the
5 amendments would retroactively apply to the vested master plan application.
6 Hearing Examiner’s Pre-hearing order. Maple Valley anticipates that Black Diamond and/or

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.

17

18 VI. Motion Challenging Hearing Examiner’s Subject Matter Jurisdiction

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

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 9
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
appeal and that the examiner’s jurisdiction is limited to conducting the open record hearing on
2
the MPD application and making a recommendation to the City Council.
3
A close reading of the Black Diamond Municipal Code should lead the Hearing
4
Examiner to the conclusion that he does not have jurisdiction over the SEPA appeal. As
5
discussed above, there are two code provisions in conflict: BDMC Table 18.08.200-2 and
6
BDMC 19.04.250 (presumably the version that existed in December of 2009). These two
7
provisions cannot be reconciled. The SEPA appeal either goes to the Hearing Examiner or it
8
goes to the City Council. BDMC 18.08.020 indicates that BDMC Table 18.08.200-2 should
9
control over BDMC 19.04.250. “The provisions of this chapter supersede all other procedural
10
requirements that may exist in other sections of the City Code. Where conflicts occur
11
between provisions of this chapter and/or between this chapter and other City
12
regulations, the requirements of this chapter shall apply.” BDMC 18.08.020 (emphasis
13
added). As between these two code sections, BDMC Table 18.08.200-2 should control because
14
it is more specific to this type of appeal than BDMC 19.04.250. Knowles v. Holly, 82 Wn.2d
15
694, 513 P.2d 18 (1973) (“where there is a conflict between one statutory provision which
16
deals with a subject in a general way and another which deals with the same subject in a
17
specific manner, the latter will prevail”).
18
BDMC Table 18.08.200-2 breaks down the various different kinds of possible SEPA
19
appeals in the context of the specific type of land use decision at issue. Indeed, this table calls
20
out the exact combination of factors present in this case: a Type 4 land use application and an
21
appeal of EIS adequacy. Under those precise circumstances, the table states that the SEPA
22
appeal is heard by the City Council.4 BDMC 19.04.250, on the other hand, is a more general
23
code section in that it purports to apply to SEPA appeals generally, without consideration given
24
4
25 Presumably this appeal would be a closed record appeal since the Hearing Examiner conducts an open record
hearing for a Type 4 application.

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 10
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
to whether the appeal is of an EIS or a DNS and without consideration given as to the type of
2
land use application involved.
3
In fact, the language of BDMC 19.04.250 does not fit this particular context well at all.
4
It calls for the SEPA appeal to be filed within 14 days of the “decision appealed from.” To
5
apply BDMC 19.04.250 to this appeal would make no sense because doing so would purport to
6
allow a SEPA appeal to the Hearing Examiner (BDMC 19.04.250.C) after the City Council has
7
already made a final decision on the MPD application. Because BDMC Table 18.08.200-2
8
provides a special procedure to deal with exactly this situation, the Hearing Examiner should
9
not force a tortured construction of BDMC 19.04.250.C. The Hearing Examiner should find
10
that he does not have jurisdiction to conduct the SEPA appeal hearing and should limit the
11
proceedings before him to the open record hearing on the merits of the MPD application.
12

13
VII. Motion to Intervene in the Hearing Examiner’s SEPA Appeal Hearing
14
In the alternative, and while reserving its rights to challenge the impropriety of the
15
Hearing Examiner’s jurisdiction to conduct a SEPA appeal proceeding, Maple Valley
16
respectfully requests permission to intervene in the scheduled appeal hearing. In making this
17
request, Maple Valley also reserves its right to appeal the adequacy of the EIS to the City
18
Council.
19
The Hearing Examiner may look to the civil rules of superior court for guidance in
20
interpreting its own procedures. Hearing Examiner Rules of Procedure, 1.03(b). CR 24 allows
21
a party to intervene upon motion “when an applicant’s claim or defense and the main action
22
have a question of law or fact in common.” CR 24(b)(2). Here, there are significant questions
23
in common as Maple Valley and the three other parties seek to challenge the adequacy of the
24

25

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 11
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1
FEIS for the Proposal. Therefore, under the guidance provided by CR 24, the Hearing
2
Examiner has the authority to allow Maple Valley to intervene.
3
To preserve all possible administrative remedies available to it, and because the Hearing
4
Examiner may not rule upon this motion until the March 6, 2010 hearing, Maple Valley intends
5
to file its pre-hearing brief, witness list, and curricula vitae of experts no later than February 15,
6
2010. This way, no party will be prejudiced by Maple Valley’s intervention. Maple Valley is
7
concerned, however, about the burden that would be placed upon it under the current case
8
schedule. For example, Maple Valley would have much less time to prepare its pre-hearing
9
brief than it would have if the SEPA appeal were to be heard by the City Council after the
10
Examiner’s open record hearing. Because of these concerns, and because it believes that
11
BDMC 18.08.200-2 is controlling, Maple Valley reserves its right to object to the Examiner’s
12
jurisdiction even if it is allowed to intervene.
13
By filing this appeal, and motion, and asserting the conflicts, ambiguities and
14
inconsistencies in Black Diamond’s SEPA appeal structure, Maple Valley is doing everything
15
it must do to preserve its administrative appeal rights and to attempt to exhaust administrative
16
remedies. If the Hearing Examiner or City Council refuses to allow Maple Valley to participate
17
in the EIS administrative appeal, we anticipate that Maple Valley’s “failure” to exhaust would
18
be excused by a reviewing court. In Citizens for Clean Air v City of Spokane, 114 Wn.2d 20,
19
785 P.2d 447 (1990), the court analyzed when it will excuse an appellant’s failure to exhaust
20
administrative remedies. While the appellant in Citizens for Clean Air was not excused, the
21
facts here are distinguishable in that Maple Valley has done everything it can to be excused if
22
Black Diamond refuses Maple Valley’s participation. As stated in Citizens for Clean Air:
23
To establish that the procedures themselves are so poorly defined that we should
24 excuse exhaustion, the litigant must attempt to appeal. A litigant who makes a
sincere effort to clarify ambiguities in the ordinance and to use the appeal
25 process may complain about poorly defined administrative machinery. If we are

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 12
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
1 persuaded that no “clearly defined machinery” exists for resolving specific
complaints, we will excuse exhaustion.
2
***
3
Lack of clear procedure can make a remedy inadequate. But the litigants who
4 wish to establish that the procedure is so poor as to be inadequate cannot rely on
bad draftsmanship alone. It is not unfair to expect citizens groups to use
5 available administrative procedures. Fairness to the agency requires that would-
be litigants try to clarify ambiguity before going to court.
6
Citizens for Clean Air v City of Spokane, 114 Wn.2d 20, 27-28, 785 P.2d 447 (1990). Here,
7
Maple Valley is attempting to appeal and trying to clarify ambiguities (asserting that they are,
8
in fact, outright conflicts) in the Black Diamond code. It is highly likely, given the conflicts in
9
the code and given the fact that this notice and motion is being submitted more than three
10
weeks in advance of the scheduled appeal hearing, that a reviewing court would excuse an
11
alleged “failure” to exhaust administrative remedies. Black Diamond should (through its
12
Hearing Examiner or its City Council) allow Maple Valley to participate in the SEPA appeal.
13
Doing so will avoid possible lengthy litigation on these procedural issues which could result in
14
a remand, further delaying Black Diamond’s consideration of the Proposal. Black Diamond
15
should either acknowledge that the Hearing Examiner does not have jurisdiction over this
16
appeal and allow the appeal to be heard by the City Council, or, alternatively allow Maple
17
Valley to intervene in the appeal hearing before the Examiner.
18

19
VII. Other Options for Resolving the Jurisdictional Issue
20
Another alternative that Black Diamond may wish to consider would be to correct the
21
conflicts in its code, and, depending on how those conflicts are corrected, take an appropriate
22
subsequent action that would trigger a new, well-publicized, unambiguous appeal period for
23
everyone concerned. While this may require the consent of the applicant, it could be the
24

25

NOTICE OF APPEAL OF THE CITY OF MAPLE MORRIS & TARADAY, P.C.


VALLEY AND PRE-HEARING MOTIONS - 13
1319 Dexter Avenue N, #030, Seattle, WA 98109
Tel. 206-518-5272 • Fax 206-518-5273
E-mail: jeff@morris-taraday.com
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.

Attachment A to Maple Valley's Notice of Appeal

Black Diamond Page 249


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 Page 250


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 Page 251


Black Diamond Page 252

You might also like