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The Mother of All
Council Meetings, November 25
Second Van Eaton Appeal to be
Heard, 8 p.m. at Community Center
by
Dixie A. Walter
Along
with other concerned citizens, I sat quietly September 16, 2002. We
listened to a three-hour “public hearing” concerning a conditional use
permit applied for by developer Rowland Litzenberger for his proposed
“mini-warehouse storage units.” If approved, the planned project calls
for building up to 100 storage units off Center Street E. near the Mashell
River.
It was actually during this hearing that Pat Van Eaton, sitting in
the audience, was notified by commission chair Steve Lind that he would be
“allowed” to address the subject of an appeal he had filed with the town
August 19. The appeal concerned the town’s earlier Determination of
Non-Significance (DNS) on the same project. Thus, there was plenty of
confusion as to what was actually taking place.
It appeared that in addition to a public hearing on Litzenberger’s
conditional use permit, the commission also attempted to complete a public
hearing on Van Eaton’s appeal, to which he had yet to receive a formal
response from the town.
According to Van Eaton, he filed his appeal (Appeal A) based on
concerns about the amount of asphalt which the developers planned to pour on
the site without adequate stormwater protection, along with the fact
there’s no way to control what types of materials could be stored in the
units.
It appears the meeting was botched from the
beginning. All parties of record, the appellant, applicant and others who
expressed interest in the project, should have been notified, in advance,
that the appeal would be heard at the same time as the public hearing on the
proposed project. Although the town placed a legal notice announcing the
public hearing for a conditional use permit concerning the storage units on
September 16, Pat Van Eaton was not informed his appeal would be heard at
the same time. Pat explained to the planning commission that he didn’t
think it was fair to hear his appeal because he did not know he had to
present it at that time. This situation begs the questions, “What if Pat
Van Eaton hadn’t attended that particular meeting? What would have been
done with his appeal?”
Appeal A addressed the fact that a stormwater retention system should
have at a minimum “an oil water separator that will also trap heavy
metals.” The first appeal also asks for a written plan describing, “How
the stormwater system will be maintained and monitored with a condition that
a PE [professional engineer licensed by the state] certify to the Town of
Eatonville every five years that the stormwater system is being maintained,
and functioning as designed as long as these structures exist.”
During a ten-minute break from the “hearing” Van
Eaton ran home and grabbed some documentation to present as evidence.
Litzenberger was unhappy about this and said it was a delay tactic.
Pat lives a few minutes drive from the town hall. Rowland lives many
miles from town. I’m sure if he lived close enough he would have been able
to run home too. He also said it was frustrating to think the commission
might delay their decision. From the audience Louise Ann Van Eaton pointed
out that no project should be rushed.
At the beginning of this “hearing,” commissioners Grins Pierce,
Litzenberger’s father-in-law, and Richard Ames, a business associate of
Litzenberger’s, recused (removed) themselves, citing conflicts of
interest. Next, commission chair Lind asked commissioner Bobbi Allison to *recuse
herself.
He said two parties contacted him with a story she had ex parte
communication with Pat Van Eaton about the “overall situation.” Lind
named one person, town council member and former planning commission Mike
Gallagher. For the record Pat Van Eaton said he never had ex parte
communication with commissioner Allison. Lind also explained the accusation
didn’t have to be “true, just perceived…” Under pressure to leave
the room, Bobbi recused herself.
However,
before this happened she went on record regarding her thoughts about the
process unfolding at the meeting. Commissioner Allison said, “…I’ve
gotten legal advice. SEPA [State Environmental Policy Act] guidelines state
the appeal needs to be satisfied before the commission can have a public
hearing.
“I know that the public appeals
process through SEPA guidelines strictly state by RCW and WAC [state laws]
that we must satisfy an appeal on any DNS [Determination of
Non-Significance] prior to holding any public hearings. The appellant to the
DNS has that day in court.”
Pat Van Eaton tried to explain his
position, “It appears things are backwards. I filed an appeal and I need
to have my day in court. I’ve never been notified when this will be. They
give you 60 days to do it [respond] in the appeal period. I think this thing
is just backwards. The appeal needs to be handled first, then the public
hearing…”
Pat’s first appeal addressed the fact that a stormwater retention
system should have at a minimum “an oil water separator that will also
trap heavy metals.” The first
appeal also asks for a written plan describing, “How the stormwater system
will be maintained and monitored with a condition that a PE [professional
engineer licensed by the state] certify to the Town of Eatonville every five
years that the stormwater system is being maintained, and functioning as
designed as long as these structures exist.”
Appeal A was heard September 16 in a rather confused manner in my
opinion. It was sometimes difficult for me to figure out which issue was on
the table, the conditional use permit or Appeal A. In the end the final
motion carried unanimously. The motion states, “… issue a Conditional
Use Permit for the mini storage development with a system designed by a
Professional Engineer [PE] including an oil/water separator [a law in
Eatonville since 1997], retention plan for spill management and a plan for a
future maintenance schedule.”
In
a letter to the Eatonville Planning Commission from Jamieson Van Eaton dated Friday, September 13,
2002, the public works director wrote in part, “…said appeal is found to
have merit regarding all issues submitted.” This letter is postmarked
Tacoma, September 13. This letter was received by Edwinna Van Eaton Monday,
September 16, hours before the public hearing. It doesn’t say anything
about the appeal being heard at the same time. Pat and Edwinna Van Eaton
were informed the appeal was “rejected” in a letter dated September 18. The letter also states, “Merit of issues of appeal
adequately considered by public hearing process before the Planning
Commission on September 16, 2002.”
Nine days later Pat Van Eaton filled the second appeal (Appeal B). Appeal
A is seven pages six of which are copies of laws pertaining to the issue.
Appeal B numbers 18 pages, most of them copies of laws from various state,
county and town sources. Appeal A noted four areas of apprehension. Appeal B
addresses eleven areas.
Among them “Conditional Use Permit
granted by the planning commission lacks the language to adequately protect
the aquifer [water] recharge area; Stormwater Management and Site Manual
rules not applied…The only way Eatonville can comply with state and
federal law is by following this manual; Lacks a PSQC (Permanent Stormwater
Quality Control Plan); Applicant was administratively relieved of adequate
aquifer protection measures by permit wording; Aquifer recharge area is
highly susceptible to contamination…
“Finding of Fact should have
included this is a ‘Critical [emphasis
mine] aquifer recharge area as per EMC [Eatonville Municipal Code]; Does not
clearly state that stormwater is polluted water and is one of the main
reasons for having an engineered stormwater system.”
Appeal B was filed at the town hall
September 24 following established procedure. The town had 60 days before
they had to deal with it. Appeal B goes to the Eatonville Town Council
Monday, November 25 at 8 p.m. following the regular council meeting, which
begins at 7 p.m.
This will be a Closed Record Hearing,
meaning the council will take no new exhibits or testimony from the
concerned parties or the public. Public testimony was already given at the
funky planning commission hearing. Other than the council, Pat Van Eaton and
Rowland Litzenberger will be the only ones, under law, who will be able to
speak.
This stipulation should not deter citizens
from observing the meeting progress. It won’t only be interesting, the
meeting will also be a real lesson as to how our elected officials make
determinations which will affect us all.
One very interesting situation evolves around council member Mike
Gallagher. He has had an ex parte communication with the planning commission
chair about the first appeal. And he reaps financial gain from some of the
Litzenberger development projects. Should Mike Gallagher recuse himself from
the Appeal B hearing before the council?
Will anyone try to force Chelan Jarrett to recuse herself because her
maiden name is Van Eaton? That gambit was tried at the September 16 planning
commission when commissioner Grins Pierce suggested Public Works Director
Jamieson Van Eaton be recused. The same question also applies to the mayor
since he is married to a Van Eaton. Would anyone attempt to remove him from
the council table? (Jamieson Van Eaton is staff and the appearance of
fairness rules do not apply to staff.)
Are
Appeals Frivolous?
There must be substance to the appeal. There
are certain procedures one must go through to file an appeal and there must
be a solid basis for the action. Laws need to back up the appeal. People
can’t just file because they don’t like the color of a house.
According to lifelong local resident Charles McTee, no appeal went
before the council during his 25-year service on the Eatonville Planning
Commission. No one else I’ve asked, and I’ve asked many people,
remembers any appeals either. So basically what we have are two appeals in
town memory - both of them very recent.
Sometime during the first week of November, Jamieson Van Eaton
discovered Resolution 99 – HH. Among the items on this resolution, passed
by the council September 27, 1999 and taking effect November 1, 1999, is a
$250 fee for filing an appeal. Until that point in time the relevant parties
didn’t know Eatonville charged its citizens to make an appeal.
Pat and Edwinna received a bill for $500 from the town November 8,
raising the question whether an appellant can be billed long after their
appeal was received and processed. Does that sound fair to you? Shouldn’t
someone have known about this fee earlier? This situation leads folks to
wonder how many other town laws are on the books that the town leadership is
unaware of. Appeal A was filed August 19 and billed nearly three months
later. Appeal B was filed September 24.
I discussed this situation with Eatonville Mayor Harold Parnell who
told me once the town knew there was a fee they had to send a bill. He also
told me he thought the fee was too high and suggested $15 or $20 dollars
would be more appropriate, and he didn’t think this fee should be
retroactive. The Van Eatons have paid half the bill. If the fee isn’t
retroactive the money should be refunded. Evidently this subject will also
be discussed at the November 25 council meeting. But discussions are subject
to change, so who can be sure?
A discussion about raising the appeal fees took place
at one of the special council budget meetings recently. The town is looking
for ways to generate funds. But raising appeal fees won’t do that for the
town. It’s not as if appeals rain down constantly. They are almost as rare
as hen’s teeth in Eatonville. Unless the town predicts more and more
appeals will be filed against them and that could only happen if there is a
solid reason.
From my perspective the only thing raising appeal fees will do is
ensure that it will be extremely difficult, if not impossible, to make any
future appeals. Forget it if you are on a fixed income. Some people are
referring to the present $250
charge as the “Keep Citizens Quiet” fee. I sincerely hope the council
does not see the appeal fee as either a moneymaker or a tool to discourage
citizen involvement in the growth planning process.
A probable lawsuit against the town and Litzenberger’s company
Carriage House may also be discussed at the November 25 council meeting.
Then again, maybe not. It’s all up to the council. isn’t it? At this
point in time the five elected members of the town council and an elected
mayor hold the future of your descendents in their hands. What will they
decide to do with your future? It’s up to you, isn’t it?
*See
Archives, "A River Runs Through It"
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"Pity
the poor kids who grow up in a big city. They miss the little things that
made growing up in a small town, ah, so wonderful."
~Tom Morrow
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