EatonvilleNews

During the regular Eatonville Town Council meeting Dec. 23, councilman Mike Gallagher prompted the following brief discussion, when he asked about a pending Van Eaton lawsuit against the Town of Eatonville and developer Rowland Litzenberger/Carriage House.

Gallagher: A public lawsuit has been filed. Do you have any more information on this?
Jamieson Van Eaton (Public Works Director at the time): Well, that’s something I don’t feel that it’s appropriate…
Gallagher: I know our attorney’s not here.
Van Eaton: Well, I can probably comment to the extent where it’s under review. You know, there’s a number of options at this point in time. And one of those options …well, I just as soon the attorney would weigh in. And certainly one of the things that the town will want to consider is… a couple of things. If we feel that we have every reason to represent the town in court, we’ll want to do that. We’ll also want to have some idea about what the expenses to the town might be. And so, my personal belief is that…well, I’d just as soon not comment.
Gallagher: Is the meeting in February a hearing to show cause?
Van Eaton: I believe so.
Gallagher: Is that the seventeenth?
Mayor Harold Parnell: The fourteenth.
Gallagher: Maybe our attorney could speak a little bit longer on it at the next meeting.
Mayor: I imagine he will.
Town Clerk Carrielynn Loffelmacher: He’s been given all the lawsuit information.
Mayor: We’re not trying to hide anything. It’s just with lawsuits sometimes you can talk too doggone much.
Gallagher: Absolutely.

This extremely brief, public discussion did not take place until Feb. 10, four days before the scheduled hearing. And then only because I raised the question and pointed out the above conversation. The council was asked what is happening with an extremely serious matter before the State Superior Court. This took place during a long and involved meeting concerning the very real water crisis in Eatonville. Town Attorney Bob Mack (who did attend this meeting) said the following:

Mack: What's happening is that a scheduling hearing has been scheduled for Jan. 14. The purpose of the hearing is basically to deal with any procedural issues, and for the judge to set a schedule for briefing of the issues, and then oral argument. And that will be done Friday, Jan. 13. There will be no substantive issues discussed at that meeting.
Walter: You mean February?
Mack: February 14th, I'm sorry.

     ENN Exclusive: The *Town of Eatonville and Rowland Litzenberger, Carriage House Inc. have been served with a "Petition for Judicial Review: (Land Use Petition Act)" regarding Liztenberger's request for a conditional use permit to build 100 storage units near the Mashell River. The project would be built upstream from the town's intake pipe. The site, off Center St. E. on the Eatonville Cut Off Rd., is on a "critical aquifer recharge area" and is "approximately 600 feet from the Town's new water source wellhead." The proposed project is "within a mapped aquifer recharge area; the sole recharge area for the Town's public water system."
     On behalf of Eatonville residents Pat and Edwinna Van Eaton, the petition was filed Monday, Dec. 16, 2002 with the Superior Court of Washington by attorneys Carolyn Lake and William Wright with the Goodstein Law Group in Tacoma. There is also a "Note for Motion Docket setting the initial hearing for Friday, February 14, 2003 at 9:00 a.m." The Van Eatons are asking that state, county and town laws be enforced and for "reasonable attorney fees..." According to Edwinna Van Eaton they are "not" asking for punitive monies.
      After the town council's public hearing on the second appeal filed by the Van Eatons there was a 21-day deadline period to appeal the council's decision. That appeal goes to the State Superior Court. The 21-day deadline ended Dec. 16, 2002. In a letter dated Dec. 16, 2002 the town approved Litzenberger's application of a conditional use permit for "construction of a 100 Unit Mini Warehouse Storage Building." (For a history of the Van Eatons' two appeals concerning this project, please see Archives - "A River Runs Through It.")

*Note: Below is the complete petition. Emphasis added by ENN. Although the names Roy and Karen Swanson appear on the petition, they are mentioned only as the site land owners. Chuck McTee is also listed as a Party of Record. This simply means he is supposed to be kept informed of all activity concerning the storage unit project.

Petitioners Van Eaton, pursuant to RCW 36.70C.005 et seq, by and through its attorneys, Carolyn A. Lake and William F. Wright of the Goodstein Law Group PLLC, hereby petitions the Pierce County Superior Court for review of the Eatonville Town Council’s Decision upholding a Conditional Use Permit and Determination of Non Significance for parcels 04-16-24-2-010 and 04-16-13-3-026 for Construction of a 100-Unit Mini Warehouse Storage Facility.

Carolyn A. Lake, William F. Wright
Goodstein Law Group PLLC
625 Commerce St., Ste 340
Tacoma, WA 98402
(253) 779-4000

A. Respondent.

B. Parties of Record.

Petitioners appeal the Town’s approval for development of a 100 Unit Mini
Warehouse Storage Facility. The Developer submitted his application for Conditional Use Permit [CUP] on July 24, 2002, which lacked the required SEPA [State Environmental Policy Act] checklist. When the Developer later submitted the Development’s SEPA checklist on July 30, 2002, the Mayor, acting as SEPA official, issued a Determination of Non Significance [DNS] that same day. The Petitioners timely appealed. The Town Planning Commission hearing on this project was held on September 16, 2002. Although the Town’s notice for the hearing indicated the hearing was to accept public comment on the Conditional Use Permit, the Commission also considered the Petitioner’s DNS Appeal at that time. Petitioners had not received notice that their appeal was to be considered at that meeting. By decision dated the same date as the “appeal” hearing, the Mayor issued a second DNS, and the Planning Commission approved the CUP (1). The Petitioners timely appealed to the Town Council. The Town Council’s appeal hearing was held on November 25, 2002, and the Council’s decision approving the development and denying Petitioners’ appeal was transmitted to the Developer by letter dated December 2, 2002. As a result, Petitioners file this Land Use Petition Act Appeal.

Copies of the Town’s Approval Letter and the Planning Commission Decisions are attached hereto as Exhibits A-D (cumulatively: “the Land Use Decision”), and by reference made part of this Petition.

D. Jurisdiction and Venue.

The Court has jurisdiction pursuant to RCW [Revised Code of Washington] 36.70C.010 et seq. Venue is proper in Pierce County based on chapter 4.12 RCW. The Town Council’s decision is a “land use decision” as defined by RCW 36.70C.020(1), and is reviewable under the Land Use Petition Act. Additionally, under RCW 36.70C.060(2)(d) and other statutes, Petitioners have exhausted their administrative remedies to the extent required by law.

E. Standing.

Petitioners Pat and Edwina Van Eaton initiated the appeal of the CUP and SEPA DNS to the Town Council, which is the local jurisdiction quasi-judicial decision maker regarding the land use decision at issue. Eatonville Municipal Code (EMC) 18.09.030.F. Pursuant to RCW 36.70C.060, and other statutes, in this capacity, Petitioners have standing as a “person aggrieved or adversely affected by the Land Use Decision.” Under RCW 36.70C.060(2)(b) and other statutes, Petitioners are persons whose asserted interests are among those the local jurisdiction is required to consider when it makes a land use decision. Reversal of the Town Council’s decision in favor of Petitioners will substantially eliminate or redress the prejudice caused by the erroneous land use decision.

1. Site History.

The Developer’s proposed 100-Unit Mini Warehouse Storage site is located within a mapped aquifer recharge area (2); the sole recharge area for the Town’s public water system. The site is approximately 600 feet from the Town’s new water source wellhead. The site is in a Critical Area as defined by Eatonville Municipal Code (“EMC”) 15.20.070.A.2, Critical Aquifer Recharge Areas. The site is also located in the Town’s Wellhead Protection Area.

The Developer failed to identify the site as a critical aquifer recharge area, and submitted no formal soils reports or environmental data on the site. The Developer described soils on-site as gravel and sand, but failed to identify current drainage characteristics. These soil types are porous, and allow rapid infiltration of runoff and pollutants to the recharge area. The Department of Ecology identifies these soil types as indicating “high susceptibility” to pollutants (3). The Town failed to classify the aquifer recharge area as required under RCW 36.70A.050.

The EMC provides that “Storm water management and soil erosion and sediment control shall be addressed for each development in conformance with adopted stormwater management and erosion control policies.” EMC 18.09.010.B.1 (emphasis provided). The Town of Eatonville adopted and made part of its development code the Pierce County Stormwater Management and Site Development Manual (Stormwater Manual). EMC 16.54.020.

The Eatonville Municipal Code [EMC] provides specific protections for critical areas including this aquifer recharge area. EMC 16.54.010 includes provisions to:

             B. Minimize water quality degradation and sedimentation in streams,
             ponds, lakes, wetlands, and other water bodies;
             C. Maintain and protect groundwater resources;
             D. Minimize adverse impacts of alterations of ground and surface water
             quantities, locations, and flow patterns;

              * * *

F. Preserve and enhance the suitability of waters for contact recreation, fishing,
and other beneficial uses;

H. Provide a means of regulating clearing and grading of private and public land,
to control water quality impacts, in order to protect public health and safety;

J. Protect the health, safety, and welfare of the citizens of the town of Eatonville.

The EMC requires preparation of a “permanent stormwater quality control (PSQC) plan,” which includes permanent Best Management Practices for the control of pollution from stormwater runoff after construction and/or land disturbing activity has been completed. EMC 16.54.030.Q, 16.54.050.E.1; Stormwater Manual at chapter 6. The Town failed to require the Development to comply with these adopted standards.

The Town also failed to apply WAC [Washington Administrative Code] 170-200-030, 040, which establishes the state Antidegredation policy, mandating protection of groundwater quality pursuant to chapter 90.48 RCW and chapter 90.54 RCW.

2. Application History.

The Developer filed his application for Conditional Use Permit on July 24, 2002. The Developer’s application consisted of a short narrative description of his proposal, a hand-drawn sketch of the site and proposed buildings, and a hand-altered copy of a portion of the FEMA Flood Insurance Rate Map. The original application failed to include a SEPA checklist. A week later, and only at the request of the Planning Director [Public Works Director], the Developer submitted a SEPA checklist on July 30, 2002.

3. DNS.

On July 30, 2002, the same day the SEPA checklist was submitted, the Town issued a SEPA DNS [Determination of Non Significance]. The SEPA responsible official’s Findings of Fact stated that the development will add approximately 70,200 square feet of new impervious surface to the site, and that “a storm drainage system will be installed which reduces post-development peak runoff to a rate no higher than existing.” See SEPA findings 5 and 6. The DNS however adopted no conditions, cited no support for these “findings,” included no data establishing existing runoff rates, and identified no basis or design for a storm drainage system. Specifically, requirements for a storm drainage system and protection of the aquifer recharge area per the Town’s adopted code provisions were not made conditions of the DNS. Petitioners timely appealed the DNS on August 19, 2002.

4. September 16, 2002 Planning Commission
Meeting.

The Eatonville Planning Commission held a meeting on September 16, 2002. The Town’s public notice stated that the hearing was “requesting input on a request by Rowland Litzenberger, Carriage House, Inc for a Conditional Use Permit.” The Town or its public notice made no indication that a public hearing concerning appeal of the DNS would be considered at that hearing.

Despite the Town’s lack of public notice or notice to the Van Eatons regarding the DNS appeal, the Town Planning Commission opened the September 16 hearing with the DNS appeal. Petitioners Van Eaton appeared to comment on the CUP [Conditional Use Permit) as per the Town’s notice and were unprepared to address the SEPA DNS appeal. However, the Petitioners identified lack of proper protection for the aquifer recharge area and lack of stormwater management as major concerns. After the hearing, the Town issued a revised DNS rejecting the appeal and finding “Merit of issues of appeal adequately considered by public hearing process before the Planning Commission on September 16, 2002 (4)." The Town issued the Project’s DNS without conditions, and again failed to make findings on the existing runoff rates, and failed to apply the Town’s critical areas code and adopted stormwater manual.

The September 16, 2002 Planning Commission meeting also included public comment on the proposed CUP. The meeting resulted in the Commission’s motion to approve the Conditional Use Permit with modifications including requiring the addition of an oil/water separator, retention plan and maintenance schedule to the stormwater system. However, the Town again failed to attach as conditions the Town’s adopted Stormwater Manual and EMC critical areas requirements. The Commission failed to make a finding that the site is within the critical aquifer recharge area, failed to establish the existing drainage characteristics, and failed to consider the effects of the paved access road on the site’s drainage.

5. Appeal to Town Council.

The Petitioners timely appealed the Commission’s Decision to the Town Council. The Council held hearing on the appeal on November 25, 2002 at which the Developer and Petitioners Van Eatons appeared and presented testimony regarding the Town’s failure to consider its own code. Specifically, the Van Eatons’ presented evidence on the location of the critical aquifer recharge area, proximity to the Town’s new wellhead, references to DOE [Department of Ecology] and WAC water standards, and the Town’s adopted Stormwater Manual. The Van Eatons also presented well logs from the Town’s 1997 Water Comprehensive Plan showing soils types and aquifer depths proximate to the site. The evidence supports a finding that the Developer’s site is within a Critical Aquifer Recharge Area, and that the EMC [Eatonville Municipal Code], the adopted Stormwater Manual, and SEPA apply to the CUP and DNS.

The Eatonville Town Council failed to apply the EMC [Eatonville Municipal Code] to the evidence presented at the appeal, and instead approved and adopted the Planning Commission’s Findings and Conclusions at the Council Meeting held November 25, 2002. By letter dated December 2, 2002, the Director of Public Works issued an approval letter clarifying the original decision. The notice however was sent solely to the Developer, and various Town Officials. The Town once again failed to notify the Petitioners of the Town’s decision on their appeal.

Upon Petitioner’s subsequent Public Records Request, the Town identified the December 2, 2002 letter as the final permit. This Land Use Petition appeals the Town’s decision.

G. Concise Statement of Errors Committed.

1. The Town engaged in unlawful procedure and/or failed to follow a prescribed process in the course of the Land Use Decision, and the Towns unlawful procedure and/or defect on process was not harmless. RCW 36.70C.130(a).

2. The Land Use Decision is an erroneous interpretation of the law. In this regard, the Town Council and the Planning Commission’s interpretation of local ordinances is not entitled to any deference, as those ordinances are clear and unambiguous. RCW 36.70C.130(b).

3. The Land Use Decision is not supported by evidence that is substantial when reviewed in light of the whole record. RCW 36.70C.130(c).

4. The Land Use Decision is a clearly erroneous application of the law to the facts. RCW 36.70C.130(d).
5. The Land Use Decision was made without proper notice and constitutes unlawful procedural conduct. In this regard, the Town’s procedural errors are not harmless, instead resulting in grave harm to the Petitioners. RCW 36.70C.130(a). The Town Council’s adoption and incorporation of the Project's SEPA DNS conditions was erroneous based on the Town of Eatonville’s failure to follow its own SEPA procedure. The procedural error was prejudicial to the Petitioners, and granting the appeal will remedy that prejudice.

substantial evidence within the context of the whole record; and/or the Council’s decision

is a clearly erroneous application of the law to the facts. RCW 36.70C.130(c).

7. The Town Council’s adoption and incorporation of the Project's SEPA DNS conditions was erroneous based on the actions or failure of the SEPA Official to attach conditions which are based on the Town Code’s list of SEPA substantive authority. RCW 36.70C.130(c), (d).

8. The Town Council erred in adopting the DNS, which was an erroneous interpretation of the law, was unsupported by facts in the record, and/or was an erroneous application of the law to the facts. RCW 36.70C.130(c), (d).

9. The site is in a Critical Area as defined by EMC 15.20.070.A.2, Critical Aquifer Recharge Areas. The Land Use Decision fails to consider and apply the provisions of this section of the EMC to the application and is otherwise an erroneous interpretation of the law, is unsupported by the facts in the record and is an erroneous application of the law to the facts. RCW 36.70C.130(c), (d).

10. The Town failed to consider and apply the requirements of EMC chapter 16.54. As such the Land Use Decision is an erroneous interpretation of the law, is unsupported by facts in the record, and is an improper application of the law to the facts. RCW 36.70C.130(c), (d).

11. The Town Council’s decision fails to apply the provisions of the Town’s adopted Stormwater Manual to this application, or otherwise adequately address stormwater management. As such this Land Use Decision is an erroneous interpretation of the law, is unsupported by facts in the record, and is an improper application of the law to the facts. RCW 36.70C.130(c),(d).

12. The Town’s failure to give notice to Petitioners’ violates procedural due process rights as guaranteed in the Washington Constitution, Art. 1, section 3. RCW 36.70C.130(f).

H. Conclusion and Request for Relief.

The Town of Eatonville failed to follow proper procedure and denied the Petitioners’ rights to notice. The Developer failed to address SEPA in his original application. The Town issued its DNS on the same day that the Developer submitted his SEPA checklist, but failed to address the protection of the critical aquifer recharge area, or apply its adopted Stormwater Manual.

After Petitioners’ appeal, the Town failed to provide Petitioners notice of the appeal hearing, and failed to correct any of its previous errors. In is final approval of the Project’s Conditional Use Permit and the SEPA DNS, the Town failed again to properly apply its adopted critical areas ordinances and Stormwater Manual. Finally, the Town failed to give notice of its final decision to the Petitioners, instead mailing notice only to the Developer. Petitioners hereby request that the Court reverse and remand the Land Use Decision to the Town.

Specifically, the Petitioners request that the DNS be rescinded and reconsidered, that this Court require application of the relevant portions of the EMC related to Critical Areas and stormwater management, and that the CUP be conditioned on the specific factors required by law.

Petitioners also request that their reasonable attorney fees and costs and any other relief the court deems just and reasonable under the circumstances.

By
Carolyn A. Lake, WSBA #13980
William F. Wright, WSBA #31063
Attorneys for Petitioners Van Eaton

[1] Copies of the Planning Commission’s Decision, DNS and Revised DNS are attached hereto ax Exhibits B, C and D respectively.

[2] The two parcels involved in this permit are Pierce County Assessor’s # 04-16-24-2-010 and 04-16-13-3-026, and the site is commonly referred to as 675 Center St., Eatonville, Washington.

[3] Dept. of Ecology “Critical Aquifer Recharge Area Ordinance Development Guidelines,” submitted as Exhibit 5 to the Petitioner’s Appeal to the Town Council.

[4] Revised DNS attached as Exhibit D.

A. Respondent.

B. Parties of Record.

D. Jurisdiction and Venue.

E. Standing.

1. Site History.

2. Application History.

3. DNS.

4. September 16, 2002 Planning Commission
Meeting.

5. Appeal to Town Council.

G. Concise Statement of Errors Committed.

1. The Town engaged in unlawful procedure and/or failed to follow a prescribed process in the course of the Land Use Decision, and the Towns unlawful procedure and/or defect on process was not harmless. RCW 36.70C.130(a).

2. The Land Use Decision is an erroneous interpretation of the law. In this regard, the Town Council and the Planning Commission’s interpretation of local ordinances is not entitled to any deference, as those ordinances are clear and unambiguous. RCW 36.70C.130(b).

3. The Land Use Decision is not supported by evidence that is substantial when reviewed in light of the whole record. RCW 36.70C.130(c).

7. The Town Council’s adoption and incorporation of the Project's SEPA DNS conditions was erroneous based on the actions or failure of the SEPA Official to attach conditions which are based on the Town Code’s list of SEPA substantive authority. RCW 36.70C.130(c), (d).

8. The Town Council erred in adopting the DNS, which was an erroneous interpretation of the law, was unsupported by facts in the record, and/or was an erroneous application of the law to the facts. RCW 36.70C.130(c), (d).

10. The Town failed to consider and apply the requirements of EMC chapter 16.54. As such the Land Use Decision is an erroneous interpretation of the law, is unsupported by facts in the record, and is an improper application of the law to the facts. RCW 36.70C.130(c), (d).

12. The Town’s failure to give notice to Petitioners’ violates procedural due process rights as guaranteed in the Washington Constitution, Art. 1, section 3. RCW 36.70C.130(f).

H. Conclusion and Request for Relief.

A. Respondent.

B. Parties of Record.

D. Jurisdiction and Venue.

E. Standing.

1. Site History.

2. Application History.

3. DNS.

4. September 16, 2002 Planning Commission Meeting.

5. Appeal to Town Council.

G. Concise Statement of Errors Committed.

1. The Town engaged in unlawful procedure and/or failed to follow a prescribed process in the course of the Land Use Decision, and the Towns unlawful procedure and/or defect on process was not harmless. RCW 36.70C.130(a).

2. The Land Use Decision is an erroneous interpretation of the law. In this regard, the Town Council and the Planning Commission’s interpretation of local ordinances is not entitled to any deference, as those ordinances are clear and unambiguous. RCW 36.70C.130(b).

3. The Land Use Decision is not supported by evidence that is substantial when reviewed in light of the whole record. RCW 36.70C.130(c).

7. The Town Council’s adoption and incorporation of the Project's SEPA DNS conditions was erroneous based on the actions or failure of the SEPA Official to attach conditions which are based on the Town Code’s list of SEPA substantive authority. RCW 36.70C.130(c), (d).

8. The Town Council erred in adopting the DNS, which was an erroneous interpretation of the law, was unsupported by facts in the record, and/or was an erroneous application of the law to the facts. RCW 36.70C.130(c), (d).

10. The Town failed to consider and apply the requirements of EMC chapter 16.54. As such the Land Use Decision is an erroneous interpretation of the law, is unsupported by facts in the record, and is an improper application of the law to the facts. RCW 36.70C.130(c), (d).

12. The Town’s failure to give notice to Petitioners’ violates procedural due process rights as guaranteed in the Washington Constitution, Art. 1, section 3. RCW 36.70C.130(f).

H. Conclusion and Request for Relief.

4. September 16, 2002 Planning Commission
Meeting.