HomeMy WebLinkAboutRe Renton - Quendall Homes (LUA-09-151)Staff,
This will be the last addition to the email string regarding the FEIS appeal. As requested before, please have five copies ready for the hearing should anyone need to see these emails
when I disclose these ex parte contacts with Mr. Nicholson.
Mr. Nicholson,
I would normally not further complicate the record of this case by further communications with you, but it appears that there is some major misunderstanding or miscommunication going
on and I want to take one last attempt at rectifying it. I wish I could just talk to you about this, but as the decision maker my ability to communicate with you is very limited due
to the reasons identified in my first email to you. Ultimately, however, this will have to be our last communication regarding your appeal unless you plan on making some motion that
you entered into the stipulated dismissal order due to some form of fraud or misrepresentation. Any other further information you want me to consider should be sent exclusively to
the planning staff as comment on the application.
As I identified in my first email to you, I don't become involved in an appeal until it's time to consider whether a prehearing conference or email exchange is in order. This usually
occurs four to six weeks prior to the scheduled appeal date. In this case you would likely have received an email from me to all appeal parties inquiring whether the parties wanted
to resolve some prehearing procedural issues or otherwise desired a prehearing order outlining hearing procedures. A request for such a prehearing order is usually initiated by one
of the appeal parties, but I will often initiate that inquiry on my own if no one beats me to it.
I will also address any proposed orders or prehearing motions when they come in. Beyond this, planning and city clerk staff are responsible for processing an appeal. The role of City
staff and myself does not change because you've persuaded staff to send me your notice of appeal earlier than the completion of the staff report. I'm not sure what type of response
you were looking for from your appeal statement. If you just wanted an acknowledgement that your appeal had been filed, then staff would be responsible for that. If they don't issue
some sort of acknowledgment as a matter of course, I'm sure they would provide you with something upon request. If you had any questions about how the appeal would be processed or
scheduled, all you had to do was ask staff. If you disagreed with how staff was handling some prehearing procedural issue regarding your appeal, you were free to either file a motion
with myself ahead of time or to raise the issue at the hearing. If you had made a legally compelling argument that consolidation should not have occured during your appeal hearing,
I would not have had any problem segregating out your appeal (although for future reference, the SEPA rules requiring consolidation are fairly clear and I've yet to come across any
argument to the contrary).
If you are upset because I didn't read your appeal months prior to the appeal hearing, there is no reason to be. There's nothing I could have done with any knowledge I would have gained
from reading your appeal months in advance. Reading appeal statements too far in advance (especially those exceeding the more typical 10 pages and under) can be a tremendous waste
of time since the appeal can easily be narrowed or even withdrawn over time and also because I will have to re-read everything once the hearing date is close. Excluding any prehearing
motions or orders that may be presented to me, I only need to know about the details of your appeal in time for the hearing on your appeal. For the stipulated motion to dismiss, I
just needed documentation establishing what hearing parties should be included in the order, and I got that information when you pointed out that your notice of appeal had been emailed
to me months earlier. If you had not agreed to have your appeal dismissed, I would have read your entire notice of appeal prior to the hearing and I would have gone through it with
a fine toothed comb after the hearing as I prepared my decision. It's entirely possible that you would not have liked the result of my decision on your appeal, but I can assure you
that you would not have been able to sincerely assert that your issues had not been thoroughly reviewed and addressed.
Once the hearing on Quendall is over and the appeal period has expired I will be happy to discuss this with you further (assuming the discussion doesn't relate to some other pending
appeal or application). Also, if it wasn't clear to staff before, it is appropriate for staff to recommend to the parties of an appeal that they request some sort of prehearing conference
or email exchange from me if the appeal parties have procedural questions about the conduct of a hearing. For appeal parties represented by attorneys (which has usually been the case),
there isn't much confusion about how to participate. For unrepresented citizens, however, I'm sure there's room for improvement as to how to make hearing participants comfortable with
the process. Land use appeals in Renton are rare, especially when they involve unrepresented parties.
On Mon, Feb 22, 2016 at 1:48 PM, brad nicholson <brad827@hotmail.com> wrote:
your Honor,
Well I want to apologize but well it took 5 months to get a response? the appeal notice i.e "The facts are dispositive" while it took 24 hours to respond to the PRP's
I am just wondering do you need to have the EPA sign off on the case too? It could be Cami Grandinetti.
Respectfully
Brad Nicholson
________________________________
From: LWarren@Rentonwa.gov
To: olbrechtslaw@gmail.com; brad827@hotmail.com; CMoya@Rentonwa.gov; VDolbee@Rentonwa.gov; JSeth@Rentonwa.gov; cmathewson@centurypacificlp.com; ann.gygi@hcmp.com
Subject: RE: Renton - Quendall Homes (LUA-09-151)
Date: Mon, 22 Feb 2016 16:38:55 +0000
Mr. Olbrechts, the city has no objection to the stipulated order. If you have any questions, please let me know.
From: Phil Olbrechts [mailto:olbrechtslaw@gmail.com]
Sent: Monday, February 22, 2016 7:44 AM
To: brad nicholson; Cynthia Moya; Vanessa Dolbee; Larry Warren; Jason Seth; cmathewson@centurypacificlp.com; ann.gygi@hcmp.com
Subject: Re: Renton - Quendall Homes (LUA-09-151)
All Appellants,
The proposed stipulated order is missing one of the parties to the appeal. As outlined in RMC 4-8-110(E)(7), the City is a party to the appeal. I will sign the stipulated order if
I get email confirmation from the City that it has no objection to the stipulated order.
Please note Mr. Nicholson has sent me another email, included in this email string, that was not cc'd to the other parties to the appeal. As before, I request that staff include this
updated email string as one of their hearing exhibits. They should also have five copies of this email string available at the hearing so that I can disclose the ex parte communications
with Mr. Nicholson and give the opportunity for the public to review and respond to those communications. In response to Mr. Nicholson's second email, as noted in my last email to
him, I received a copy of his notice of appeal (all 200+ pages) as an email attachment from the City Clerk's Office last September. Other than a response from staff as to whether they
have an objection to the stipulated order, I ask that I receive no further communications from the parties on the appeal regarding the appeal. For the reasons outlined in my last email
to Mr. Nichols, it is important that pre-hearing ex parte communications be limited as much as possible.
On Sun, Feb 21, 2016 at 8:49 PM, brad nicholson <brad827@hotmail.com> wrote:
Your Honor,
I can recall with crystal clarity. 5 weeks after filing the appeal, I called the City Clerk and requested information about why I received no acknowledgement of its receipt or correspondence
whatsoever. It would appear that I have been involved in as many appeals in Renton as you have and in the past, the normal process has been to give a short explanation of what is going
on. At first the Clerk told me that he had posted it on the web and that I would need to talk to Staff about it. I had complained to him that I had spent considerable time and had addressed
the appeal to you and not to staff. My comment letter was addressed to staff but my appeal notice along with $250.00 was addressed to you according to staff instructions. The Clerk
then assured me in no uncertain terms that the appeal document went directly to you and that you had a copy of it in your possession. I complained to him that I paid the fee for the
appeal to go to you and not to staff. Thus I am surprised that you would indicate that you have no documents. I am also surprised that you did not get it and it was never in your possession.
I am just saying that I had also been quite disturbed that staff had been the ones to decide on the appeal consolidation even though I think you are correct in presuming that it may
have been generally known to be the case. But I had not understood that they had jurisdiction to decide issues of Law in a pending appeal.
Respectfully
Brad Nicholson
________________________________
Date: Sun, 21 Feb 2016 06:07:51 -0800
Subject: Re: Renton - Quendall Homes (LUA-09-151)
From: olbrechtslaw@gmail.com
To: brad827@hotmail.com; CMoya@rentonwa.gov; VDolbee@rentonwa.gov <mailto:VDolbee@rentonwa.gov> ; LWarren@rentonwa.gov; JSeth@rentonwa.gov; cmathewson@centurypacificlp.com <mailto:cmathewson@century
pacificlp.com> ; ann.gygi@hcmp.com <mailto:ann.gygi@hcmp.com>
Staff,
Please include this email string in the exhibits to the staff report on the Quendall Homes application.
Mr. Nicholson,
Thank you for the clarification of Quendall Homes. I will likely send out a signed order tomorrow once I've had an opportunity to review the filed notice of appeal.
From your assertions that I may have "forgotten" information that you apparently believe I at one point knew or should have known about your project, it appears you might have some
misunderstanding about my level of involvement in your case prior to hearing. By a combination of law and necessity, I'm essentially required to know as little about your project as
possible until staff has completed its staff report and list of proposed hearing exhibits. By state statute and numerous court opinions I am not allowed to engage in conversations
with staff, the applicant or any hearing party about the substantive merits of your case outside the hearing process. Because of these legal requirements, you can be assured that all
of my knowledge about your case is strictly limited to the testimony presented during the project hearing and the exhibits admitted into evidence. This puts you on equal footing with
all other hearing participants and ensures that you have the opportunity to address any evidence presented to me that you may believe to be inaccurate or incomplete.
Up until today my knowledge of your case had been limited to knowing it's big, controversial and involves a superfund site. The only reason I knew this much is because every few weeks
I ask the planning manager if anything big is coming up, so that I may plan my schedule and workload in advance. Land use appeals (as opposed to applications) sometimes involve a little
more advance information due to the necessity to sometimes hold prehearing conferences. Prehearing conferences are prehearing meetings or email exchanges with appeal hearing participants
designed to address procedural issues in advance in order to provide for a more efficient appeal hearing. Issues usually held at prehearing conferences typically include setting limits
on the time for testimony, requiring the parties to identify witnesses and exhibits, and setting deadlines for prehearing motions and briefing. If no party has specifically requested
a prehearing conference, I will typically ask for a copy of the notice of appeal four to six weeks in advance of a scheduled appeal hearing to determine whether a prehearing conference
would be useful.
As best as I can recall, Renton has only had a couple land use appeal hearings in the last five years that I've worked with the city. Renton is unique amongst my thirteen hearing examiner
clients in that it apparently regularly sends me a copy of the appeal statement before I ask for it and before the staff report is complete. There's nothing wrong with that practice,
since it's fairly clear that the appeal statement will be included in the staff's exhibit list once the staff report is completed. However, it's not going to attract my notice until
I get close to the appeal hearing and start considering the merits of a prehearing conference. From your email response yesterday I was able to find an email from the City Clerk's
office from last September that contained an attachment of your appeal statement. That should give me the information I need to ensure that the stipulated order includes all necessary
parties.
Your email also asserts that I've forgotten about a consolidation order. It's fairly undisputed that state law requires an appeal of FEIS adequacy to be consolidated with the hearing
on its underlying permit application. I would be surprised if staff found it necessary to ask me about consolidation. Also, as previously discussed, the circumstances under which
staff can talk to me about a case are very limited outside the hearing process. I don't recall making any comments to staff regarding consolidation but if I did you are correct that
I have forgotten about it.
On Sun, Feb 21, 2016 at 12:30 AM, brad nicholson <brad827@hotmail.com> wrote:
Your Honor,
You may be looking for "Quendall Homes" according the previous email. The documents concern "Quendall Terminals" EIS decision which you decided to consolidate with the Master plan
hearing around 5 months ago. Vanessa Dolbee informed me that is was because of "State Law" You may have forgotten about it but the appeal documents were sent directly to you from the
clerk Jason Seth. You may have also forgotten it was an appeal that was 288 pages against the adequacy of review where you be approving the Master Plan for around 700 houses next to
the Seahawks training facility on the superfund site that will undergo cleanup after you take your actions?
Respectfully,
Brad Nicholson
________________________________
Date: Sat, 20 Feb 2016 08:32:57 -0800
Subject: Re: Renton - Quendall Homes (LUA-09-151)
From: olbrechtslaw@gmail.com
To: CMoya@rentonwa.gov
CC: VDolbee@rentonwa.gov; LWarren@rentonwa.gov; JSeth@rentonwa.gov <mailto:JSeth@rentonwa.gov> ; cmathewson@centurypacificlp.com <mailto:cmathewson@centurypacificlp.com> ; brad827@hotmail.com
<mailto:brad827@hotmail.com> ; ann.gygi@hcmp.com
Please confirm that all parties to the SEPA appeal have signed the stipulated order to dismiss. I have no documentation on the appeal, so I have no knowledge of what parties are involved.
On Thu, Feb 18, 2016 at 4:34 PM, Cynthia Moya <CMoya@rentonwa.gov> wrote:
Mr. Olbrechts,
We have just received a Joint Stipulation & Proposed Order Dismissing Appeal in the Quendall Terminals FEIS & Mitigation Document, SEPA Appeal (File #LUA-09-151). The parties have
asked that you sign the attached document as soon as possible.
If you have any questions, please feel free to call Vanessa at 425-430-7314.
Thank you,
Cindy Moya, Records Management Specialist
City of Renton - Administrative Services/City Clerk Division
cmoya@rentonwa.gov
425-430-6513