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Home My WebLink AboutHEX Final Decision - Puget Sound Energize Easide conditional Use Permit Email - 2-12-2020 Cynthia Moya From: Jason Seth Sent: Wednesday, February 12, 2020 4:25 PM To: Leslie Clark; Cynthia Moya Cc: Jill Ding Subject: RE: FW: HEX Final Decision - Puget Sound Energize Eastside Conditional Use Permit I've sent your question to Phil. -Jason From: Leslie Clark<LClark@Rentonwa.gov> Sent:Wednesday, February 12, 2020 3:10 PM To:Jason Seth <JSeth@Rentonwa.gov>; Cynthia Moya<CMoya@Rentonwa.gov> Cc:Jill Ding<JDing@Rentonwa.gov> Subject: FW: FW: HEX Final Decision- Puget Sound Energize Eastside Conditional Use Permit Hi,Jason and Cindy— It seems to me that the full exchange, below, between Mr.Aramburu and Mr. Olbrechts should be distributed to the parties of record. Would you please ask Mr.Olbrechts about his view on that? Thank you, Leslie LESUE CLARK I Senior Assistant City Attorney City of Renton 11055 S. Grady Way I Renton WA 98057 LClark@Rentonwa.gov I (425)430-6482 From:Jill Ding<JDing@Rentonwa.gov> Sent:Wednesday, February 12, 2020 11:11 AM To: Leslie Clark<LClark@Rentonwa.gov> Subject: FW: FW: HEX Final Decision - Puget Sound Energize Eastside Conditional Use Permit FYI Jill Ding Senior Planner City of Renton Community and Economic Development 6th floor 1055 S Grady Way Renton,WA 98057 425-430-6598 iding@rentonwa.gov 1 From: Phil Olbrechts<olbrechtslaw@gmail.com> Sent:Wednesday, February 12, 2020 11:10 AM To:Jason Seth <JSeth@Rentonwa.gov>; Rick Aramburu <rick@aramburu-eustis.com> Cc:Jill Ding<JDing@Rentonwa.gov>; Vanessa Dolbee<VDolbee@Rentonwa.gov>;Jennifer T. Henning <Jhenning@Rentonwa.gov>;Sandi Weir<SWeir@Rentonwa.gov> Subject: Re: FW: HEX Final Decision -Puget Sound Energize Eastside Conditional Use Permit The appeal and reconsideration deadlines are being extended to February 28, 2020 as the Final Decision was not mailed out on February 7, 2020 as I had understood. For purposes of simplicity, the Final Decision did not address appeal deadlines when motions of reconsideration are filed. As noted by Mr. Aramburu's email, LUPA and Mellish requires that when a motion for reconsideration is filed that a new judicial appeal attaches. Technically, however,Mellish and LUPA only apply to judicial appeals, not administrative appeals. The Energirzer decision is still subject to administrative appeal. However, the principles underlying the Mellish decision apply equally well to administrative appeals. If a motion for reconsideration is filed, my Final Decision Upon Reconsideration will provide for a new 14 day appeal period to the City Council. However, it must be recognized that the City Council has final decision making authority on what it considers to be the timeliness of appeal. On that issue, the City Counil is likely to rely upon advice from the City Attorney. If the City Attorney disagrees with my application of Mellish, it would help to have that position upfront. Specific deadlines for reconsideration and appeal were set in the Decision in order to facilitate the reconsideration process. In the absence of setting specific deadlines in conjunction with reference to a web address, staff would have had to mail out the motions for reconsideration to all the parties of record along with a reconsideration order setting response and reply deadlines. As to the Footnote No. 1 reference to the "date of the decision", it is the date of issuance, not decision that sets appeal and reconsideration deadlines. I emailed my Final Decision the evening of February 6, 2020 with the misunderstanding that the decision would be mailed February 7, 2020. RMC 4-8-110C2 has the 14 day appeal period commence 3 days after mailing,which under court rules is considered the date of issuance and according to my conserveative calculation the appeal/recon deadline for a decision mailed February 7, 2020 was February 25, 2020. The Decision was actually not mailed out until yesterday, Febrary 11, 2020. Consequently, the appeal/recon deadlines should be 14 days from February 14, 2020, which would be February 28, 2020. The City Clerk is asked to mail out a follow up letter to those receiving mailed copies of the decision that states "Please be advised that the appeal and reconsideration deadlines for the Puget Sound Energize Eastside, LUA18-000055, CU-H, SME, has been extended from February 25, 2020 to February 28, 2020." On Wed, Feb 12, 2020 at 8:35 AM Jason Seth <JSeth@rentonwa.gov>wrote: This is the email from CENSE I mentioned in my last email. I will be informing them that I forwarded their email to you. -Jason From: Rick Aramburu <rick@aramburu-eustis.com> Sent: Tuesday, February 11, 2020 5:31 PM To: Sandi Weir<SWeir@Rentonwa.gov>; Jill Ding<JDing@Rentonwa.gov>; Jason Seth <JS eth @ Rentonw a.gov> Subject: RE: HEX Final Decision -Puget Sound Energize Eastside Conditional Use Permit 2 Dear Examiner Olbrechts; This office represents CENSE one of the participants in the decision described above. We have reviewed the Final Decision and have two requests for clarification that require timely resolution. 1. APPEAL AND RECONSIDERATION TIMETABLES. Footnote 1, page 1 to the Final decision states: The February 6,2010 Final Decision was revised to correct a scrivener's error,removing Condition No.3, which had been replaced by Condition No. 10 of that decision (now Condition No.9 in this Decision). Since retention of Condition No. 3 was clearly an unintentional error as part of the response to the Applicant's request to modify Condition No. 3,the date of this Decision for purposes of appeal and reconsideration still remains as February 6,2020.Condition No. 1 has also been slightly modified to be consistent with the elimination of former Condition No. 3. • However, the Decision letter and Final Decision at pages 39 and 40 indicated the deadline for appeal and reconsideration is 14 days from the date of the decision and then states the deadline is February 25, 2020. Over the past two days we have asked the City to provide us a copy of the decision but were told yesterday (February 10) at 11:27 am that: "The.decision is not yet available. Once it is available all parties of record will receive a copy." While it appears that some parties had advance notice of the decision, CENSE did not receive such notice. We request that you clarify that the date for appeal and reconsideration is February 25 as stated at page 39 and 40 of the Final Decision. i 2. APPEAL AND RECONSIDERATION. As noted above, the Final Decision states the deadline for both appeal and reconsideration is February 25. However, the Final Decision does not address whether the appeal deadline will be 14 days from the date of a decision on a timely filed motion for reconsideration. In our review, it does not appear that this ' issue is covered by any code provision or Hearing Examiner rule. Given the circumstances, we believe that the deadline for appeal should be 14 days after a decision on the properly filed reconsideration motion. This is the rule under LUPA (RCW 36.70C.020(2)): Where a local jurisdiction allows or requires a motion for reconsideration to the highest level • of authority making the determination, and a timely motion for reconsideration has been filed, 3 the land use decision occurs on the date a decision is entered on the motion for reconsideration, and not the date of the original decision for which the motion for reconsideration was filed. This is also the rule under caselaw in Mellish v. Frog Mountain Pet Care, 154 Wash.App. 395 (2010), which was the precedent for the foregoing amendment to LUPA. We also note that the Final Decision states: "the reconsideration process is intended to provide an avenue to question the reports of the technical experts in lieu of the cross- examination process.In this respect,City and Applicant experts are expected to provide a response to any motions for reconsideration filed on'pipeline safety." Page 2, Footnote 2. CENSE requests that you clarify your decision to confirm that an appeal to the Council may be filed within 14 days from the date of a decision on a timely filed motion for reconsideration. Thank you in advance for your clarification of the Final Decision. Law Offices of J. Richard Aramburu, PLLC New Address Effective February 1,2020 we will be in the Hoge Building: 705 Second Avenue, Suite 1300 Seattle, WA 98104 Telephone (206) 625-9515 Facsimile (206) 682-1376 Through January 31, 2020 we will be located at 720 3rd Ave, Ste 2000, Seattle WA 98104. • This message may be protected by the attorney-client and/or work product privilege. If you received this message in error please notify us and destroy the message.Thank you. From: Sandi Weir [mailto:SWeir(aRentonwa.gov] Sent:Tuesday, February 11, 2020 3:57 PM Subject: HEX Final Decision - Puget Sound Energize Eastside Conditional Use Permit • Parties of Record: 4 I have attached a letter regarding Hearing Examiner's Decision for the Puget Sound Energize Eastside Conditional Use Permit that is being mailed out today only to the Parties of Record that have not given us their email addresses. Here is the actual link to get to the electronic documents. If you have any questions or concerns, please feel free to call Jill Ding at 425-430-6598 or email at Jding@rentonwa.gov. Sandi Weir City Clerk Specialist 1 City Clerk's Office (425) 430-6510 5