Commissioner Hearing 8/24/09. We are slow in reporting on the Illahee Community Club's appeal hearing before the County Commissioners that took place the evening of August 24, 2009. There were approximately 30 Illahee residents in attendance, with some of them wearing the bright orange Illahee tee shirts that were passed out during Illahee Day's cleanup event. Below and attached are photos taken at hearing.
Attorney's Briefs and Arguments. We felt booth attorney's did a good job in presenting their clients cases. It was interesting that the developer's attorney highlighted an exhibit that came in after the hearing, while the record was being held open, as the basis for possible new mitigation, which the community felt was a new argument since they never got an opportunity to respond to it.
New Argument Raised at Hearing. What we and the community found most disturbing at the hearing was that a new argument was allowed to be raised by the developer at a closed record hearing. Attorney for the developer, Ron Templeton, offered up the new mitigation possibility during his presentation time, and followed it up with an email to the Commissioners the following day.
Community's Response to New Argument. We received a copy of the Community's response to the new argument, which has in it the mitigation proposal presented by Mr. Templeton. The Community's response brief reads as follows:
At the hearing on the matter noted above on Monday, August 24, 2009, the Applicant Timber’s Edge (“Applicant”) introduced a new argument proposing new mitigation measures for the project. The purpose of this brief is to provide clarification regarding process for the Applicant’s new argument, and does not address substantive issues addressed at the hearing.
At the hearing the Applicant argued that the project should be conditioned by two new mitigation conditions:
1. The Applicant will design and install a stormwater system that will result in no material reductions in base flow of Illahee Creek as a result of site development. This will be accomplished through the maintenance of groundwater recharge contributions from the project substantially equivalent to pre-development levels.
2. In addition, to the extent reasonably feasible without jeopardizing the stability of the slopes abutting Illahee Creek, the Applicant will infiltrate as much groundwater as is reasonably possible. Thus, if safely and reasonably feasible, the Applicant will infiltrate 100% of the project groundwaters, thereby completely eliminating the need for the stormwater outfall on the Massano Property.
This language was proposed for the first time during oral argument before the Commissioners, and was submitted in writing the day after the hearing via email with the following additional comment from the Applicant’s counsel: “I am attaching the Revised Conditions the Applicant proposes to insure there are no adverse impacts to the Illahee Creek base flows.”
This argument was raised for the first time on appeal to the Commissioners, and is therefore not part of the record before the Commissioners for review. Information not in the record is not allowed as part of the Commissioners’ hearing. KCC 21.04.120 (E). The Board of County Commissioners is limited to hearing the appeal“on the established record.” Id. The mitigation proposed by the Applicant is not a part of the established record and therefore should not be considered by the Commissioners.
New arguments raised on appeal are generally not considered at the appellate level. Boehm v. City of Vancouver, 111 Wn.App. 711, 722, 47 P.3d 137 (2002) citing King County v. Wash. State Boundary Review Bd., 122 Wn.2d 648, 670, 860 P.2d 1024 (1993). For an issue to be properly raised on appeal, it must have been raised before the Hearing Examiner. The purpose of this is to avoid “hearing by surprise,” by having new arguments introduced during hearings that the opposing party has not had an opportunity to address or adequately argue. This is especially to be avoided in a complex case such as this, where any new proposal will undoubtedly impact other aspects of the project and other conditions already established for the project.
In addition, past practice by the Commissioners in a case where new mitigation has been proposed by an applicant has been to remand the project back to the Hearing Examiner. As indicated by Commissioner Bauer at the hearing on this matter, a recent case before the Commissioners involving a Montessori school was remanded to the Hearing Examiner to address proposals from the applicant in that case to mitigate some of that project’s impacts. Remanding a question like this to the Hearing Examiner is appropriate, because it allows time for proper analysis of the proposal that is not possible in the forum of a Commissioner appeal. For instance, in a remand the Hearing Examiner could benefit from expert comments submitted by the appellant and not just unilateral input from the applicant.
Due to the complexity of this case (over 400 exhibits), and the reasons stated above, if the Commissioners believe that the mitigation identified in the MDNS could be improved to protect Illahee Creek base flows, this matter should be remanded to the Hearing Examiner so that proper mitigation, review, and analysis can occur.
Decision Only on 9/28/09. We haven't heard whether a response brief by the developer's attorney followed the above brief. (Sometimes it seems the only winners in these situations are the lawyers.) The Commissioners will vote on the Community's appeal at the September 28th meeting.
Update on Community Proposal Responses. The Illahee Community Club hand distributed to most Illahee residents, a letter to the developer and the county that laid out a compromise the community would support. The letter provided an opportunity for residents to respond as to how they felt about the compromise. The results so far are nearly all agreeing with the compromise, with one not wanting any development at all. The ICC wants to remind people to keep responding to the proposal by sending the tear off portion to the ICC address or that they can also do so via email (to this email or info@illaheecommunity.com).
Jim Aho
