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HomeMy WebLinkAboutHX01 ORDER Confirming Prehearing Conference 1 To: Parties of Record in the Consolidated Hearing Process for Rock Island Shellfish Shoreline Substantial Development Permit Application (SDP2024-00006) and Appeal of SEPA MDNS issued for such application Date: July 3, 2025 Re: Order Confirming Prehearing Conference, at 1:00 pm on Tuesday, July 8, 2025 In this consolidated hearing process to consider a shoreline permit application and an appeal of the SEPA threshold determination issued for such application, the appellant requested a prehearing conference, which has been set to occur this coming Tuesday. It is my understanding that all parties of record, or their designated representatives, have been notified of the prehearing conference via email. The prehearing conference will occur at 1:00 pm, on July 8th, using a hybrid format, where parties can participate in-person or using an online hearing platform coordinated by staff. The purpose of a prehearing conference is to address procedural and logistical matters so all parties have an opportunity to prepare for the hearing; to consider hearing dates or any calendar changes that should occur; deadlines for witness and evidentiary disclosures; motions, responses to same; possible briefing schedule; and the like. Since the prehearing conference was announced, the Examiner learned of concerns from some individuals that a notice for a prehearing conference might need to be published. Notices of prehearing conferences are provided via email, to all parties of record, and are not subject to publication requirements. The Examiner takes official notice of several matters in recent years where prehearing conferences were scheduled and conducted by the Examiner, all with notice to party representatives, but no published notice, as is commonly required for the actual public hearings regarding various applications or appeals. (Durgan appeal in 2022; Lomita Trust appeal in 2022; Pomona Woods, development application with SEPA appeal, in 2022, involving several prehearing conferences). None of these prior matters were ever challenged or remanded by a court of competent jurisdiction due to any procedural errors, including without limitation any alleged need to publish notice of prehearing conferences. The Hearing Examiner Rules of Procedure and County codes addressing notice issues have remained unchanged since early 2022. Since that time, the Examiner has consistently interpreted and applied notice rules and codes to require notice of a prehearing conference provided by email to parties of record, but never requiring publication in a local paper. Simply put, there is not and never has been an interpretation applied by the Hearing Examiner where publication of a notice for any prehearing conference is required. And, the County Commission has not taken action to amend relevant codes to correct any alleged mistake or erroneous interpretation they might have observed by Staff or the Examiner when scheduling or 2 notifying parties of a prehearing conference. A basic rule of statutory construction is that a long- standing interpretation given to a statute or ordinance by officials charged with its administration is highly persuasive with regard to legislative intent in enacting the statute or ordinance and, consequently, the meaning of the statute or ordinance.1 A legislative body, including a County Commission, is presumed to be familiar with its prior enactments and official interpretations of same.2 And, where a legislative body leaves an enactment unchanged in the face of decisions or actions interpreting or applying such enactment, courts can conclude that if the legislative body wanted to change terms of its enactment it would have expressly amended relevant language to do so rather than leave it unchanged.3 In this matter, the Examiner notes that the County’s legislative body has never amended the County’s codes or the hearing examiner’s rules of procedure to mandate publication of notices for prehearing conferences after Staff and the Hearing Examiner repeatedly interpreted noticing codes and rules as not requiring publication of notice(s) for any prehearing conference. Accordingly, the Hearing Examiner concludes that decision-makers with authority over such issue did not intend to change noticing practices for prehearing conferences. For reasons explained above, the prehearing conference, requested by the appellant, will go forward as scheduled, on Tuesday, July 8th, beginning at 1:00 pm. Issued this 3rd day of July, 2025 _____________________________ Gary N. McLean Hearing Examiner 1 6 McQuillin Mun. Corp. § 20:45 (3d ed.)(citations omitted). 2 Leonard v. City of Bothell, 87 Wash. 2d 847, 853 (1976); State v. George, 161 Wash. 2d 203, 211, 164 P.3d 506, 510 (2007); State v. Ose, 156 Wash. 2d 140, 148 (2005). 3 Friends of Snoqualmie Valley v. King Cnty. Boundary Review Bd., 118 Wash. 2d 488, 496-97 (1992).