HomeMy WebLinkAbout2019 10 17 Order Denying Motion for Reconsideration1 2 3 4 5 6 7 8 9 BEFORE THE GROWTH MANAGEMENT HEARINGS BOARD WESTERN WASHINGTON REGION STATE OF WASHINGTON TARBOO RIDGE COALITION, Case No. 19-2-0003c Petitioner, V. 10 JEFFERSON COUNTY, ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Respondent. This matter comes before the Board on Respondent Jefferson County's (County) Motions for Reconsideration and to Supplement the Record.1 Tarboo Ridge Coalition filed a response to the County's motions.2 The County's motions arise from the Board's September 16, 2019, Final Decision and Order (FOO). The Board denies the County's Motions to Supplement the Record and for Reconsideration and clarifies one sentence in the FOO. Motion to Supplement the Record The County requests that the Title 18 SEPA source documents and the SEPA Checklist supplement the record pursuant to WAC 242-03-565.3 The County claims it will 1 Respondent Jefferson County's Motions for Reconsideration and to Supplement the Record (September 25, 2019). 2 Opposition to Reconsideration and Supplementation of the Record (October 7, 2019). 3 WAC 242-03-565 Motion to supplement the record. Generally, the board will review only documents and exhibits taken from the record developed by the city, county, or state in taking the action that is the subject of review by the board and attached to the briefs of a party. A party by motion may request that the board allow the record to be supplemented with additional evidence. (1) A motion to supplement the record shall be filed by the deadline established in the prehearing order, shall attach a copy of the document, and shall state the reasons why such evidence would be necessary or of substantial assistance to the board in reaching its decision, as specified in RCW 36.?0A.290 (4). The board may allow a later motion for supplementation on rebuttal or for other good cause shown. Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253 ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 1 of 7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 be at "an unfair disadvantage" without these documents. In their arguments for reconsideration below, the County urges the Board to consider Title 18's SEPA documents arguing the SEPA determinations for Title 18 also apply to Title 8. It is incumbent upon the County to establish that the documents proposed for supplementation would be necessary or of substantial assistance to the Board in reaching its decision. First of all, the deadline for motions to supplement was March 4, 2019.4 More significantly, as addressed below in Item # 4, the documents proposed for supplementation would neither be necessary nor of substantial assistance to the Board. The Board denies the Motion to Supplement the Record. Motion to Reconsider the Board's Final Order Motions for reconsideration are governed by WAC 242-03-830. Specifically, WAC 242-03-830(2) provides that a motion for reconsideration shall be based on at least one of the following grounds: (a) Errors of procedure or misinterpretation of fact or law, material to the party seeking reconsideration; or (b) Irregularity in the hearing before the board by which such party was prevented from having a fair hearing. Jefferson County asserts the Board should reconsider its September 16, 2019, ruling because of a procedural error and misinterpretations of fact and law. Its reconsideration motion is based on WAC 242-03-830(2)(a) criteria, errors of fact or law material to the outcome, and allege the Board erred stating: 1. The Board made an error of procedure by deciding an issue not before the Board namely whether the Title 18 Ordinance complied with SEPA. 2. The Board misinterpreted a fact by failing to accurately depict the permitting (2) Evidence arising subsequent to adoption of the challenged legislation is rarely allowed except when supported by a motion to supplement showing the necessity of such evidence to the board's decision concerning invalidity. (3) Exhibits attached to motions to supplement shall be cross-referenced in the briefs for the hearing on the merits, unless the presiding officer, in the order on motion to supplement, requires copies of supplemental exhibits to be attached also to the hearing on the merits brief. 4 GMHB No. 19-2-0003c (Prehearing Order, January 25, 2019) at 4. ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 2 of 7 Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253
1 2 3 4 5 6 7 8 9 10 11 12 13 scheme in the ordinances. 3. The Board misinterpreted a fact by incorrectly assuming that no SEPA review was done in connection with the Title 18 Ordinance. 4. The Board misinterpreted fact and law by assuming that a determination of non-significance is not sufficient SEPA review. 5. The Board misinterpreted the law by imposing invalidity as a result of SEPA non-compliance on the entirety of both ordinances without determining the particular parts of the Ordinances that were invalid and stating the reasons for their invalidity. The Board reviewed the County's allegations, the Petitioner's response and makes the following decisions. 14 Item# 1 Issue not before the Board 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 The County states the Board improperly addressed an issue not raised in the Petition for Review. It claims Title 18's SEPA compliance was not a legal issue before the Board, thus the entire FOO should be reconsidered.5 Petitioner disagrees stating the County analysis "reflects a fundamental misunderstanding, on the County's part, of the FOO" as the Board did not issue a ruling on Title 18's Determination of Non-Significance (DNS).6 The Board's FOO addressed both Title 8 and 18 because they were "inextricably intertwined" and together they adopted land use controls applicable to commercial shooting facilities. 7 The Board found the majority of Title 18's land use controls were repealed, and instead land use controls for shooting facilities were placed under Title 8.8 The Board stated 5 Respondent Jefferson County's Motions for Reconsideration and to Supplement the Record (Reconsideration, September 25, 2019) at 7 "As SEPA noncompliance for Title 18 was not raised by TRC, the Board's ruling that the ONS violated RCW 43.21C.030 amounts to an advisory opinion and is barred under RCW 36.?0A.290(1) ... (emphasis omitted) 6 Opposition to Reconsideration and Supplementation of the Record (Opposition, October 7, 2019) at 4 "The Board never made any such ruling. On the contrary, the FOO clearly and repeatedly acknowledges the existence of the Title 18 ONS and offers no opinion whatsoever as to the adequacy of the Title 18 ONS. Therefore, there is nothing for the Board to reconsider." 1 FOO at 9-10 and 16. 8 FOO at 10 "Title 18 provides little control over shooting facilities because those controls have been shifted to Title 8. (n. 30) Title 8 contains the substantive land use requirements for shooting facilities such as references to critical areas (RN 2018-024 at 00029) and facility locations and designs (RN 2018-024 at 00033-Growth Management Hearings Board ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 3 of 7 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 in its FOO that because both Title 8 and Title 18 were development regulations under RCW 36. ?OA.030(8) and RCW 36. ?OA.280, they both were under the Board's jurisdiction and both required SEPA reviews. During the compliance phase of this case, the County must review the environmental impacts that may be occasioned by Title 8 and 18 because they are linked land use development regulations. The Board further addresses the question in Item# 4 below. The Board finds there was no error in procedure regarding Title 18 and SEPA and denies the County's request to reconsider the entire FDO. Item #2 Permitting Scheme The County asserts the Board misinterpreted a fact by failing to understand the entire scheme to control shooting facilities. The County argues significant controls are placed on shooting facilities through Title 18's Conditional Use Permit process (CUP). Petitioner did not respond to this allegation. The Board acknowledges that a CUP process in Title 18 may impose conditions on commercial shooting facilities, but the County did not argue in their initial brief how these conditions work with those in Title 8. In fact, it was the Board's FOO analysis that showed the two Titles were linked. The County's attempt now to link the two land use control ordinances by describing the "scheme" is not persuasive. The Board finds there was no misinterpretation of fact about how the permitting scheme works. 24 Item #3 Correction to Final Decision and Order 25 26 27 28 29 30 31 32 The Board agrees with the County that it implied that Title 18 did not undergo a SEPA review. The Board FOO stated on page 16: Having made these changes through Title 8 and Title 18, without SEPA review, the County had virtually no information regarding the foreseeable environmental effects of the shooting facility regulations. (Emphasis added) 42). Such regulations in Title 8 are under the Board's jurisdiction per RCW 36.70A.030 and .280." See a/so 10 n.30: "RN 2018-034 at 00180 -184 Title 18 after the amendments has few land use controls over shooting facilities except clarification to standards for cottage industries and home businesses and a table of allowable uses in certain land use categories." (emphasis added) ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 4 of 7 Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 That sentence was inartfully worded and implies that Title 18 had no SEPA review. The Board acknowledges that the County conducted SEPA review of Title 18. That finding is reflected in the FOO. See page 1, lines 19-20; page 13, lines 1-5; page 15, lines 18-22; page 17, Finding of Fact 6; page 18 Conclusion of Law D. However, in light of the lack of clarity, the Board revises the FOO on page 16, line 19-22 as follows: Having made these changes through Title 8 without SEPA review, and through Title 18 with a Declaration of Non-Significance, the County had virtually no information regarding the foreseeable environmental effects of the shooting facility regulations. Item #4 SEPA DNS should apply to both Titles 8 and 18 The County argues the Board failed to apply Title 18's SEPA review to Title 8. It explains that Title 8 was referenced in Title 18's SEPA checklist and should now be considered by the Board.9 It clarifies that Title 18's SEPA review, including its DNS, "is prima facie compliant with SEPA procedural requirements. The County developed and used a SEPA Checklist for the non-project proposal." 10 The County would like the Board to apply the Title 18 SEPA documents and process to Title 8. It argues, however, that because the Title 18 SEPA documents were not in the record (showing the County complied with SEPA for Title 18), the Board could not determine that Title 8 Ordinance also complied with SEPA. The County requests the Board to supplement the record with Title 18 SEPA Documents and determine that Title 18's SEPA compliance also applies to Title 8. Petitioner objects to the County making a new legal argument in its Motion on Reconsideration and claim this argument should have been raised at the Hearing on the Merits.11 The County's argument is not well taken. The Board did not base its decision on the County's failure to conduct SEPA review of Title 18. The County's SEPA failure arose from 9 Id. at 11 "These definitions came from the Title 8 Ordinance .... Title 18 SEPA Checklist expressly stated: The Jefferson County Board of County Commissioners currently is considering amendments to Title 8 of the Jefferson County Code, which, if approved as drafted, would implement an operating license for commercial shooting facilities. The proposed ordinance for Title 8 amendments, as currently drafted, requires an environmental plan detailing Best Management Practices to collect and properly dispose of bullets, cartridges, and shotgun wadding." (emphasis in the original) 10 Reconsideration at 10. 11 Opposition at 5 " ... if the County wanted to argue that the Title 18 DNS applied as well to the Title 8 ordinance, it should have done so at the hearing on the merits." ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 5 of 7 Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the fact that it adopted regulations through the adoption of Titles 8 and 18 combined which authorized a significant expansion of its development regulations applicable to shooting facilities. As the Board stated: Here, the County amended the Jefferson County Codes, replacing development regulations allowing small-scale outdoor shooting range facilities "specifically designed and used for safe shooting practice with firearms and/or archery practice" with "commercial shooting facilities," a use of much greater scale and which includes "organizational training for law enforcement" and "organizational training for members of the armed forces."12 That expansion in the size and scale of the shooting facilities potentially allowed through the adoption of Titles 8 and 18 based solely on the issuance of a DNS for Title 18 failed to establish prima facie SEPA compliance. Even if the Board were to allow supplementation of the record with the Title 18 SEPA source documents and the SEPA Checklist, the underlying rationale for finding a SEPA violation would remain. Furthermore, and as the Board has ruled in prior cases, raising new arguments, or even making a more precise argument, in a motion for reconsideration is not allowed. Errors of law or fact can be raised upon reconsideration, but here the County wants to introduce a new legal argument, based on new information not introduced as evidence for the Hearing on the Merits. The Board agrees with the Petitioner that "a bare reference, in the Title 18 SEPA Checklist but nowhere in the Title 18 DNS, to the existence of a proposed amendment to Title 8, does not constitute the kind of "environmental full disclos[ure]" and careful consideration of the "full range of probable impacts" of an action that the Board correctly demanded."13 The Board finds there was no misinterpretation of fact or law about Title 18's SEPA determination nor the lack of SEPA for Title 8. Item #5 Clarifying Application of Invalidity 29 The County argues that when the Board imposed invalidity as a result of SEPA 30 noncompliance on the entirety of both ordinances the Board should have specified where 31 32 12 FOO at 12. 13 Opposition at 6. ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 6 of 7 Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 invalidity applied to each part of the ordinance.14 Petitioner responds that the Board correctly invalidated both Title 8 and 18 in their entirety because both are linked and cannot be untangled.15 RCW 36.?0A.302 (1 )(c) allows the Board to specify in its final order "the particular part or parts of the plan or regulation that are determined to be invalid, and the reasons for their invalidity." To clarify the portions invalidated by the Board in its Final Decision and Order on Titles 8 and 18, the Board specifically invalidated only those portions of Title 8 as amended by the County on November 2, 2018, in Ordinance# 12-1102-18 and only those portions of Title 18 as amended by the County on December 14, 2018, in Ordinance# 15-1214-18. ORDER Based on the foregoing, the Board amends the Final Decision and Order as set forth above and Jefferson County's Motion for Reconsideration and Motion to Supplement are DENIED. ENTERED this 15th day of October 2019. ;> N~· William Roehl, Board Member =g)~~J,4 Bill Hinkle, B~d Note: This is a final decision and order of the Growth Management Hearings Board issued pursuant to RCW 36.70A.300.16 14 Reconsideration at 14. 1s Opposition at 7-8. 16 A party aggrieved by a final decision of the Board may appeal the decision to Superior Court within thirty days as provided in RCW 34.05.514 or 36.01.050. See RCW 36.70A.300(5) and WAC 242-03-970. It is incumbent upon the parties to review all applicable statutes and rules. The staff of the Growth Management Hearings Board is not authorized to provide legal advice. ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT Case No. 19-2-0003c October 16, 2019 Page 7 of 7 Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 BEFORE THE GROWTH MANAGEMENT HEARINGS BOARD WESTERN WASHINGTON REGION Case No. 19-2-0003c Tarboo Ridge Coalition v. Jefferson County DECLARATION OF SERVICE I, MORGAN PILON, under penalty of perjury under the laws of the State of Washington, declare as follows: I am the Legal Office Assistant to the Growth Management Hearings Board. On the date indicated below a copy of the ORDER AMENDING FINAL DECISION AND ORDER AND DENYING MOTION FOR RECONSIDERATION AND MOTION TO SUPPLEMENT in the above-entitled case was sent to the following through the United States postal mail service: Philip C. Hunsucker Chief Civil Deputy Prosecuting Attorney Jefferson County Prosecuting Attorney's Office PO Box 1220 Port Townsend WA 98368 DATED this 15th day of October, 2019. DECLARATION OF SERVICE Case No. 19-2-0003c October 16, 2019 Page 1 of 1 Alex Sidles Bricklin and Newman, LLP 1424 4th Ave STE 500 Seattle WA 98101 Growth Management Hearings Board 1111 Israel Road SW, Suite 301 P.O. Box 40953 Olympia, WA 98504-0953 Phone: 360-664-9170 Fax: 360-586-2253