HomeMy WebLinkAbout2022-04-22 Motion Exclude
APPLICANT’S MOTION TO EXCLUDE - 1
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
BEFORE THE HEARING EXAMINER
FOR JEFFERSON COUNTY
In Re Appeal of OAK BAY CONCERNED CITIZENS,
Appellant,
v.
JEFFERSON COUNTY,
Respondent.
No. MLA21-00066
APPLICANT’S MOTION TO EXCLUDE
I. INTRODUCTION AND RELIEF REQUESTED
The Expert Witness List filed by Appellant Oak Bay Concerned Citizens (“Appellant”)
identifies a witness, Nam Siu, Department of Fish and Wildlife (“WDFW”), Biologist, to “testify
about the existence of wetlands and wetland buffers on or near the project site.” The existence of
wetlands and buffers is not an issue in this appeal. Accordingly, the Applicant moves to exclude
testimony by Mr. Siu.
II. STATEMENT OF FACTS
Appellant filed the Notice of Appeal in this matter on March 16, 2022. The Notice of
Appeal raises 11 claims of error in Paragraphs 12-22. These claims are identified by the
following headings (listed by Paragraph number): (12) Traffic: Cyclist Collision Hazard, (13)
APPLICANT’S MOTION TO EXCLUDE - 2
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
Traffic: Vehicle Collision Hazard; (14) Traffic: Obstruction of Oak Bay Road During
Construction; (15) Landslides and Erosion; (16) Stormwater Runoff; (17) Insufficient
Availability of Water; (18) Aquifer Recharge; (19) Noise; (20) Light and Glare; (21) Aesthetic
Impacts; and (22) Habitat. There are no claims made regarding wetlands. Indeed, the word
“wetland” does not appear in the Notice of Appeal.
On April 13, 2022, Appellant submitted its Expert Witness List. Appellant identified
three expert witnesses, including Nam Siu, a biologist with the Department of Fish and Wildlife.
The Expert Witness List states, “Mr. Siu will testify about the existence of wetlands and wetland
buffers on and near the project site. Mr. Siu’s testimony will relate to Paragraphs 10 and 21 of
the notice of appeal.”
Paragraph 10 of the Notice of Appeal is not a claim of error. Paragraph 10 is a general
summary of the State Environmental Policy Act (“SEPA’s”) procedural requirements. Paragraph
21 of the Notice of Appeal relates to aesthetic impacts. It does not relate to or mention wetlands.
The Applicant now brings this motion to exclude the testimony of Mr. Siu.
III. STATEMENT OF ISSUES
The issue presented in this motion is whether the testimony of Mr. Siu should be
excluded when the testimony relates to matters that were not raised in the Notice of Appeal.
IV. EVIDENCE RELIED UPON
This motion relies on the pleadings and papers on file in this case.
V. AUTHORITY
Jefferson County Code (“JCC”) 18.40.330(3) requires that a notice of appeal of a DNS
must comply with “the Hearing Examiner Rules of Procedure.” The Hearing Examiner Rules of
APPLICANT’S MOTION TO EXCLUDE - 3
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MCCULLOUGH HILL LEARY, PS
701 Fifth Avenue, Suite 6600 Seattle, WA 98104 206.812.3388 206.812.3389 fax
Procedure (“RAP”) Rule 3.1 require that a notice of appeal contain, among other things, “a
concise statement of the factual and legal basis for the appeal citing specifically the alleged
errors in the administrative official’s decision.” (Emphasis added.) RAP 3.3(a) authorizes the
Examiner to limit the introduction of evidence or testimony on a pre-hearing motion.
Here, the Notice of Appeal specifically identifies the alleged errors in the DNS, as
required by RAP 3.1. There is no claimed error that relates to wetlands. The testimony of Mr.
Siu, as described in Appellant’s Expert Witness List, relates solely to wetlands and their buffers
on and near the project site. Since wetlands are not at issue in this SEPA appeal, Mr. Siu’s
testimony is not relevant and should be excluded.
VI. CONCLUSION
For these reasons, the Applicant requests that the Examiner exclude the testimony of Mr.
Siu.
DATED this 22nd day of April, 2022.
s/Courtney A. Kaylor, WSBA #27519
s/David P. Carpman, WSBA #54753
McCULLOUGH HILL LEARY, PS 701 Fifth Avenue, Suite 6600 Seattle, WA 98104 Tel: 206-812-3388
Fax: 206-812-3398
Email: courtney@mhseattle.com Email: dcarpman@mhseattle.com Attorneys for Applicant Pomona Woods LLC