HomeMy WebLinkAboutR-2004-182 Public Hearing Set Date for Repeal of Ordinance No. 2001-56RESOLUTION NO. R-2004- 182
A RESOLUTION setting the date of December 14, 2004, at 2 p.m. as the date of the
public hearing on the repeal of Ordinance No. 2001-56 (amending
the Yakima Urban Area Comprehensive Plan Future Land Use Map).
WHEREAS, on December 5, 2002, the Eastern Washington Growth Management
Hearings Board determined that "Ordinance 2001-56 shall be invalidated with regard to
that portion of the ordinance to the Congdon Orchards future land use designation
amendment"; and
WHEREAS, on November 15, 2004, the Eastern Washington Growth Management
Hearings Board ordered the City of Yakima "to repeal Ordinance 2001-56 as quickly as
possible, while providing the appropriate public participation required by law"; and
WHEREAS, on November 15, 2004, the Board further ordered that the repeal
"shall take place no later than 30 days from the date of this Order," now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The date of December 14, 2004, shall be set as the date for a public hearing on
the repeal of City of Yakima Ordinance No. 2001-56. The public hearing will be
conducted at 2 p.m. on December 14, 2004, or as soon thereafter as appears on the
City Council business meeting agenda.
ADOPTED BY THE CITY COUNCIL this 16th day of November, 2004.
ATTEST: Karen S. Roberts, City Clerk
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
RECEIVED
N O V 1 6 2004
CITY LEGAL DEPT,
State of Washington
GROWTH MANAGEMENT HEARINGS BOARD
FOR EASTERN WASHINGTON
NEIGHBORS FOR RESPONSIBLE
DEVELOPMENT
Petitioner,
v.
CITY OF YAKIMA,
Respondent.
CONGDON ORCHARDS INC.
Interenors
Case No. 02-1-0009
SECOND ORDER ON COMPLIANCE
I. PROCEDURAL BACKGROUND
On May 9, 2002, NEIGHBORS FOR RESPONSIBLE DEVELOPMENT, by and through
their attorney, James Carmody, filed a Petition for Review.
On May 15, 2002, Respondent City of Yakima filed a Motion to Dismiss Petition for
Review.
On June 7, 2002, the Board held a prehearing conference. The Board received a
Stipulation and Agreed Order of Dismissal Regarding Respondent Yakima County. The Board
dismissed Yakima County as a party and issued its Prehearing Order.
On June 7, 2002, the Board also heard and considered argument on the City of
Yakima's Motion to Dismiss the Petition for Review as untimely filed. The Board issued its
Order Denying the City of Yakima's Motion to Dismiss Petition for Review on June 18, 2002.
23 On June 26, 2002, Respondent City of Yakima filed a Motion for Reconsideration of
24 Order Denying Motion to Dismiss Petition for Review.
25
26
Second Order on Compliance
Case 02-1-0009
November 15, 2004
Page 1
Eastern Washington
Growth Management Hearings Board
15 W. Yakima Avenue, Suite 102
Yakima, WA 98902
Phone. 509-574-6960
Fax: 509-574-6964
1 On July 15, 2002, the Board issued its Order Denying Respondent City of Yakima's
2 Motion for Reconsideration of Order Denying Motion to Dismiss Petition for Review.
3 On August 23, 2002, Congdon Orchards, Inc. filed a Motion to Intervene by and
4 through their attorney, Michael Shinn.
5 On September 11, 2002, the Board held a telephonic conference and considered the
6 Motion to Intervene filed by Congdon Orchards. The Board issued its Order Allowing
Intervention on September 12, 2002.
On September 17, 2002, the City of Yakima and Congdon Orchards filed Motions to
Supplement the Record.
On October 14, 2002, the Board held a telephonic hearing on Motions to Supplement
the Record. On October 25, 2002, the Board issued its Order Regarding Supplementation of
Record.
On November 6, 2002, the Board held the Hearing on the Merits in Yakima. Present
were D.E. "Skip" Chilberg as Presiding Officer, and Board Members Judy Wall and Dennis A.
DelIwo. Present for Petitioner was James C. Carmody. Present for Respondent was Terrence
I. Danysh and Raymond L. Paolella. Intervenor Congdon Orchards, Inc. ("Congdon") was
represented by Terry C. Schmalz.
On November 15, 2002, the Board issued a Memorandum Opinion.
On December 5, 2002, the Board issued a Final Decision and Order.
On April 3, 2003, Respondent, City of Yakima requested that a Compliance Hearing
be held in this matter.
On April 25, 2003, the Board held a compliance hearing. All parties were present and
represented by counsel. The Board continued the compliance hearing to May 9, 2003.
On May 9, 2003, the Board heard arguments regarding compliance and invalidity and
later received further briefing from the parties.
On May 19, 2003, the Board issued its Order on Compliance.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Second Order on Compliance
Case 02-1-0009
November 15, 2004
Page 2
Eastern Washington
Growth Management Hearings Board
15 W. Yakima Avenue, Suite 102
Yakima, WA 98902
Phone. 509-574-6960
Fax: 509-574-6964
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
On September 30, 2004, the Board sent a letter to the parties scheduling a
telephonic status conference in this matter.
On October 13, 2004, the Board received a letter from Petitioner's attorney regarding
compliance status.
On October 14, 2004, the Board held the telephonic status conference. Present were
Dennis Dellwo as Presiding Officer, and Board Members Judy Wall and John Roskelley.
Present for Petitioner was James C. Carmody. Present for Respondent was Terrence I.
Danysh and Raymond L. Paolella. Intervenor Congdon Orchards, Inc. ("Congdon") was
represented by Mike Shinn.
On November 12, 2004, the Board held a second telephonic status conference.
Present were Dennis Dellwo as Presiding Officer, and Board Members Judy Wall and John
Roskelley. Present for Petitioner was James C. Carmody. Present for Respondent was
Terrence I. Danysh and Raymond L. Paolella. Intervenor Congdon Orchards, Inc.
("Congdon") was represented by Mike Shinn.
II. DISCUSSION
The Board scheduled this hearing one-month after the previous status conference.
This was done due to the board's grave concern with the City's delays, which prevented
them from coming into compliance with the GMA.
On December 5, 2002 a final Decision and Order was entered finding the City of
Yakima out of compliance. The actions taken by the City were also found to be invalid. The
City was given 180 days to bring them into compliance. The compliance period ended June
3, 2003. On April 25, 2003, the Board held a hearing and found the City remained in non-
compliance. The Board gave the City of Yakima two separate remedial courses of action: 1.
Repeal of Ordinance 2001-56; or 2. Remedy the "fatally flawed" public participation process
by subjecting the comprehensive plan amendment to an appropriate public process. The
City informed the Board that it chose the second remedy. Twenty-five months have now
passed without the City bringing itself into compliance. The City now asks for an additional
Second Order on Compliance
Case 02-1-0009
November 15, 2004
Page 3
Eastern Washington
Growth Management Hearings Board
15 W Yakima Avenue, Suite 102
Yakima, WA 98902
Phone. 509-574-6960
Fax: 509-574-6964
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
seven months to bring it into completion. This is unacceptable.
The Hearings Board finds it necessary to order the City of Yakima to repeal
Ordinance 2001-56. After the repeal of Ordinance 2001-56, the Board will then be able to
find the City of Yakima in compliance with the GMA.
The Board is aware of Wildlife Habitat and Justice Prevention v. City of Covington,
CPSGMHB Case No. 00-3-0012 (November 6, 2002) which recognizes the Board's authority
to require such a repeal. The Board is further cognizant of a recent Washington State
Supreme Court case, Rural Residents v. Kitsap County, 141 Wn.2d 185, 192, 4 P.3d 115
(2000). The Supreme Court, in this Growth Management Case, found that a failure to take
corrective action during the compliance period renders the noncompliant regulation
ineffective and void. While the Board believes this decision would apply here, it is
unnecessary to make this finding at this time.
III. ORDER
1. The Respondent City of Yakima is to repeal Ordinance 2001-56 as quickly as
possible, while providing the appropriate public participation required by law.
This shall take place no later than 30 days from the date of this Order.
2. The City will forward evidence of such repeal to the Board and the parties
herein. The Board will shortly thereafter hold a Compliance hearing.
SO ORDERED this 15th day of November 2004.
EASTERN WASHINGTON GROWTH MANAGEMENT
GS BOARD
Second Order on Compliance
Case 02-1-0009
November 15, 2004
Page 4
ember
Roskelley, Board Flember
Eastern Washington
Growth Management Hearings Board
15 W. Yakima Avenue, Suite 102
Yakima, WA 98902
Phone: 509-574-6960
Fax: 509-574-6964
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
STATE OF WASHINGTON
GROWTH MANAGEMENT HEARINGS BOARD
FOR EASTERN WASHINGTON
NEIGHBORS FOR RESPONSIBLE
DEVELOPMENT
v.
CITY OF YAKIMA,
Petitioner,
Respondent.
Case No.: 02-1-0009
CERTIFICATE OF SERVICE
I am a citizen of the United States of America; I am over the age of 18 years and not
a party to the within entitled action; am an employee of this board and my business
address is 15 West Yakima Avenue, Suite 102, Yakima, Washington 98902.
On this date, I mailed a true copy of SECOND ORDER ON COMPLIANCE, in the above
entitled matter, to each of the persons listed below by placing a true copy thereof in a
sealed envelope with postage thereon fully prepaid, in the United States mail at Yakima,
Washington as addressed herein:
Neighbors for Responsible Development
5609 Arlington
Yakima, WA 98908
James C. Carmody
Velikanje, Moore & Shore P.S.
P.O. Box 22550
Yakima, WA 98907
Paul George, Mayor
City of Yakima
129 N. 2ND Street
Yakima, WA 98901
Certificate of Service
Case 02-1-0009
November 15, 2002
Page 1
Ray Paolella
City Attorney
200 S. 3rd Street
Yakima, WA 98901
Terry Danysh
Dorsey & Whitney
1420 5th Ave., Suite 3400
Seattle, WA 98101
Michael Shinn
Halverson Applegate P.S.
P.O. Box 22730
Yakima, WA 98907
Eastern Washington
Growth Management Hearings Board
15 W Yakima Avenue, Suite 102
Yakima, WA 98902
Phone. 509-574-6960
Fax: 509-574-6964
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
I certify under penalty of perjury, that the foregoing is true and correct.
DATED this 15th day of November 2004, at Yakima, Washington.
Certificate of Service
Case 02-1-0009
November 15, 2002
Page 2
Angie Andreas
Eastern Washington
Growth Management Hearings Board
15 W. Yakima Avenue, Suite 102
Yakima, WA 98902
Phone. 509-574-6960
Fax: 509-574-6964
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. i
For Meeting Of: December 14, 2004
ITEM TITLE: Public Hearing Set Date—Repeal of Ordinance No. 2001-56
(amending Yakima Urban Area Comprehensive Plan Future Land Use
Map)
SUBMITTED BY: William R. Cook, Director of Community & Economic Development
CONTACT PERSON / TELEPHONE: William R. Cook, Director of Community &
Economic Development, 575-6227
SUMMARY EXPLANATION:
On November 15, 2004, the Eastern Washington Growth Management Hearings Board
ordered the City of Yakima "to repeal Ordinance 2001-56 as quickly as possible, while
providing the appropriate public participation required by law." The Board further
ordered that the repeal "shall take place no later than 30 days from the date of this
Order." The attached resolution sets the date and time of December 14, 2004, at
2 p.m. for a public hearing on the repeal of City of Yakima Ordinance No. 2001-56.
Resolution X Ordinance Contract Other (Specify)
Funding Source
APPROVAL FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Adopt resolution setting the date of public hearing for
December 14, 2004.
COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2004-182