Let Us Count the Ways

We all know that guy who believes “it’s only illegal if you get caught.” PuyallupNow has to wonder if this is the motto of City Councilman Palmer his minions.

At the recent emergency meeting (an emergency fabricated entirely by Palmer) they slammed through crippling regulations designed to persecute specific local farmers and job creators. In preparation for that meeting, the attorney representing the developer sent a scathing and direct letter to the council.

They ignored it.

We will link to the entire letter at the end of this post, but the following are some excerpts of the crimes and infractions sighted in the communication.

The Proposed ML Overlay is a discriminatory, site-specific rezone that is the latest in a pattern of actions by certain members of the City Council to interfere with the Schnitzer/ Van Lierop Purchase Agreement. The purpose of this letter is to put the City Council on notice that if it adopts the Proposed ML Overlay, it will do so in knowing Violation of the law. As the Council knows, actions taken in knowing violation of the law give rise to a claim for damages and attorney’s fees under Chapter 64.40 RCW.

In early 2014, Schnitzer submitted a short plat application for a warehouse project that was fully consistent with the new ML zoning. … the newly comprised Council immediately proposed an “emergency” moratorium preventing the acceptance or processing of any and all… …applications or plans on thirteen parcels in the Shaw-East Pioneer area, which included the Property. We informed the Council at that time that the moratorium was adopted in violation of state law, without required Planning Commission or State Environmental Policy Act (“SEPA”) review, but the Council acted in disregard of our letter and the law.

The stated purpose of the moratorium was to allow time for the City to consider whether to extend the original [overlay]… …to thirteen parcels in the Shaw-Pioneer area, which included the Property. …Councilmember Vermillion observed at the January 7, 2014 Council meeting that the moratorium could be viewed as “personal retribution against Schnitzer” the only entity with a viable development proposal in the Shaw-Pioneer area. Furthermore, Councilmember Door described the urgency as follows: “do it now before the [Schnitzer] sale closes.”

In sum, the actions of the Council over the last several months reveal a concerted scheme to interfere with the Schnitzer/ Van Lierop Purchase Agreement and prohibit industrial development on the Property. If the Council adopts the Proposed ML Overlay… … it will do so in knowing violation of the law and subject the City to damages under Chapter 64.40 RCW.

Outlined below are some of the legal defects associated with the City process and the Proposed ML Overlay. This list is not exhaustive.

1. Planning Commission and SEPA Violations

… Before the city council may grant, modify or deny any application for amendment [to the City’s zoning code], it must first receive and consider a recommendation on such application from the planning commission. Before the planning commission acts to make a recommendation on such application it shall conduct a duly noticed public hearing pursuant to Chapter 20.12 PMC.

The Planning Commission… … did not consider a targeted, site-specific ML overlay with standards so stringent that viable industrial development could not occur. PMC 20.91.020 and PMC 20.91.025

Similarly… … the SEPA Addendum did not analyze the impacts of creating a new, site-specific ML overlay that would significantly restrict building size and effectively preclude industrial development. RCW 43.21C.034

2. Appearance of Fairness Doctrine/Bias/Due Process Violations

This is a quasi-judicial action… Accordingly the appearance fairness of doctrine applies here… In a quasi-judicial matter, local governments must disqualify decision-makers from quasi-judicial hearings who have prejudged the issues, who have a bias in favor of one side in the proceeding, who have a conflict of interest, or who cannot otherwise be impartial. RCW 42.36.060.

In this case, the evidence shows – through adoption of a development moratorium on the eve of Schnitzer’s short plat application and Councilmember Vermillion’s observation that the moratorium as adopted as “personal retribution against Schnitzer” – clear evidence of bias. However, no attempt was made to assess and disclose potential bias on the record, and no attempt was made to assess the extent and nature of ex parte contacts. This is a violation of the appearance of fairness doctrine, which would require invalidation of the Proposed ML Overlay (if adopted). See Alger vs City of Mukilteo 107 Wn. 2d 541, 730 P.2d 1333 (1987).

3. Comprehensive Plan Inconsistency

The City’s Comprehensive Plan notes that the City “has lagged behind many other Puget Sound communities in the development of industrial, warehousing and business park uses,” which has resulted in limited employment opportunities and no industrial tax base.

4. Internal Development Regulation Inconsistency

The Proposed ML Overlay is also inconsistent with… …the PMC 20.46.005 and the Cíty’s ML regulations, which are designed to encourage high-quality industrial development.

5. Other Procedural Violations

The decision not to allow public comment at a special meeting set to consider adoption of a new,site-specific zoning ordinance that was introduced for the first time on May 20 is an extraordinary action that violates participation requirements. RCW 36.70A.020(11); RCW 36.70A.140; RCW 36.70A.035; WAC 365-196-600.

Finally, on May 16, 2014, we submitted a Public Records Act (“PRA”) request to the City for documents related to the Schnitzer short plat application and proposed overlay zone since February 1, 2014 (documents produced over a 3 month time period). The City responded that it could not produce the requested documents until November. A six-month response time is unreasonable and gives rise to a claim under RCW 42.56.550. The City’s eventual response to the PRA request may reveal additional violations of state law, including potential violations of the Open Public Meeting Act (“OPMA”), Chapter 42.30 RCW.10

Click here to read the full letter.

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