Two appeals heard, one decision made

The scene for an audience of about 50 people at a Sept. 16 Clallam County commissioners' meeting was five lawyers arguing over standing, scheduling and evidence attached to an appeal of a permit that would allow a crematory to operate in Carlsborg.

Jason Linde, owner of Linde Family Funeral Service, received approval from Clallam County hearing examiner Chris Melly on May 7 to install a cremation chamber at 108 Business Park Loop, where he currently cold-stores cadavers before transporting them to Kent for cremation.

Melly makes decisions on proposed land uses that are not identified in the county's zoning law, including crematories.

Gabby's Java and Gourmet Grub business owner Brian Magner, of Carlsborg, retained attorney Craig Miller to appeal the use permit while Citizens for Carlsborg, a community group opposing the crematory, hired attorney Gerald Steel to do the same.

The three county commissioners entered the hearing in a quasi-judicial capacity, meaning they are the judges who will rule whether the appeal of Melly's decision to allow the crematory is sound and legal.

The hearing was closed to public comment. Only those who gave comments during the first meeting in April were able to speak again Sept. 16.

Miller and Steel both argued Melly erred in his decision, allowing the crematory to be compared to a veterinary clinic and by not identifying the crematory as both a nuisance and incompatible use with surrounding land uses.

Suggesting a nuisance, Steel cited both psychological impacts and the potential for mercury emissions from dental fillings as two ways the crematory would have "adverse impacts on the surrounding land uses, which cannot be mitigated through the application of reasonable conditions."

Many business owners in the area have expressed concern about going out of business because the area might develop a stigma due to the crematory.

David Neupert, Linde's attorney, indicated the opposition had no proof the crematory would have a negative impact to the community, stating there would be no signs and only employees would be in transit to the location.

He said the equipment was the most efficient available and that the businesses surrounding the two existing crematories in the county, including an elementary school in Port Angeles, had no negative impacts from those operations' older equipment.

Then, suggesting an incorrect comparison, Miller and Steel argued the crematory should be compared to a cemetery, which is not an allowed use in Carlsborg. Melly compared the crematory to a veterinary clinic, an allowed use, stating it was not uncommon to find a veterinarian with a cremation chamber on site.

"A crematory, like a cemetery, is a facility for the handling of human bodies ... A crematory has similar psychological impacts upon its neighbors as does a cemetery," Miller wrote in his brief.

Clallam County civil deputy prosecuting attorney Douglas Jensen said comparing a crematory to a cemetery was "probably the worst example of similar use."

He said cemeteries are allowed in residential areas and that a crematory is much more similar to an industrial use because of the process involved in a commercial structure.

The commissioners heard many more arguments regarding who has standing to argue before them, what their roles were as appellant judges and regarding public notice for the first hearing that had been held in front of Melly.

The commissioners will receive two more sets of legal briefs from the lawyers over the next three weeks. A decision is not expected until an Oct. 21 or 28 meeting.

Steel also appealed the building permit for the storage structure Linde occupies, stating it was erroneously awarded in May because it had expired years earlier.

Melly held a meeting Sept. 17 to handle the building permit challenge. At the hearing he allowed the appeal to be dismissed, meaning the permit allowing Linde to occupy the building withstood its first test.

Steel, however, indicated he would take the matter to the next level. But while the Clallam County commissioners are generally the next step, all the parties agreed to skip that step and go to the Clallam County Superior Court for appeal.

The case is not likely to be heard before 2009.

In order to begin operating in Carlsborg, Melly required Linde to have an updated building permit and an emissions permit, which he would receive from the Olympic Region Clean Air Agency. Linde has held off applying for the emissions permit while he waits for final decisions on the two appeals that could put an end to his proposal.

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