Hearing examiner cancels MAT hearing

Environmental review must be separate under code, he says

A week before a hearing was set to begin addressing appeals for the Jamestown S’Klallam Tribe’s proposed medication-assisted treatment (MAT) application, the City of Sequim’s appointed hearing examiner Phil Olbrechts cancelled the hearing because of perceived issues with the city’s code.

In an email to parties of record on Sunday, Sept. 20, Olbrechts wrote that he does “not have jurisdiction over consolidated permit hearings that include a (State Environmental Policy Act, SEPA) appeal.”

A virtual, three-day hearing was set for Sept. 28-30 to hear six appeals from four appellants including Robert Bilow, Parkwood Manufactured Housing Community, LLC, Save Our Sequim (S.O.S.), and the tribe.

Their appeals were collected into one hearing, per city code, for three aspects — the classification of the project (city staff review versus city council review), the environmental Mitigated Determination of Nonsignificance (MDNS) SEPA review, and the application as a whole.

Olbrechts wrote he was disappointed to make the ruling, “but unfortunately, there is little room for reasonable disagreement on the jurisdictional issue.”

He added that if he retained jurisdiction on the proposed 16,806-square-foot medical facility’s application, a “reviewing court would very likely overturn my final decision and remand the appeal back to the city council to do the entire process over again.”

“Ultimately, correcting course at this time is the only way to prevent what would otherwise be an even more significant unnecessary loss of time and money for all parties,” Olbrechts wrote.

Reaction

Sequim city attorney Kristina Nelson-Gross said the city wouldn’t comment on Olbrechts’ email until he issues an official decision.

Olbrechts wrote that in the coming days he’ll issue a temporary (interlocutory) order followed by a final decision “that addresses the other jurisdictional arguments made by the parties, to avoid remands in case a reviewing court disagrees with my determination.”

Jodi Wilke, chairman for Save Our Sequim, a group in favor of opioid use disorder treatment but not at the tribe’s proposed location and scale, said they’re “really excited and happy” with Olbrechts’ decision.

“We see this as confirmation as to what S.O.S. has been saying all along. All we want is the city to follow their own municipal code, which we believe they haven’t done,” she said.

“The hearing examiner’s confirmation means we’re on the right track.”

Olbrechts wrote “the council may still have the option of amending its code to delegate decision making responsibility on SEPA appeals to the hearing examiner.”

Wilke said Olbrechts will send the city council a tool box from his decision and they must consider what to do next with it.

“What is the city council going to do? Clearly city staff have a different attitude and vision about this,” she said.

Brent Simcosky, Jamestown’s director of health services, said despite Olbrechts’ email, he “doesn’t see the result being any different” with the application eventually being approved.

Under the city’s current process, Barry Berezowsky, Sequim director of community development, approved the project in May, which led to the appeals process and eventually the hiring of Olbrechts to review the application.

Simcosky said the tribe’s clinic that would dispense daily doses of methadone, Suboxone and Vivitrol for patients with opioid-use disorder is vested and that even if the application goes to the city council, any decision on it must be based on Washington state and city code.

“They legally have to go by what the law says,” Simcosky said.

“We’re disappointed (Olbrechts) has to make this ruling so (city councilors) can fix a technicality.”

Process

Aside from “one poorly written (Sequim Municipal Code) section to the contract, the city’s permit processing framework overall is designed to limit Hearing Examiner review to ministerial permits and minor permitting decisions,” Olbrechts wrote.

He added that the city council designated “significant discretionary decision making to itself” the courts in the 1970s “recognized that SEPA can be used to change ministerial permits into discretionary ones, by giving decision makers broad authority to mitigate environmental impacts.”

“This is likely why not one but two (city code) permit processing provisions expressly assign SEPA appellate review to the city council,” he wrote.

Wilke said it’s unclear what section Olbrechts is referring to in the code, because her group believes there are many areas of concern.

Olbrechts said appeals were consolidated correctly under the city’s design review decision, but “SEPA has never been construed as requiring a threshold appeal to be consolidated with the last permit for a proposal.”

He wrote, “Threshold appeals are routinely processed and resolved prior to the application of building permits.”

Berezowsky issued the tribe a building permit on June 29 but because the tribe is appealing the city’s conditions regarding a Mitigated Determination of Non-significance environmental review, and he previously said “they can’t start until those issues are resolved.”

That may have happened if the application was approved through the hearing examiner process, but now the application awaits Olbrechts’ ruling and potential next steps through the city council.

For more information about the MAT application, visit www.sequimwa.gov.

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