A timeline is not yet set for a Clallam County Superior Court decision on another appeal regarding the proposed medication-assisted treatment (MAT) clinic.
Judge Brent Basden heard testimony regarding the Save Our Sequim (SOS) group’s appeal of the Land Use Petition Act (LUPA) in a hearing on Friday, Jan. 15, saying he wasn’t ready to rule on the appeal because the record is extensive with several thousand pages.
Based said he is also considering decisions on several other cases, including another land use appeal from Ruth Brothers Enterprises, LLC. against the City of Sequim over the developer’s access for construction into Jennie’s Meadows in Sequim.
“I’ll be done as soon as I can,” Basden said. “It may take some time.”
Michael Spence, an attorney representing SOS, seeks to reverse a decision by the city’s appointed hearing examiner Phil Olbrechts’ from October 2020, a decision that found SOS “lacks standing” and their appeals were dropped against the Jamestown S’Klallam Tribe’s proposed 16,800-plus-square-foot MAT clinic.
SOS leaders want city staff to review the application under the C-2, not A-2 application — a city council decision rather than city staff — and for discovery of testimony from city leaders.
Spence said they seek discovery because they want to know if “there is something that happened off the record that influenced that decision (for choosing C-2 over A-2).” He said he also wonders why Olbrechts advised parties of record on Sept. 20, 2020, that he doesn’t have jurisdiction over consolidated permit hearings for a State Environmental Policy Act (SEPA) appeal. City councilors later voted to change the ordinance 5-1 — with Sequim mayor William Armacost opposed — to direct all appeals of Type A-1 and A-2 administrative permit decisions to a hearing examiner.
“We don’t feel the record tells the entire story,” Spence said.
Both attorneys for the city and tribe, Kristina Nelson-Gross and Andy Murphy, seek this appeal to be dismissed, along with another LUPA appeal SOS filed on the MAT application’s final decision.
Nelson-Gross said Spence is misinterpreting the LUPA process because discovery isn’t allowed unless under “very limited purview” and their issues aren’t relevant to the hearing.
She added that SOS failed to meet its burden over the past year-and-a-half to establish its standing for Olbrechts and now Basden.
Murphy argued that SOS filed this appeal early prior to Olbrechts’ final decision, so it should not be considered. However, Spence said if they had waited the 21 days after Olbrechts’ decision then the city and tribe would have contested that timeline being late, so they filed both appeals.
Murphy said if the LUPA appeal of the application’s final decision is timely then the one on SOS’s standing is not and should not be considered.
He added that SOS has not shown how they will be specifically hurt by the clinic.
“It’s not presumed; it must be proved,” Murphy said.
While the project is being debated in court, Basden asked how his decision will impact the project since construction has already begun.
Murphy said the building permit is final, and to authorize and stop construction cannot stand when the tribe has the permits.
“The Mitigated Determination of Nonsignificance (from Olbrechts’ decision) was issued with the design appeal. The MDNS was connected to the design review but not the building review,” he said.
Nelson-Gross said an administrative appeal of the building permit must’ve been filed within 21 days of the building permit to the city before it received final approval.
If Basden rules for SOS, Nelson-Gross said “it would not be of any necessary consequence.”
“We are talking use, not construction of the facility,” she said.
“We have building and site construction permits and the tribe is authorized to act on those,” Murphy said. “There’s no practical difference. That’s why (SOS’s) appeal is moot.”
Spence disagreed saying “if the building is built, the choices are to do something else (with the building) and change the land use in that building, or tear it down.”
After the hearing, SOS’s board of directors issued a statement saying they hope “for a positive outcome following the pre-hearing on Jan. 15, that will allow the citizens of Sequim to be included in a public and more robust permitting process”
“The main dispute at this point is whether SOS has ‘standing’ and we believe representing thousands of Sequim citizens for the past 20 months gives us standing,” they write. “This legal technicality, among other motions, will be decided by Superior Court Judge Brent Basden. SOS was encouraged to see his sincere and inquisitive line of questioning in court on Friday and we have every expectation that his deliberations will be fair and impartial.”
On Monday, Jan. 11, Basden met with the attorneys in a special meeting warning their clients not to use perceived divisive language leading up to the hearing after a Jan. 7 Facebook post on SOS’s page asked supporters to “Stand up and fight for what you believe in” and to “send the message to the court that this hearing is important.”
Basden said his decision would be based on law, and he issued the warning to keep the courtroom safe. SOS leaders said the online post was taken out of context as they were looking to inspire the community.
“We are astonished to think someone could ever confuse this motivational language as a call to arms or a call to violence,” SOS board directors wrote in a statement.
The discussion was not mentioned the Jan. 15 hearing.