By not sending a letter of notification to two property owners adjacent to a proposed crematory site, Clallam County delayed a decision on an appeal of Linde Family Funeral Service’s tenancy of a Carlsborg building for three weeks.
Clallam County hearing examiner Christopher Melly was to hear an appeal Aug. 27 regarding the county’s ability to award a certificate of occupancy for the building at 108 Business Park Loop, which had an expired building permit.
However, due to a gap in public notification, the hearing was delayed until Sept. 17. But not before Citizens for Carlsborg attorney Gerald Steel, who filed the petition, argued that Melly had no jurisdiction in the matter and Lauren Erickson, attorney for the building’s owner Cory Startup, could make the argument that the appeal should be dismissed entirely.
David Neupert, attorney for crematory applicant Jason Linde, and Douglas Jensen, Clallam County civil deputy prosecuting attorney, joined the motion for dismissal.
Melly heard from the attorneys on both the motion for dismissal and the challenge of his own jurisdiction before stating he would delay the meeting for three weeks.
"I believe it would be prudent to hold the hearing over to a new date to be fair to the public to be able to provide testimony on the dismissal and jurisdictional arguments as well as the merit of the appeal," Melly said.
At the Sept. 17 meeting, Melly will conduct a hearing on the appeal, taking arguments from lawyers on whether or not the certificate of occupancy should have been awarded, while taking public comment on all three matters – the appeal, this motion for dismissal and the challenge of his jurisdiction.
Melly then has 10 business days to make a decision on the first two motions. If he chooses to allow the appeal to move forward and assumes he has jurisdiction, he also will decide whether the county’s Department of Community Development should have awarded a certificate of occupancy.
The certificate
Startup applied for the building permit in 2003 and built the structure. However, before getting a final check by the county, his building permit expired in 2005. Linde approached Startup to use the building after the permit expired. But to get up and running, he needed a conditional use permit in order to use the land for a crematory, which he received from Melly on May 7, 2008. Then Linde needed a finalized building permit and certificate of occupancy in order to operate within the building, which he received from the county on June 2, 2008.
Steel appealed both actions. In a letter to the building official, Steel states the county began a new permitting process by awarding the certificate of occupancy, an action not allowed in Carlsborg.
"The above referenced application was in effect a new application for review, approval and authorization to use a new building," Steel wrote. "… There was a Growth Board invalidity order in place that prevented vesting of such new applications."
The county states in its staff report that the building official went through routine channels to award the certificate that reopened the expired permit for a one-time final approval.
More arguments will be made and rebutted at the Sept. 17 meeting in the Clallam County Courthouse, 223 E. Fourth St. in Port Angeles.
The Clallam County commissioners will preside over Steel’s conditional use permit appeal during a 10:30 a.m. meeting on Sept. 16 at the same location.
Dismissal
and jurisdiction
Erickson argued the certificate appeal should be dismissed on the basis that Steel did not apply for the appeal correctly and that Citizens for Carlsborg is not a party of standing.
Steel countered, stating he did not apply for an appeal to Melly, but rather to a board of appeals that he argued should have been set up with noncounty employees. By taking a separate appeal process, Steel had not met qualifications to appeal to Melly, such as providing an address for the Citizens for Carlsborg or reasons they were negatively affected by the certificate.
Steel said he appealed the administrative interpretation of the building code, something he argued Melly has no jurisdiction over. He said Clallam’s code allows for two types of land use appeals, one to a board of appeals, which does not exist in the county, and one to Melly.
Jensen, however, said the hearing examiner did have jurisdiction over the issue and the county adopted a code identifying how building permit appeals would take place – through the hearing examiner.
"The opponent is doing a Wizard of Oz scarecrow at the crossroads of the yellow brick road, pointing in each direction" Jensen said. "The county has a local appellate review system in place and that is codified to give jurisdiction to the hearing examiner."
