09 - YCG Response to Motion to Dismiss1
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The Honorable Pauia Casey
Hearing Date: March 10, 2004
Hearing Time: 9:00 a.m.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
v.
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
NO. 06-2-00103-3
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO
DISMISS
i. RELIEF REQUESTED
Respondents City of Yelm and Wal-Mart Stores, Inc. have moved to dismiss Yelm
Commerce Group's ("YCG") Land Use Petition challenging the approval of a Wal-Mart
Superstore in the City of Yelm. See City of Yelm's Motion to Dismiss Land Use Petition
(Jan. 31, 2006}; Wal-Mart's Motion to Dismiss {Feb. 9, 2006). Respondents claim YGG's
LUPA petition should be dismissed because it was not served on the Yelm City
Administrator until January 19, 2006 (instead of January 18, 2006 -- the day the respondents
claim it should have been served). Because YCG has met all filing and service requirements
$ricklizx Newman Do(d, LLP
Attorneys-at•Law
1001 Fourth Avenue, Suite 3303
YELM COMMERCE GROUP'S a ~ ~io6W 6a9-s o0
RESPONSE TO MOTIONS TO DISMISS - 1 Fax 0106) 26¢9300
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set forth in the Land Use Petition Act, Ch. 36.70C RCW ("LUPA"), the motions to dismiss
should be denied.
II. STATEMENT OF FACTS
YCG is a Washington non-profit organization dedicated to ensuring growth in the
City of Yelm that supports the community's vitality, to assisting the City leadership in
regulating growth appropriate to Yelm's size, and to maintaining a small town feeling in the
City of Yelm. See Land Use Petition at 3, ¶ 6.2. Concerned about the enormous impacts
that would be caused by a proposed Wal-Mart Supercenter', YCG opposed the Wal-Mart
proposal in proceedings before the City of Yelm Hearing Examiner and the City Council.
Land Use Petition at 3-S, ~~( 6.1-6.6.
Initially, YeIm's planning staff determined that the proposal did not require
preparation of an environmental impact statement (EIS) as required by the State
Environmental Policy Act (SEPA). Id, at 8.1.3. YCG appealed this decision to the City's
Hearing Examiner. The staff also recommended that the City issue the land use permits for
the project.
The hearing Examiner held a lengthy quasi judicial appeal on both the SEPA and
land use permit issues. He denied YCG's appeal and approved the land use permits. Icl. at
8.1.4-5.1.5.
' The Wal-Mart Superstore is proposed to be 187,460 square feet in size with 822
parking spaces. It will include a grocery store, drive-through pharmacy, food service,
automotive repair facility and outdoor garden store.
$riclsli~n Newman Dold, LLP
Attorneys-at-Law
1{}01 Fourth Avenue, Suite 3303
YELM COMMERCE GROUP'S Tel. (20GW2G4 8600
RESPONSE TO MOTIONS TO DISMISS - 2 Fax (206) 2649300
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YCG filed an appeal of the Examiner's decision with the Yelm City Council. The
City Council held its own quasi judicial hearings.
On December 28, 2005 at the conclusion of the hearing, the City of Yelm City
Council denied YCG's appeal and approved Resolution No. 460 entitled. "Upholding the
Hearing Examiner's Approval of the Site Plan Review for the Construction of a Wal-Mart _
Supercenter." See Ex. B to the Land Use Petition.
The City neglected to immediately mail a copy of the decision to the appellant, YCG.
Instead, it was not until February 21, 2006 that the City of Yelm mailed a copy of the
resolution to YCG and other appellants who had been participating in the proceedings before
the Hearing Examiner anal City Council. See Declaration of Gregory May, Ex. 1 (envelope
showing postmark of mailed decision). YCG received the decision on February 23, 2006.
Id.
As discussed in more detail below, land use decisions like Yelm's may be challenged
in court within twenty-one days of the decision. The statute establishes three different
means for determining the date the decision is made {and hence the beginning of the 2I-day
clock). Two of them are pertinent here. The longer of the two provides that the 2l-day
clock starts three days after the decision is mailed. RCW 36.70C.040(4)(a}.
In this case, YCG did not know when or whether the City would mail the decision.
So, to be cautious, YCG initially sought to comply with the deadline that would apply if the ~
shorter deadline applied. The shorter deadline would be twenty-one days from the date the
Resolution was adopted. RCW 36.70C.040(4){b).
$ricklin Newman Dold, T.Lt'
Aitomeys-at-Law
1001 Fourth Avenue, Suite 3303
YELM COMMERCE GROUP'S Tel. (20GW 64-8600
RESPONSE TO MOTIONS TO DISMISS - 3 Fax (20G) 264-9300
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The twenty-first day following adoption. of the Resolution was January 18, 2006.
That morning, attorneys for YCG completed the Land Use Petition and all accompanying
documents challenging the Wal-Mart Supercenter and readied them far pick-up by their legal
messenger service. See Declaration of Daniel P. Draheim (Feb. 24, 2006). Daniel
Draheim, the legal assistant for BrickIin Newman DoId, LLP, called Northwest Legal
Support, a well known legal messenger service in Seattle, to pick up the documents for filing
in Thurston County Superior Court and service upon the City Administrator in the City of
Yeim. Id. at ¶ 2. The form supplied to Northwest Legal by Bricklin Newman Dold, LLP
clearly stated that the service and filing should take place by January 18, 2006 at 4:00 p.m.
Draheim Dec., Ex. 1.
In addition, Northwest Legal Support made the following assurances to its clients on
its website:
Serving process is not a job for amateurs. It requires absolute
precision and detail -- the kind of service you're assured
through Northwest Legal Support. We know the rules of
serving process, and we follow them without fail. You never
have to wonder whether the right person will be served or be
served before your statute runs out. Our registered process
servers are among the most experienced in the area .. .
Simply fill out your messenger slip and we will do the rest.
Id. , Ex. 2 (excerpt from website).
Northwest Legal Support confirms that it received the order from Bricklin Newman
Dold, LLP by 10:40 a.m. on January 18, 2006. See Declaration of Jim Hellurrls (Feb. 22,
2006). Although the papers were available by 10:40 a.m. ,the process server, Jerry Daniels,
Bricklin Newman Dold, LLP
Attorneys-ar-Law
1007 Fourth Avenue, Suite 3303
YELM COMMERCE GROUP'S ~ i zo6W~¢a~oo
RESPONSE TO MOTIONS TO DISMISS - 4 Fax (206} 264-9300
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did not pick up the documents from Bricklin Newman Dald, LLP until 1:30 p.m. See
Declaration of Jerry Daniels. Mr. Daniels describes the circumstances that followed:
I picked the papers up from the law offices of Bricklin,
Newman, DoId LLP at approximately 1:30 p.m. I was caught
up in traffic on the way to Thurston County Superior Court.
The filing was not completed until 4:09 p.m. I then
proceeded to Yelm to complete the service. I entered the
outskirts of YeIm at 4:30 p.m. This road was backed up with
stop and go traffic. This is the only road I know of that enters
Yelm from Olympia. I did not arrive at the City of Yelm,
105 Yelm Avenue West, Yelm, Washington 98579, until 5:05
p.m. The entrance to the City of Yelm building was locked
with, no one inside that would open the doors and no other
entrance open. I looked for a drop box or opening door to
securely leave the documents, but I could not locate one.
Id.
Although Mr. Daniels was not able to serve the City of Yelm on January 18, 2006,
Northwest Legal Support did not inform the Iaw offices of Bricklin Newman Dold until the
following day: January 19, 2006. See Declaration of Jim Hellums. Northwest Legal also
served the Yelm City Administrator on January 19, 2006 at 1:20 p.m. See Declaration of
Shelly Badger; Declaration of Janelle Thorstad (Feb. 24, 2006). Thus service was
accomplished by YCG long before the statute of limitations expired as measured from the
date the Ciry mailed its decision to YCG.
III. ARGUMENT AND AUTHORITY
Both the Ciry and Wal-Mart claim that Because the City Manager was not served
until January 19, 2006, YCG has failed to timely serve its Lancl Use Petition and it must be
dismissed. See YeIrn Mot. at 3; Wal-Mart Mot. at 5. This contention is incorrect. The
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS - 5
Bricklin Newman Dold, I.L,1'
Attorneys-a[-Law
IOOI Fou[th Avenue, Suite 3303
Seattle, WA 98154
TeE. (20G) 2G48G00
Far (20G) 2G4-9300
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respondents ignore the statutory provision that specifies that when a decision is mailed, a
statute of limitation period lasts for 21 days from the third day after mailing. This action
was fled and served well within that time frame. YCG has met all the requirements of
LUPA and its case should not be dismissed.
A. YCG Has Met All of the Filin and Service Re uirement in LUPA
Pursuant to LUPA, a Land Use Petition action is commenced by timely filing of the
Land Use Petition in Superior Court and service upon applicable respondents. See RCW
36.70C.040. Regarding fling and service, LUPA explicitly states:
(3) The petition is timely if it is filed and served on aII
parties listed in subsection (2) of this section within 21-days
of the issuance of the land use decision.
(4} For the purposes of this section, the date on which a
land use decision is issued is:
(a) Three days after a written decision is mailed by
the local jurisdiction or, if not mailed, the date on which the
local jurisdiction provides notice that a written decision is
publicly available;
(b) If the land use decision is made by ordinance
or resolution by a legislative body sitting in a quasi ;judicial
capacity, the date the body passes the ordinance or resolution;
or -
(c) If neither (a) nor (b} of this subsection applies,
the date the decision is entered into the public record.
(5) Service on the local jurisdiction must be by delivery of
a copy of the petition to the persons identified by or pursuant
to RCW 4.28.080 to receive service of process.
RCW 36.70C.040(3)-(5).
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS - 6
~3ricklin Newman Dold, LLP
Attorneys-at-Law
7001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (206} 2649300
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RCW 4.28.080(2) identifies the Mayor, City Manager, or during office hours, the
Mayor or City Manager's designated agent or the City Clerk, as the persons who must be
served when the lawsuit is filed against a City.
Here, Yelm adopted Resolution 460 on December 28, 2005. The City mailed that
Resolution to YCG on February 21, 2006. Based upon the plain language of LUPA, the 21-
day clock starts running "three days after a written decision is mailed." See RCW
36.70C.040(4)(a}. Thus, a 21-day clock started running on February 24, 2006 (three days
after mailing). YCG's petition had to be filed within 21 days of February 24, 2006 -- that
is, by March 17, 2006. Thus, YCG's petition filed on January 18, 2006 and served on
Yelm on January 19, 2006 is timely. '
As mentioned above, because it was uncertain whether the City would mail
Resolution 460, YCG acted conservatively to file and serve within 21 days of December 28,
2005 (the day the Resolution was adopted}, i.e. , by January 1$, 2006. But because the City
of Yelm then mailed the resolution, a longer statute of limitations, i.e., twenty-one plus
three days after mailing, as set forth in RCW 36.70C.040(4)(a}, is applies.
The motions to dismiss by the City and Wal-Mart ignore the statute of Iimitations
rule established in RCW 36.70C.040(4}(a). Instead, they address only RCW
36.70C.040(4)(~, which states that the date of an appealable decision is the date the
ordinance or resolution is passed. In (4)(a) and (4}(b), LUPA grovides alternative dates for
measuring the date of the land use decision. Here we have a situation where criteria from
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS - 7
$ricklin Newman Dold, LLP
Attorneys•at-Law
1001 Fourth Avenue, Suice 3303
Seattle, WA 98154
Tel. (206) 264.8600
Fax (206) 2649300
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both (4)(a} and (4)(b) are applicable -- a resolution (§{4)(b)) that was mailed (§(4)(a)} by the
Iocal jurisdiction.
There is no language in LUPA stating that subsection (4)(b) trumps subsection (4){a}
or that the three day mailing rule is inapplicable where an ordinance or resolution is in fact
mailed by a jurisdiction. In Washington, courts have long held that where it is questionable
as to which of two statute of limitations applies, the longer appeal period should apply. See
Akada v. Park 12-01 Corporation, 102 Wn.2d 717, 719, 695 P.2d 994 {1985) ("The general
rule is that when more than one appeal period is applicable, the longer appeal period should
be applied. "); Shew v. Coon Bax,Loafers. Inc., 76 Wn.2d 40, 51-52, 455 P.2d 359 (1969)
("If it were questionable which of the two statutes applied, the rule is that the statute
applying the longest period is generally used. "). Thus, the longer appeal period in
subsection (4)(a) applies.
In sum, because Resolution 460 was mailed by the City, the time limit to file and
serve the Land Use Petition did not commence until February 23, 200b. Thus, YCG's Land
Use Petition was timely filed and served and the motions to dismiss should be denied.
B. Washin ton Courts Have Invoked Their E unable Powers to Allow Cases to
Proceed on the Merits ~ -
Even if ignoring the longer limitations period provided by RCW 36.70C.040(4){a),
the Court still should deny the motions to dismiss. Under the unique facts of this case, the
Court should exercise its inherent equitable authority to consider the merits of YCG's
petition.
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS - 8
Bricklin Newman Dold, LLP
Attomcys-at-Law
1001 Fourth Avenue, Suite 3343
SeattEe, WA 98154
TeE. (206} 264-8600
Far (20G} 264.930D
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Courts have several times invoked their inherent equitable powers to forgive non-
compliance with jurisdictional requirements. See ScanneII v. State, 128 Wn.2d 829, 9i2
P.2d 49 (1996) (court retained jurisdiction despite late notice of appeal where a pro se
interpretation of an amended rule was "clearly an innocent mistake"}; State v. Ashbaush,
90 Wn.2d 432, 583 P.2d 126 (1978) ("...this court~as always retained, and occasionally
exercised in unusual cases, its authority to hear the case on the merits" despite "a failure to
meet jurisdictional requirements"); Moore v. Burdrnan, 84 Wn.2d 408, 413-14, 526 P.2d
893 (1974) (Court waived jurisdictional requirement of filing notice of appeal within
prescribed tune limit due to a postal delay that was not the fault of the appellant); Mvers v.
Harris, 82 Wn.2d 152, 155, 509 P.2d 656 (1973} (despite that filing fee was jurisdictional,
failure to pay was innocent mistake and court would hear case on the merits).
In Myers v. Harris, 82 Wn.2d at 155, a respondent argued that a petition for writ of
certiorari should be dismissed because the petitioner had failed to pay the filing fee within
the time limit for filing an appeal. Despite the Supreme Court finding that timely payment
of a filing fee to be a jurisdictional prerequisite for perfecting an appeal, the court denied
the motion to dismiss on the grounds that the mistakes made were done in good faith. Id.
at 1SS. The court found that timely payment was not made because of good faith mistakes
by lawyers and county clerks, that the provision was ambiguous and misleading, and that
the fees had been paid and no apparent injury or prejudice had resulted to respondents. Id.
Likewise, in Moore, the Court ruled that where appellant mailed her appeal on a timely
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS - 9
Bricklin Newman Dold, LLP
Attorneys-at-L.aw
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (20G) 2G4-8G00
Fax (20G) 2G4-9300
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basis and a delay at the post office occurred, the Court would not dismiss the appeal due to
untimeliness, a normally jurisdictional requirement. Moore, 84 Wn.2d at 412-14.
Here, under similar reasoning, it would be appropriate to allow YCG's petition to
proceed to the merits. YCG did everything within its power to ensure that the Land Use
Petition was timely filed and served. It provided to a reputable messenger service2 a
complete Land Use Petition ready for service and filing by 10:40 a.m. on January 18, 2006.
Instead, for reasons beyond YCG's control, Northwest Legal Support did not pick up the
petition until 1:30 p.m. and then did not reach Olympia (only b0 miles from Seattle) for
another two and a half hours. Then, after Northwest Legal failed to comply with its
directive to serve the City before 4:00 p.m. on January 18, 2006, Northwest Legal did not
call Bricklin Newman Dold, LLP to tell them it had not done so. Instead, Northwest Legal
waited until the next day to tell Bricklin Newman DoId, LLP that service had not been
accomplished.
YCG acted reasonably and responsibly -- doing what it could -- to meet any deadline
if it were to occur on January 18, 2006. Most attorneys in this State rely on legal
messengers to accomplish filing and service deadlines. The LUPA petition was ready to be
served and filed more than six hours before the City closed at 5:00 p.m. on January 18,
a Northwest Legal Support, a service Bricklin Newman Dold had used for years,
advertised on its website that it knows the rules of serving process and follows them without
fail. Draheim Dec., Ex. 2. indeed, the website stated: "you never have to worry whether
the right person will be served or will be served before your statute runs out ...Simply fill
out your messenger slip and we will do the rest. " Id. Bricklin Newman Dold no longer
employs Northwest Legal Support.
Bdckiin Newman Dotd, LLP
Attorneys~t-Law
t00i Fourth Avenue, 5wte 3303
YELM COMMERCE GROUP'S r i iosj~ ~a.a o0
RESPONSE TO MOTIONS TO DISMISS - 10 'Fax (206) 264930D
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2006. YCG should not be penalized because a messenger service did not do what it
promised it would do and then did not responsibly keep Bricklin Newman Dold informed
as to what was happening regarding service of the Land Use Petition.3
In addition, neither Wal-Mart nor the City can demonstrate any harm. There is no
claim that WaI-Mart did not receive proper` notice of the Land Use Petition aS required by
LUPA. The City received the Land Use Petition by 1:20 p.m. on January 19, 2006 -- four
or five hours after the City opened its doors for business on that day. There is no showing,
nor could there be, that a delay in serving the City a mere four to five hours jeopardized the
City's ability to respond to or defend against the Land Use Petition.4 Based on these
circumstances, this Court should use its equitable powers to review this case on the merits.
IV. CONCLUSION
Far the above reasons, this Court should deny the motions to dismiss. Under the
express language of LUPA, the Land Use Petition was timely filed and served on the City
of Yelm. Moreover, if necessary, the Court should use its equitable powers given the
circumstances to consider the merits of YCG's petition, not dismiss it.
s Had the~Northwest~Legal Support alerted Bricklin Newman Dold at 5:00.}~.m. on
January 1$, 2006 that they had not reached City Hall in time, service might still have been
accomplished that day. Service on the Mayor, Ciry Manager or City Clerk did not have to
occur at City Hall. Any of these people could have been served at home or anywhere else
they might be found that evening. But Northwest Legal Support compounded its errors by
making no effort of that type and not checking with Bricklin Newman Dold to get further
instructions .
a Under LUPA, the first official opportunity a respondent has to raise issues with a
Land Use Petition is at the initial hearing which is held 35-50 days after filing of the
petition. RCW 36.70C.0$0. There is no question that the loss of four to five hours out of
the -- at least -- 35 day time period the City has to respond has not caused it any harm.
- $ricklin Newman Daid, LLP
Attorneys-at-Gaw
1001 Fourth Avenue, Suite 3303
YELM COMMERCE GROUP'S r 20GW b4-SG00
Fax ~(20G) 2fi49300
RESPONSE TO MOTIONS TO DISMISS - 11
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Dated this ~ i day of February, 2006.
Respectfully submitted,
BRICKLIN NEWMAN DOLD, LLP
By:
YCG1SuperiorlResponse to Motions to Dismiss
YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS - 12
David A. Brici~lin, WSBA No. 7583
Jennifer A. Dold, WSBA No. 23$22
Attorneys for Yelm Commerce Group
Bricklin Newman Dold, LLB'
Attorneys-at•Iaw
]001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 2b4-8600
Fax (206) 2b4-9340
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The Honorable Paula Casey
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
v.
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
NO. 06-2-00103-3
DECLARATION OF DILIGENCE
BY JIM HELLUMS
DECLARATION OF DILIGENCE BY JIM HELLUMS - 1
Bricklin Newman Dold, LLP
Anomeys-at-Law
9001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (20G) 2G4-SG00
Fax (20G) 2G4-9300
No.
DECLARATION OF DILIGBNCE
STATE OF V~ASHINGTON
COUNTY OF RING
ss.
The undersigned, being fast duly sworn on oath deposes and says: That he/she is now and at all times herein
mentioned was a citizen of the United States, over the age of eighteen years, not a party to or interested rn the
above entitled action and competent to be a witness therein.
That on: the 18th day of January, 2005 @ 10:40 AM, the fallowing document(s): were received for service on .
After due inquiry and diligent search, server(s) were unable to find said defendant(s) in the State of Washington
for the following reason(s):
On 1118/06, N.W. Legal Support recieved a workorder request. The request was from the Law Offices of
13ricklin, Newman, Dodd, LLP. They requested N.W. Legal Support to pick up documents from their
offices. it ile the documents in Olympia, and then serve a copy of the documents to the City of Yelm by
4pm on 1118105. N.W. Legal Support assigned the workorder to Jerry Daniels, a Legal Messenger. N.W.
Legal Support was notified by Jerry Daniels that he had been delayed and had not picked up the
documents from liricklin, Newman, Dodd, LLP until I:30pm. Jerry Daniels informed N.W. Legal
Support that he was also delayed in traf5c an the way to file the documents in Olympia. Jerry told the
dispatcher at N.W. Legal Support that he had not been able to 5le the documents in Olympia until
4:09pm. Jerry told N.W. Legal Support that he was on his way to Yelm to serve a Sled set of the
documents to the City of Yehn. At 4:45pm Jerry called and informed N.W. Legal Support that he was
now on the road into YeIm, bat that the road was backed up with stop and go traffec. At S:15pm, Jerry
Daniels called and informed N.W. Legal Support that the City of Yelm offices were closed when he
arrived at S:OSpm, and that he was unable to get inside the building. Jerry stated that there was no drop
bog recepticle ar secure place to leave the documents. N.W. Legal did not inform the Law Offices of
Bricklin, Newman, Dodd, LLP until the following day 1/19106 that the job had not been completed as
requested on 1/i8/06.
I declare under penalty of perjury under the
Hate:
Service Fee:
Return Fee:
Mileage Fee:
Misc. Fee:
Total Fee:
and
oce Server
egal Support, lnc.
200 West Thomas Street
Seattle, WA 98I I9
2i06.223.942~6~
~~~~ iijl l~I ~ ~~ ~ ~ I~
306418
the foregoing is true
d!~ niw.~~/~9P"'f
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The Honorable Paula Casey
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
v.
CITY OF YELM; PACLAND, INC. ; and
WAL-MART STORES, INC.
NO. 06-2-00103-3
DECLARATION OF DILIGENCE
BY JERRY DANIELS
DECLARATION OF DILIGENCE BY JERRY DANIELS - 1
$ricklin Newman llold, LLP
Attorneys-at-Law
1061 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (20G) 264-8G00
Fax (206) 2G4-9300
No.
DECLARATION OF DILIGENCE
STATE OF WASHINGTON
COIINTY OF xING
ss.
The undersigned, being fast duly sworn on oath deposes and says: 'I7zat he/she is now and at all times herein
rnentioned was a citizen of the United States, over the age of eighteen years, not a party to or interested in the
above entitled action and competent to be a witness therein.
"That on the I8th day of January, 20Ub (a; 10:40 AM, khe following document(s): were received for service on ,
After due intluiry and diligent search, server(s) were unable to find said defendant(s) in the State of Washington
for the following reason(s):
On 1118106 I Jerry Daniels recieved a workvrder request. I eras insixucted by the dispatcher at N.W.
Legal Support to pick up documents at the Law Offices of Bricklin, Newman, Dodd, LLP. The request
was to file a Summons, Land Use Petition and Declaration of Service at Thurston Co. Superior Court by
4pm on 1!18!06. The request also indicated I was to serve the City of Yelm with the filed documents the
same day. I picked the papers up from the Law Offces of Bricklin, Newman, Dodd, LLP at
approximately 1:30pm. I was caught up in traffic on the way to Thurston County Superior Court. The
filing was not completed until 4:09pm. I then proceeded to Yelm to complete the service. I entered the
outskirts of Yelm at 4:30pm. This road was backed up with stop and go traffir. This is the only road I
knave of that enters Yelm frown Olympia. I did nvt arrive at the City of Ye1m, lOS Yehn Avenue West,
Yeim, Wa. 98579., unti15:05pm. The entrance to the City of Yelm building was locked with no one inside
that would open the door, and no other entrance open. I looked for a drop box or opening in the doors to
seemly leave the documents, but I could not Locate one.
I declare under penalty of perjury under the laws of the a of W hingt at the foregoing is true
a Corr
Date : ~~ J aniels _ -
gi Bred Process Server
Service Fe $ L1C 3C $F: U507$41, Ding CDnnty
Return Fee: $
Mileage Fee: S NW Legal Support, Inc.
Misc. Bee: S 200 West'1'homas Street
Total Fee: $ Seattle, WA 98119
246.223.9426
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The Honorable Paula Casey
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
v.
CITY OF YELM; PACLAND, INC. ; and
WAL-MART STORES, INC.
NO. 06-2-00103-3
DECLARATION OF SERVICE BY
JANELLE THORSTAD
DECLARATION OF SERVICE BY JANELLE THORSTAD - 1
Bricklin Newman Dold, LL.P
Attorneys-at-Law
1001 Fourth Avenue, Suite 3303
Seattle, WA 98154
Tel. (206) 264=8600
Fax (206) 264-9300
IN THE SUPERIOR COURT OF TAE STATE OF WASHINGTON IN AND FOR THURSTON
COUNTY
YELM COMMERCE GROUP, A WASHINGTON
NON PROFIT CORPORATION„
Plaintiff(s),
vs.
CITY OF YELM; PACLAND, INC.; AND
WAL-MART STORES INC.,
Defendant(s),
STATE OF i7ASHTNCiTON
ss_
COUNTX 08 KING
No.
DECLARATION OF SERVICE -
The undersigned, being first duly sworn on oath deposes and says: That he/she is now and at all times herein
mentioned was a citizen of the United States, over the age of eighteen years, not a party to ar interested in the
above entitled action and competent to be a witness therein.
That on the 19th day of January, 21106 @ DI:15 PM, at the address of IOS YELM AVE WEST, YELM,
within THURSTON County, WA, the undersigned duly served the following document(s): LAND USE
PETITION, SUMMONS, DECLARATION OF SERVICE in the above entitled action upon CITY OF
YELM, by then and there personally delivering a true and correct copy(ies) of the above docinnents into the
hands of and leaving same with SHELLY BADGER, GITY ADMINESTRATOR.
I declare ender penalty of perjury ander the laws of the State of Washington that the foregoing is true
77 ///''' and correct:
Date: G
Service Fee: $
Return Fee: $
Mileage Fee: $
Misc. Fee: $
Total Fee: $
Ja horstad
Process Server
NW Legal Support, inc.
200 West Thomas Street
Seattle, WA 98119
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The Honorable Paula Casey
Hearing Date: March 10, 2006
Hearing Time: 9:00 a.m.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington non-profit corporation,
Petitioner,
NO. 06-2-0010-3
v.
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
I, GREGORY MAY, declare as follows:
DECLARATION OF GREGORY
MAY
1. I am the President of the Board of Directors of YeIm Commerce Group. I
am competent to testify herein. I make this declaration based on my personal knowledge.
2. On February 23, 2006, I received Resolution 460 in the mail, at YCG's post
office box from the City of Yelm. The envelope containing the Resolution was postmarked
February 21, 2006. This is the first and only time that the City of Yelm mailed a copy of
the Resolution to YCG or me.
DECLARATION OF GREGORY MAY - 1
Brickiin Newman Dold, LLP
Attorneys-at-f.aw
1001 Fourth Avenue, Suire 3303
Seattle, WA 98754
Tel. (206) 2648600
Fax (206) 2649300
t FEB-24-Ofi 01:3ZPN FEt01A-Br i cki i a Ner~nan Dai d, LLP 206 2fi4 9300 t-230 P. 003/003 i=-958
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I declare under penalty of perjury ender the laws of the State of Washington that the
foregoing is true and correct.
Dated this 2 ~r' day of February, 2006, at ~ , Washington.
GREGORY AY
YCG15u~criotlGec of Cregory INay
DECLARATION OF GREGORY MAY - 2
Britkliw Newman Doll, LLi'
Attamcys-zr•T.xw
1001 Tvrounh Avicetuc, Suite 3303
5c~ak, WA 4$554
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City of Yefm
Resolution No. 460
A RESOLUTION UPHOLDING THE H>=,4RfNG EXAMINER'S APPROVAL OF Tl~~ SITir
PLAN REVIEW FOR THE CONSTRUC~'!ON OF A WAL-MART SUPERGENTER {SPR-
05-0091-YL AND APL-05-0203-YL)
WHEREAS, the Yeim City Council held a closed record hearing on December
28, 2005, regarding an appeal by the Yefm Commerce Group, Valentine Fyrst, Bili
Nicholls, and James Zukowski of the Hearing Examiner's approval of a site plan review
for the construction of a Wa!-Mart supercenter in Yelm; and
WHEREAS, the Council considered the appeal, responses to the appeal filed by
the City of Yelm Community Development Department and Wal-Mart, a reply by the
Yefm Commerce Group, et. al., the Hearing Examiner's decision, reconsideration
requests filed by James Zukcwslti, Bill Nicholls, Valentine Fyrst, and Ed L"Jiftsie, and the
Hearing Examiner's decision on reconsideration; and
WHEREAS, the Council reviewed the record before the Hearing Examiiner prior
to the closed record hearing, including audio from the three days of public hearing and
all written materials submitted to the Hearing Examiner as part of the record, an index of
which is included in the Hearing Examiner's report and decision; and
WHEREAS, the City- Council adopts the following Findings of Fact and
Conclusions of lraw in the matter of the Yeim Commerce Group's appeal:
Findings of Fact
1. PACLAND, Inc, on behalf of Wal-Mart Stores, inc. made application to the City of
Yelm fora site plan review approval for the construction of a Wal-Mart
supercenter in Yelm.
2. Grant Beck, the Yelm Community Development Director and SEPA Responsible
Official issued a Mitigated Determination of Nan-significance on June 7, 2005
and this determination was timely appealed by the Yelm Commerce Group.
3. Pursuant to Chapter '15.49 YMC, the Yefm Hearing Examiner held a duly
advertised open record hearing on the Yelm Commerce Group's appeal of the
MDNS. Pursuant to Chapter 15.49 YMC and Chapter 36.708 RCW, the open
record hearing included the underlying land use permit, a si#e plan review
approval. At the open record hearing, held on August 29t", Sat", and September
1 ~t, 2005, the Examiner accepted oral and written testimony on the site plan
review application and the appeal of the MDNS and expert testimony regarding
the appeal of the MDNS.
4. The Examiner issued on November 1, 2005, a report and decision which upheld
the issuance of the MDNS and approved the site plan review application, with
conditions as recommended by the Community Development Department. Four
requests far reconsideration were filed by James Zukowski, Valentine Fyrst, Bill
Nichols, and Ed Wiltsie on November 14, 2005. The Examiner denied the
reconsideration requests on November 18.
City of Yeim Resolution 460
management purposes, which is an Indus#ry standard and consistent with other
jurisdictions in Thurston County.
12, Utilizing average intersection level of service for signalized and unsignalized
intersections is an appropriate methodology for evalua#ing concurrency with the
established levels of service for the transportation system.
Conclusions of Law
A. .This matter comes before the City Council on an appeal filed by the Yelm
Commerce Group, Valentine Fyrst, Bill Nicholls, and James Zukowski of the
issuance of a site plan review approval by the Yelm Hearing Examiner. The
Hearing Examiners action to uphold the Responsible Ofi'icia['s SEPA Threshold
Determination was not appealed to the City Council.
B. The Yelm Community Development Department. and. Yelm .Hearing Examiner
applied the correct level of service calculation methodology for concurrency
purposes pursuant to Chapter 15.40 YMC and Section 36.70A_070 (6)(b) RCW.
The proposal meets concurrency requirements, including a level of service "F" in
the Yelm urban core.
C. The Hearing Examiner's decision was supported by substantial evidence
submitted through the land use hearing process, particularly by the expert
testimony of the Ci#y's transportation consultant, Perry Shea of Parametrix, Inc.
NOW, THEREFORE, BY IT RESOLVED by the City Council of the City of Ye[m,
Washington, that the Hearing Examiner's approval of a site plan review for the
construction of a Wal-Mart supercenter is upheld and the Hearing Examiner's report and
decision is hereby adopted.
PASSED and signed in authentication on this 26th gay of December, 2005
City of Yelm Resolution 460
Attes#:
~1 1G~ ~--
Agn P. Bennick, City Clerk
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The Honorable Paula Casey
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a
Washington nan-profit corporation,
Petitioner,
NO. 06-2-00103-3
v.
CITY OF YELM; PACLAND, INC.; and
WAL-MART STORES, INC.
DECLARATION OF SERVICE
STATE OF WASHINGTON }
ss.
COUNTY OF KING )
I, DANIEL P. DRAHEIM, under penalty of perjury under the laws of the State of
Washington, declare as follows:
I am the Iegal assistant for Bricklin Newman Dold, LLP, attorneys for Yelm
Commerce Group, petitioner herein. On the date and in the manner indicated below, I
caused YeIm Commerce Group's Response to Motions to Dismiss; Declaration of Dazziel
DECLARATION OF SERVICE - 1
$ricicIi~x Newman Dold, LLP
Attorneys-at-F.aw
1001 Foutth Avenue, Suise 3303
Seattle, WA 98154
Tel. (206) 264-8600
Fax (zo6) z6a_~3oo
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Daniels; Declaration of Service by Janelle Thorstad; and Declaration of Gregory May to be
served on:
Richard G. Phillips, Jr.
Owens Davies, P.S.
926 - 24th Way SW
P.O. Box 187
Olympia WA 98507
(Attorneys for City of Yelm)
[) By United States Mail
~By Legal Messenger
[ ] By Facsimile
[ ] By Federal Express/Express Mail
[ ] By E-Mail
John C. McCullough
McCullough Hill, PS
701 Fifth Avenue, Suite 7220
Seattle, WA 98104-7042
(Attorneys for PACLAND, Inc. and Wal-Mart Store, Inc.}
[ ] By United States Mail
~By Legal Messenger
[ ] By Facsimile
[ ] By Federal Express/Express Mail
[ ] By E-Mail
DATED this ~_ day of ~ , 200, at Seattle, Washington.
D L P. DRAHEIM
YCG15uperiorlDecsv
Bricklin Newrnari Dold, LLP
Attorneys-at-Law
' 1001 Fourth Avenue, Suitt 3303
Seattle, WA 98154
Tel. (20fi) 26¢8600
DECLARATION OF SERVICE - 2 Fax (206)264-9300