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12 - Response re Setting Dates1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ^ EXPEDITE ® Hearing is set Date: March 10, 2006 Time: 9:00 a.m. Judge/Calendar: Paula Casey SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY YELM COMMERCE GROUP, Petitioner, vs. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. Respondents. ~ NO.06-2-00103-3 I. CITY OF YELM'S RESPONSE TO MOTION FOR SETTING DATES FOR SUBMITTAL OF RECORD, BRIEFING SCHEDULE, AND HEARING/TRIAL ON THE MERITS I. INTRODUCTION The City of Ye1m submits this response to the plaintiffls Motion for Setting Dates for Submittal of Record, Briefing Schedule, and HearinglTriai on the Merits. II. PENDING MOTIONS The City of Yelm has noted a motion to dismiss the LUPA petition an the grounds that it was not timely served. The City of Yelm has also noted a motion to dismiss a portion ofthe LUPA petition on the grounds that the petitioners failed to exhaust their administrative remedies by failing to appeal the hearing examiner's affirmance of the MDNS to the City Council. The Court should probably defer entering a scheduling order in this matter until the motions have been resolved. The Court needs to reach the issues raised by this motion and response only if the Court denies the City of Yelm's motion to dismiss. CITY O1~ YELM'S RESPONSE TO MOTION FOR SETTING OWENS DAVIES, P.S. DATES FOR SUBMITTAL OF RECORD, BRIEFING SCHEDULE, 926 - 24th Way S W • P. O. Box 187 Olympia, Washington 98507 AND HEARING/TRIAL ON THE MERITS - 1 ~ /] © Phone: {360) 943-8320 ~ O C:1[41MBElYelmlPldgslResponsa LUPA Initial Having Mot.wpd ~ ~ \L~,1 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 Should the Court deny the motions to dismiss, the City will likely attempt to obtain immediate appellate review. Any scheduling order that may be entered by the Court should provide for sufficient time for the City to prepare, submit, and obtain a ruling from the Court of Appeals as to whether it will grant immediate appellate review. Assuming the Court of Appeals grants such review, this Court should stay these proceedings until the conclusion of that review. III. ANALYSIS The City of Yelm objects to the motion and order proposed by the petitioner. The petitioner's motion, ifgranted, would put burdens upon the City of Yelm that are not authorized by the Land Use Petition Act, and are unreasonable. In general, RCW 36.70C.110 sets forth a procedure for creating the record for judicial ~ review: {1) Within forty-five days after entry of an order to submit the record, or within such a further time as the court allows or as the parties agree, the local jurisdiction shall submit to the court a certified copy of the record for judicial review of the land use decision, except that the petitioner shall prepare at the petitioner's expense and submit a verbatim transcript of any hearings held on the matter. (2) If the parties agree, or upon order of the court, the record shall be shortened or summarized to avoid repraductian and transcription of portions of the record that are duplicative or not relevant to the issues to be reviewed by the court. (3) The petitioner shall pay the local jurisdiction the cost of preparing the record before the local jurisdiction submits the record to the court. Failure by the petitioner to timely pay the local jurisdiction relieves the local jurisdiction of responsibility to submit the record and is grounds for dismissal of the petition. RCW 36.70C.110. First, the petitioner's proposal fails to require the petitioner to reimburse the City of Yelm for the costs incurred in preparing the record before the record is submitted #o the Court. The City estimates that it will cast $1,440.00 far the City of Yelm to prepare the record. Declaration of CITY OF YI;LM'S RESPONSE TO MOTION FOR SETTING DATES FOR SUBMITTAL OF RECORD, BRIEFING SCHEDULE, AND HEARING/TRIAL ON THE MERITS - 2 C:1IA5MBElYeimlPidgslR~sppnse I,UPA Initial Hearing Mot.wpd OWENS DAMES, P.S. 926 - 24th Way SW • P. O. Box ] 87 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 26 27 28 Crrant Beck. The Court should order the petitioners to pay $1,440.00 as an advance against this expected cost before the City of Yelm begins preparing the record. The Court should further order the petitioners to reimburse the City for the actual costs the City certifies it incurs promptly after the Ci#y actually subzxlits the record. Second, petitioner's motion and order improperly requires parties to designate the testimony of witnesses that the plaintiff is required to transcribe. The Court should enter an order that puts the burden squarely upon the petition to transcribe the heaxings that occurred in this matter in their entirety. DATED this ~ day of March, 2006. OWENS DAVI'~5, P.S. Attorneys for City of Yelm CITY OF YEI..M'S RESPONSE TO MOTION;~'OR SETTING DATES FOR SUBMITTAL. OF RECORD, BRIEFING SCHEDULE, AND HEARING/TRIA,L ON THE MERITS - 3 C:\145MBEtYdmlPldgslResponse LUPA Initial }]caring Mot.wpd 8332 OWENS DAMES, P.S. 926 - 24th Way SW • P. O. Box I87 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimiie: (360) 943-6150 1 2 3 4 5 6 7 8 9 10' 11 12 13 14 15 16 i7 18 19 20 2i 22 23 24 25 26 27 28 ^ EXPEDITE ®^ Hearing is set ~' Date: March 10, 2006 Time: 9:00 a.m. JudgelCalendar: Paula Casey SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY YELM COMMERCE GROUP, Petitioner, vs. N0.06-2-00103-3 DECLARATION OF GRANT BECK CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. Respondents. 1. My name is Grant Beck. I am over 18 years of age and competent to testify as to all matters set forth herein. 2. I am the Community Development Director far the City of YeIm. 3. in my capacity as Con~rnunity Development Director, I have been closely involved in the City's review ofYehn'sproposed Wal-Mart Superstore. I am the "responsible official" who made the initial threshold determination under the State Environmental Policy Act. I also prepared a report that was submitted on behalf of the City to the Hearing Examiner. 4. I am familiar with the record that the City of Yelm will be required to produce to permit the Caurt to judicially review this matter. I estimate that the record will consist of ~ approximately 2,400 pages. QW&N3 DAVIES, P.S. 926 - 24th Way SW • P. O. Box 1$7 Olympia, Washington 98507 D$CI,ARATION OF GRANT $ECK - ]. ~__~ ~~'/ Phone: (360) 943-8320 C:ualtvlas\YelmlP4dgs5D« S«k.wpa , ~~, .'~ - E Facsimile: (360) 943-6150 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 18 19 ; 20 21 22 23 24 25 2b 27 28 5. In order to prepare this lnatter for judicial review, the City has made a single copy of the entire record, will bate stamp that copy, and will then make three or four duplicate copies of the bate stamped copy to provide to each counsel in this matter. 6. The City requests that it be reimbursed for the costs it incurs in prep acing the record at the rate of $O.1S per page. Assuming a 2,400 page record, the City therefore estimates that it will incur, and requests that it be reimbursed a total of $1,440.00 for the costs it incurs in preparing I the record. 7. In addition to the written record, the petitioners have the statutory obligation to prepare transcripts of the proceedings before the Hearing Examiner, and the proceedings before ~ the City Council. 8. The Hearing Examiner conducted a hearing at which live testimony was taken. Each of the individuals identified on the Iist attached as Exhibit A offered testimony at the hearing before the Hearing Examiner. I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. ~ ~ DATED this2-`~~{ day of ch, 200b, DECLARATION OF GRANT BECK - 2 C:114VygE1Ye1m~PldgslDec Beck.wpd OWENS DAVIES, P.S. 926 - 24th Way 5W • P. O. Box I87 Olympia, Washington 98507 Phone: (360) 943-8324 Facsimile: (360) 943-6]50 Yelrn Hearing Examiner Wal-Mart Public Hearing Oral Public Testimony Chris Nubbe Bettye Johnson Carolyn GiaMarco Tom Foley Richard Banach Louise Oliverio Eleanor Blackwell William ElIedge Christine Hartman Gregory May Bill Nicholls Whitewind Weaver Heidi Smith Sharon OIson Karen Dougherty Randi Sureros Alison Barker Connie Hald James Zukowski Marita Bott Don McCulloch Mary Kidd Eugene Ballard Stephan Elie Jean Handley Cozette 1{yrst Myrtle Kinney Adam Moore James Brigham Venitia Yost Valentin Fyrst Shirley Gennai Marjorie Leggett Larry Pesacreta Kellie Petersen Victoria Pesacreta William Hashim Jannette Ritchie Lisa Beverly Mike McGraw Debra Mauck Robin Lee EXH~BXT A Mia Glassy Urbano Eihan Linda Upham Kathy Gudgel Anita Marriott Lauren Martines Lynn Brewer Gwen Staples Gary Vallaningharn Wally Brown Francesca White Yelrn Hearing Examiner Wal-Mart Public Hearing Expert Testimony Dr. Marlon Bournet William Reid Heidi Haslinger William Spiels Rob Bernstein Erich Armbruster Ed Wiltsie, P.E. Charles Ellingson William Dunning, P.E. Kathryn Jerkovich Grant Beck Perry Shea, P.E.