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13 - Wal-Mart's Response Setting Dates1 2 3 ' 4 5 6 7 8 9 10 11 12 13 la is 16 17 18 19 20 21 22 23 24 zs 26 27 28 Hearing is set: Date: March 10, 2006 Time: 9:00 a.rn. Judge: Paula Casey D ~ J MAR 0 6 2006 OWENS DAMES, P.S. IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THURSTON COUNTY YELM COMMERCE GROUP, a Washington non-profit corporation, Petitioners, vs. CITY OF YELM; PACLAND, INC.; and WAL- MART STORES, INC., Respondents. No. 06-2-00103-3 WAL-MART'S RESPONSE TO MOTION FOR SETTING DATES FOR SUBMITTAL OF RECORD, BRIEFING SCHEDULE, AND HEARING/TRIAL ON THE MERITS I. INTRODUCTION Wal-Mart Stores, Inc. ("Wal-Mart") submits this response to the petitioner's Motion for Setting Dates far Submittal of Record, Briefing Schedule, and Hearing/Trial on the Merits. This is a Land Use Petition Act ("LUPA"} appeal commenced under Chapter 36.70C RCW. Wal-Mart and the City of Yelm leave noted motions to dismiss this LUPA appeal on the ground that it was not timely served. The City of Yelrrl has also noted a motion to dismiss a portion of the LUPA petition on the ground that the petitioner failed to exhaust its administrative remedies by failing to appeal the hearing examixler's affirmance of the MDNS to the City MCCULLOUGH HI„LL, PS Vd.AL-MART'S RESPONSE TO SCHEDULING MOTION 701 Fifth 1,venue, Suite 7220 :IWAt_-MAR'F"SYelmll.UPAIResponse to Scheduling Motion.doc ~~~ Seattl8, Washington 98104-7042 C ~E ~ j J~M 206.812.3388 `~~ U 206.812.3389 fax 1 2 3 4 s 6 s 9 to 11 12 i3 14 15 l6 17 18 19 20 zi 22 23 24 2s 26 27 2s Council. The Court should grant these motions, which would obviate the need for entry of an order on scheduling. II, ANALYSIS Wal-Mart objects to petitioner's motion and proposed order on scheduling because there is no "good cause" in this case that justifies a significant extension of LUPA's expedited briefing and hearing schedules. The City of Yelm has already compiled the administrative xecord, and there is no reason a hearing in this case could not be held within 60 days of the date set for submitting the local jurisdiction's record as required by RCW 36.70C.090. RCW 36.70C.110 provides that the administrative record shall be produced by the local government within 4S days of the initial hearing. The administrative record has already been prepared in this case, so there is no reason to provide 45 days for its production. The City could produce the administrative record in this case by March 31, 2006. Also by that date, a verbatim transcript of proceedings could be made available. Three weeks from March 31, 2006 is ample time for the petitioner to prepare its opening brief in this case, so the petitioner's opening brief would be due April 21, 2006. Response briefs would be due on May 12, 2006, and the Reply would be due on May 26, 2006. If the Court's schedule would accommodate a hearing on May 31 or soon thereafter, this would be 60 days from the date the record was produced, which is the schedule contemplated in RCW 36.70C.090. III. CONCLUSION This LUPA appeal must be dismissed because the petitioner failed to comply with LUPA's jurisdictional service requirements by failing to timely serve the City of Yelrn. In the WAL-MART'S RESPONSE TO SCHE©ULING MOTION L1WAf--MAR'1lYe1mILUPA1Responsa to Scheduling Motion.doc 2 MCCULLOUGH HILL. PS 701 Fifth Ilvenue, Suite 7220 Seattle, Washington 98104-7042 206.812.3388 206.812.3389 fax 1 z 3 4 S 6 7 8 9 to 11 lz i3 14 1S 16 17 18 19 20 21 z2 23 24 25 26 27 28 event that the Court enters a briefing schedule, there is no good cause in this case to deviate from LUPA's statutory briefing and hearing timelines. DATED this ~tti day of March, 2006. MCCULLOUGH HILL PS /~ By: John C. cCullough, WSBA #12740 Courtney E. Flora, WSBA #29847 Attorneys for Respondents Wal-Mart Stores, Inc. and PacLand, Inc. WAL-MART'S RESPONSE TO SCHEDUT.ING MOTION LIWAL-MARTlYeImILUPA1Response to Scheduling Motion.doc 3 MCCULLOUGH .,HILL, ~S 701 Fifth Avenue, Suite 7220 Seattle, Washington 98104-7042 20b.812.3388 206.812.3389 fax