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2021.0329.AP0003 210622 MMHOA - City of Yelm - AppealCity of Yelm Appeal PO Box 466 Yelm, WA 98597 mm-hoa@hotmail.com Page 1 of 6 Case: 2020.0286.PR0009 Date 06/22/21 Application 2020.0286.PR0009 Appealing 2020.0286.PR0009 NOD Final Date of Decision 06/01/21 Appellant McKenzie Meadows HOA PO Box 466 Yelm, WA 98597-0466 (360) 861-6482 mm-hoa@hotmail.com On behalf of David Johnstone McKenzie Meadows 9308 Prairie Wind St SE Yelm, WA 98597 (360) 250-0013 To whom it may concern, I, David Johnstone, a person having an ownership interest in property for which this decision effects, and as an authorized representative acting on behalf of a formally recognized governing body by the State of Washington to all property within its jurisdiction, would like to officially appeal and contest the decision to approve the subdivision alteration relative to the cited application – we demand an immediate stay, and ultimately its reversal. We have detailed unlawful procedure, asserted active covenants violations, and additional violations that would be present if this alteration were to be approved. We’ve pleaded with both – the applicant – and the City – to refrain from carrying out – or approving this alteration – until a remedy has been established. We’ve issued resolutions to clarify these violations and our position – we’ve issued a legally enforceable order halting any such action until remedied. The City’s negligence in not honoring our resolutions – and our order – is by itself substantial. The City of Yelm does not retain the authority to object to our lawfully executed covenants, conditions, restrictions, rules, and orders – and the City of Yelm’s refusal to honor them – or provide an objection to them following the proper legal channel through Superior Court – is justification that an appeal shall be granted. In addition to the overwhelming reasoning listed in the previous statement, we will proceed to detail countless discrepancies, inconsistencies, and unlawful procedures carried out that provide undeniable justification that this appeal is warranted and should be granted. Please see the following pages for the four additional grounds for appeal. City of Yelm Appeal PO Box 466 Yelm, WA 98597 mm-hoa@hotmail.com Page 2 of 6 Case: 2020.0286.PR0009 Grounds For Appeal #1 Reference Document Notice of Decision (“2020.0286.PR0009 NOD Final.pdf”) Section Findings of Fact, Item 2 Text McKenzie Meadows subdivision was recorded in May 2013 and identifies Tract B as a ‘Future Development Area’. This tract was designated for future development subject to a future street connection requirement, and due to the location of a single family exempt well serving an adjoining property. Surrounding properties are all developed residentially. The parcel is approximately 0.73 acres. McKenzie Meadows Facts And Conclusions FACTS 1. The statement that Tract B is defined as a ‘Future Development Area’ is factually incorrect – as that statement does not exist. 2. On 6/17/2021 we emailed Casey Mauck to ask for a reference for the findings of fact #2 regarding Tract B being labeled ‘Future Development Area’. Mr. Mauck responded that it relates to the plat of McKenzie Meadows, and it refers to the statement “Tract B to be reserved for future residential development”. 3. The statement “Tract B to be reserved for future residential development“ refers to a datum that omits information that is found at and is superseded by the reserved section defining all tracts found on page 1 under “TRACTS” 4. TRACTS defines Tract B as reserved for the Declarant for future residential development purposes. a. While you can’t assert that this datum is incorrect – It is, however, taken out of context and is missing information. This is logical – an argument against would suggest that the datum adjacent to it that states “Water Well Protection Covenant AFN 8205100029” would encompass the entirety of that covenant. b. Furthermore, provided that the parcel was never modified, this statement would essentially allow for perpetual development and construction. CONCLUSIONS 1. Words have meaning – and in this case, an omission of a very crucial piece of information has significant implications on how land use in this situation should be administered. 2. Future residential development of Tract B is reserved solely for the Declarant. 3. The role of Declarant no longer exists. 4. The right of future residential development for tract B has expired. NOTES The “plat of McKenzie Meadows” refers to the document as recorded under Thurston County Auditor’s File # 4337170 City of Yelm Appeal PO Box 466 Yelm, WA 98597 mm-hoa@hotmail.com Page 3 of 6 Case: 2020.0286.PR0009 Grounds For Appeal #2 Reference Document Notice of Decision (“2020.0286.PR0009 NOD Final.pdf”) Section Findings of Fact, Item 3 Text The Hearing Examiner provided clarification in November 2019 regarding the preliminary subdivision of McKenzie Meadows. The clarification mandated that Tract B could only be developed if the well head protection covenant is abandoned or if the plat is altered to allow development of the portion of Tract B not encompassed by the well head protective covenant. A well is located at this property and has not been decommissioned. The approval of this project requires that development within the well protection area meets Department of Health and covenant requirements. Any development on the parcel is subject to the protection requirements of the recorded well radius. McKenzie Meadows Facts And Conclusions FACTS 1. The hearing examiner did not exclusively provide clarification; the examiner overruled a decision. a. The examiner changed the ruling to allow development outside of the protected area as opposed to the previous ruling that the covenant must be abandoned to allow development – in or outside the protected area. 2. The examiner based their decision on an unpublished opinion by the Washington State Court of Appeals a. According to Washington State Court Rules, GR 14.1, unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court. Additionally, because this opinion was published before March 1, 2013, this opinion may not be cited as nonbinding authority, nor may this opinion be accorded such persuasive value by the citing party. 3. The examiner overruled a past decision based on fallacy and an illogical assertion a. The basis of the examiner’s decision was to state that interrupted use for a plat tract must be in accordance with conditions of approval and with notes on final plat – in essence, no liberties may be taken. b. Either the examiner is correct, and his ruling is irrelevant because the plat map does not explicitly state that there may be no development within the protected radius – or the hearing examiner is incorrect and provides zero justification for an overruling decision by basing their decision off an opinion without legal precedent – effectively ruling off a personal opinion and not law. 4. It does not appear that a process for appealing a hearing examiner’s decision was executed. a. Yelm municipal code does not provide an exclusion regarding who is required to file an appeal to overturn such a decision. CONCLUSIONS 1. The City and the hearing examiner uses covenants as a justification and basis for their decision – and abstraction of various documents. The plat map does not state an inability to build, only a protected radius – it does not state what protections are in place. An examination of the relative covenant would be the only justification for understanding what is protected or prohibited within this area. a. The City has taken a discriminatory and partial position regarding examining covenants and their application by ignoring the resolutions and stop-work order submitted with our public comment. 2. This overruling decision violates Yelm Municipal Code. ADDITIONAL COMMENTS Due to time constraints; not enough research on our part has been conducted with fact (#4) to fully understand the process for an examiner to overrule a past decision. With that being said, there does not appear to be any evidence that an appeal or other process was carried that provided oversight regarding this overruling decision. It would seem a hearing examiner has an immense amount of legal authority. There should be checks and balances in place for their decisions that require more than one individual authorizing and signing an opinion or determination with such potential for drastic implications. Even an HOA has more accountability than this. City of Yelm Appeal PO Box 466 Yelm, WA 98597 mm-hoa@hotmail.com Page 4 of 6 Case: 2020.0286.PR0009 Grounds For Appeal #3 Reference Document Notice of Decision (“2020.0286.PR0009 NOD Final.pdf”) Section Findings of Fact, Item 5 Text As required by Section 18.10.050 YMC, the Yelm Community Development Department mailed a Notice of Application to local and state agencies and surrounding property owners on March 12, 2021. In addition, the notice was published on the City’s website on March 12, 2021 and published in the Nisqually Valley News on March 25, 2021. McKenzie Meadows Facts And Conclusions FACTS 1. No public hearing for application “2020.0286.PR0009” was held. 2. Chapter 18.10.050 YMC (E) states: a. that an Administrative Subdivision application shall include notice posted on or around the land proposed to be subdivided in at least five conspicuous places designed to attract public awareness of the proposal. i. No such conspicuous notices were placed. b. the notice shall include notification that no public hearing will be held on the application unless requested within 21 days. i. No such statement was included in any notice. 3. RCW 58.17.095 states that an ordinance may authorize administrative review of preliminary plat without a public hearing provided the administrative review process notice shall: a. be posted on or around the land proposed to be subdivided in at least five conspicuous places designed to attract public awareness of the proposal. i. No such conspicuous notices were placed. b. include notification that no public hearing will be held on the application, except as provided by this section. i. No Notice included the statement that there would be no public hearing. c. include the procedures and time limitations for persons to require a public hearing and make comments. i. No Notice included the procedures and time limitations for a public hearing. 4. RCW 58.17.215 states that upon receipt of an application for alteration, the legislative body shall provide notice of the application to all owners of property within the subdivision. This notice shall either establish a date for a public hearing or provide that a hearing may be requested by a person receiving notice within fourteen days of receipt of the notice. a. No Notice included: i. a date for a public hearing. ii. the statement that a hearing may be requested by a person receiving notice within fourteen days of receipt of the notice. 5. The Notice states the time limitation for submitting public comments. a. This Notice does not include the procedures and time limitations for a public hearing. 6. The Notice states recipients may receive a notice of public hearing. a. This Notice does not state that: i. no public hearing will be held. ii. a hearing may be requested within 21 days. b. No notice about a public hearing was received. CONCLUSIONS 1. The City of Yelm and Community Development Department did not satisfy the requirements for a notice regarding an application for administrative subdivision as required by: a. Yelm Municipal Code b. Washington State law 2. The City of Yelm and Community Development Department approved an application that was executed in an unlawful manner that violated: a. RCW 58.17.095, RCW 58.17.215, 18.10.050 YMC NOTES The (“Notice”) refers to either the document (“2020.0286.PR0009 NOA.pdf”) or the classified placed on yelmonline.com titled “117618 Notice Notice of Application - 2020.0286.PR0009 The Yelm Community” “Notice Notice“ is not a misquote, the title for the notice on yelmonline.com did include a repeated word City of Yelm Appeal PO Box 466 Yelm, WA 98597 mm-hoa@hotmail.com Page 5 of 6 Case: 2020.0286.PR0009 Grounds For Appeal #4 Reference Document Notice of Decision (“2020.0286.PR0009 NOD Final.pdf”) Section Findings of Fact, Item 6 Text Pursuant to Section 58.17.215 RCW, the alteration of any subdivision in Washington requires an application containing the signatures of the majority of all persons having an ownership interest of lots, parcels, sites, or divisions in the subject subdivision to be altered. The McKenzie Meadows Homeowners’ Association includes in Article 16 Section 11 of their Declaration of Covenants, Conditions, & Restrictions (CC&R’s) a Waiver of Opposition to Continued Development of McKenzie Meadows. The finds that this covenant satisfies the requirements of Section 58.17.215 RCW. McKenzie Meadows Facts And Conclusions FACTS 1. The lawful requirement for signatures was not met. 2. This Waiver and its consent are only granted to the Declarant or Declarant’s successor. a. RCW 64.90.425 states that a Declarant’s successor is defined as the transferee of special declarant rights. 3. No declarant rights remain after the development period. a. A declarants special rights may only be transferred while the development period is active 4. The Waiver is erroneous and incomplete. 5. The Waiver’s final statement includes a reference to an article and section that does not exist. a. Because this section is missing, it is impossible to know the entire scope of how it should be applied. 6. Consent of this waiver explicitly and exclusively includes the ‘Owner’ of a ‘Lot’ 1 through 24. a. This is logical because if the previous statement were untrue – all properties within McKenzie Meadows would effectively be the Declarant’s successor. 7. Consent is not granted by the Homeowners’ Association. a. This is logical because this waiver only applies to the Declarant while the development period is active – at which point the Declarant would be in control of the Association – the Declarant would not oppose itself. 8. Findings of Fact #5 mentions the Waiver but then further states that no application has been received for ‘development’ on this parcel. a. Using our development waiver as justification to satisfy RCW 58.17.215 while in the same document declaring by the fact that the City does not classify this application to be relative to ‘development’ contradicts and invalidates the entire assertion. b. Either the City was using our waiver ambiguously without understanding it in its entirety and subsequently contradicted that assertion – or the City attempted to extrapolate its meaning without understanding the complexities of the content within. 9. RCW 58.17.215 states that if the alteration would result in the violation of a covenant, the application shall contain an agreement signed by all parties subject to the covenants providing that the parties agree to terminate or alter the relevant covenants to accomplish the purpose of the alteration of the subdivision or portion thereof. a. We have identified numerous covenant violations that have not been resolved. CONCLUSIONS 1. The approval of this subdivision alteration was not executed lawfully and is in violation of RCW 58.17.215. NOTES The (“Waiver”) refers to Article 16, Section 11 of the McKenzie Meadows CC&R’s. City of Yelm Appeal PO Box 466 Yelm, WA 98597 mm-hoa@hotmail.com Page 6 of 6 Case: 2020.0286.PR0009 CLOSING STATEMENTS As a volunteer representing this Homeowners’ Association, I have spent an exorbitant amount of time pouring over details trying to execute our procedures in the most legally sound, ethical, and correct way possible. I am extraordinarily unhappy my tax dollars are paying such high salaries for such ignorance while such an arduous effort on our part is all but ignored. As a board member, I am required to execute my role in good faith. You are denying us our ability to fulfill our commitment to our Association by ensuring proper procedure. You have approved a subdivision alteration that introduced three additional lots that explicitly state the intention of future development, and this has very real and costly consequences. The inevitable development of three new homes will add additional liabilities that we will not retain the authority to collect on relative to an annual assessment. We have no guarantee that our members will approve a grandfathered clause allowing future construction, the applicant’s plans for construction, or an amendment to our covenants to introduce them officially as members. Moreover, the antagonistic and careless approach by both the City and applicant has made our members worried that our Associations true purpose, to safeguard property value – in a completed and fully developed subdivision, will be impossible to fulfill with such disregard. This can be directly attributed to the decision being appealed. There were a series of resolutions that were provided in our public comment. These resolutions were drafted to condense and explain a complex scenario, as well as the various covenant violations that currently exist and that would exist if this application were to be approved. These resolutions intent were to clarify our governing documents concerning development. These resolutions were numbered 210216-01 through 210216-06 and included the following topics: Declarant, Development Period, Membership, Well Covenant, Subdivision Alterations, Undeveloped Land, Construction, Stop Work Order. With exception to the fineable amount listed for a violation of a stop-work order, zero liberties were taken within these resolutions. They are factual, true, and correct. There are no arguable statements. I want to state that the City at no point contacted any of the individuals who submitted for public comment, nor did they follow up with our Association at any point, for any reason. The City did not acknowledge these resolutions; they did not contest them, they did not factor these into their decision. This is a quite astonishing result of such a tiresome approach to explain to the City a series of facts that they should have independently concluded – this is a clear indication of the City’s disregard for this situation, bias, and discrimination. This level of ineptitude can really only be explained in one of two ways; gross incompetence and negligence or a more sinister nefarious motivation. The second justification for such a conclusion is unwarranted without evidence and is only posed as the logical explanation for the complete lack of due diligence or critical thinking on behalf of the City. There is such a discrepancy in required mental capacity and critical thinking that I don’t believe any individual involved in processing this decision is qualified or sufficiently motivated to provide adequate input. Either that, or there is a component to this we are unaware of – because this doesn’t smell right. I am requesting that no City employees who reviewed, worked on, or were involved in any way regarding this application be permitted to handle this appeal. I am also requesting that Yelm City Council review this case to determine if there is foul play involved and to answer why this level of incompetence is allowed to carry on with such important roles. Additionally, I am requesting that the hearing examiner reviewing this appeal not include the examiner who submitted the HE clarification dated November 26, 2019. It is common to factor in one’s own bias and ability to be impartial when ruling on their own legal decision. There would be a clear conflict of interest, and It would be unethical and highly inappropriate for this individual to justly rule on a contested decision of their own. I also want to state that I have very little faith that we will receive a fair and honest review of the facts stated in our appeal, nor do I feel our appeal will be successful based on the grounds of our need to file an appeal for such an unwarranted decision. At the very least, do us the favor of a quick ruling so that we can move up the chain – have this overruled – so we can attempt to limit the fallout from this decision. Finally, I will conclude this appeal by first stating that we won’t be asking for you to acknowledge our information or to grant us an appeal – the need for this appeal rests on your shoulders, not ours. Competently analyzing the information provided and granting this appeal needs to be a decision the City makes solely on its own. We are not seeking mercy; we are demanding an objective and lawful decision. We’ll see if that’s possible. I, David Johnstone, on behalf of the McKenzie Meadows, the Appellant, have read this appeal and believe the contents to be true and correct. 06/22/21 David Johnstone, President Date For more comments, notes, information, please see: “210622 MMHOA - City of Yelm - Appeal [Exhibits].pdf”