BEFORE THE CENTRAL PUGET SOUND GROWTH

MANAGEMENT HEARINGS BOARD

LAURELHURST COMMUNITY CLUB, et al.,
Petitioners,
vs.
CITY OF SEATTLE, a municipal corporation; UNIVERSITY OF WASHINGTON, an agency of the State of Washington
Respondents. / NO. 03-3-0016 (“Laurelhurst II”)
REPLY ON PETITIONERS’ REQUEST FOR RECONSIDERATION/MODIFICATION

In our request for reconsideration or modification, petitioners pointed to two significant problems with the Board’s December 5, 2003 Order. First, it requires petitioners to present their case in chief without knowing the scope of the record upon which the Board’s review will occur. Second, it provides petitioners with an unreasonably short period (five days) in which to respond to the “hundreds” of documents the City and University have said they will offer as “rebuttal evidence”. The City and University have now responded, arguing that respondents are entitled to review (for three weeks) petitioners’ case in chief before identifying the rest of the record – which they should have indexed in the first place.

Under the Growth Management Act (“GMA”) – as under the Administrative Procedures Act (“APA”) – issues regarding the record are typically required to be resolved prior to presentation of either parties’ presentation of its case. See, e.g., WAC 242-02-520 (“Record”) (“Within 30 days of service of a petition for review, the respondent shall file with the Board and serve a copy on the parties of an index of all material used in taking the action which is the subject of the petition for review.”). The Board’s October 24, 2003, Prehearing Order established the procedures for motions to supplement the record, as well as for opposing such motions and the submittal of any rebuttal evidence. Prehearing Order at 3. This was all to take place – by design – several weeks prior to the date by which petitioners were required to file their prehearing brief.

In this matter, following discussion at the prehearing conference, the Board expressly exercised its discretion (pursuant to WAC 242-02-540) to appropriately require that all new or supplemental evidence be provided no later than November 21, 2003.[1] However, the Board’s latest order goes to an extreme opposite approach, with petitioners’ brief due three weeks before the City and University even have to submit the rest of the record they previously held back. In other words, contrary to GMA and APA principles, the record here is like a moving target, with petitioners having to guess at what the City and University will choose to ultimately include in the record (which they had the burden of producing back on October 4, 2003).

Respondents’ assertion (Response at p. 2) that their proposed “schedule” will “ensure that the Board and parties are reviewing a complete record with respect to the specific arguments that arise in prehearing briefing” is obviously and directly contradicted by their proposal that petitioners be required to file their prehearing brief (and now their reply brief) before the Board ever rules on the scope of that “complete record.” Disappointed that the Board agreed that the sparse records they filed with the Board required supplementation, the City and University have apparently lost sight of the fact that this matter is nonetheless still based on “the record.” They cite no authority for their assertion that – in this proceeding on the record -- they should be permitted to review petitioners’ case in chief (for three weeks) prior to submitting the rest of that record. If more evidence is to be added to the City’s and University’s “records,” petitioners are entitled to know what it is before we present our case.

Respondents note that they would not object if the Board allowed petitioners to include any objections we might have to the rebuttal record one week later, as part of our reply brief. For practical purposes, of course, this is what would have been necessitated by the Board’s December 5th order, anyway. Five (5) business days was already a very short period of time to prepare and file a reply brief, let alone incorporate into that reply a response to the submittal of what the City and University have so far only characterized as “hundreds” of documents. The schedule now proposed by respondents would put off the Board’s decision on the scope of the record until long after the parties have presented their cases – a notion that is antithetical to established principles for judicial or quasi-judicial review of actions taken by local governments, particularly where procedures for record supplementation have been laid out in a Prehearing Order.

The Board’s December 5, 2003, Order, and the schedule it establishes, unfairly prejudices petitioners’ presentation of their case on the merits. Such a schedule is not designed to further the principles of justice, and it will enable respondents to “blindside” petitioners with purported record materials that could and should have been identified long ago. Respondents should not be permitted to turn to their advantage the fact that they provided the Board (and petitioners) a wholly incomplete record in the first place.

In light of the foregoing, and in light of the additional time provided respondents to respond to this motion, and (now) proximity to the holidays and previously scheduled family holidays, petitioners now respectfully request the Board to modify its Order to: (1) require respondents to submit any new rebuttal documents no later than December 24, 2003; (2) provide petitioners with at least seven business days (until January 7, 2004) in which to object and/or further rebut respondents’ new documents; (3) adjust the briefing schedule to provide petitioners no less than seven days following a final decision on the record – and on the Motion to Dismiss -- to submit their prehearing brief; and (4) adjust the remainder of the schedule accordingly.

Dated this _____ day of December, 2003.

HELSELL FETTERMAN LLP
By
Peter J. Eglick, WSBA #8809
Jane S. Kiker, WSBA #21586
Attorneys for Petitioners

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REPLY ON PETITIONERS’ REQUEST FOR
RECONSIDERATION/MODIFICATION - 1

[1]Petitioners’ first identified missing documents needed to supplement the record on November 14, 2003. Respondents’ November 21, 2003 opposition to petitioners’ motion indicated that respondents knew then -- in mid-November -- which documents they might use in response if petitioners’ motion were granted. Yet, respondents request several more weeks in which to submit the rest of the record. There is no reason why respondents should be given until January 9, 2004 to do so -- working severe prejudice on petitioners’ case.