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APP-2019-0002 Decision Final.pdf Page 1 of 13 CITY OF SPOKANE VALLEY HEARING EXAMINER Re: Appeal of SEPA Determination for EGR-2018-0074/SEPA-2018-0019 ROBERT PHELPS Appellant, v. CITY OF SPOKANE VALLEY, Respondent, v. WHIPPLE CONSULTING ENGINEERS, Applicant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) FINDINGS, CONCLUSION, AND DECISION FILE NO. APP-2019-0002 I. SUMMARY AND DECISION Hearing Matter: Appeal of a Mitigated Determination of Nonsignificance (MDNS) made pursuant to the State Environmental Policy Act (SEPA) for an Engineered Grading (EGR-2018-0047) and Floodplain Development (FPD-2018-0002) permit application on parcel number 45333.1807. Decision: The Appeal of the MDNS is denied. II. FINDINGS OF FACT BACKGROUND INFORMATION Appellant: Robert Phelps 11317 East Sundown Drive Spokane Valley, WA 99206 Represented by: Albert Merkel 3927 South Sunderland Drive Spokane Valley, WA 99206 Property Owners: Dennis and Melissa Crapo 2602 North Sullivan Road Spokane Valley, Washington, 99216 Page 2 of 13 Applicant: Whipple Consulting Engineers 21 South Pines Road Spokane Valley, WA 99206 Owners/Applicant Represented by: Taudd Hume, Attorney at Law Parsons/Burnett/Bjordahl/Hume, LLP Steamplant Square 159 S. Lincoln Street, Suite 225 Spokane, WA 99201 Respondent: City of Spokane Valley 10210 East Sprague Avenue Spokane Valley, WA 99206 Represented by: Erik Lamb, Deputy City Attorney Aziza Foster, Legal Intern City of Spokane Valley 10210 East Sprague Avenue Spokane Valley, WA 99206 Date of Decision Being Appealed: April 17, 2019 Date of Appeal: May 3, 2019 Hearing Date: June 10, 2020 Testimony: Albert Merkel 3927 South Sunderland Drive Spokane Valley, WA 99206 Ann Cary 11317 East Sundown Drive Spokane Valley, WA 99206 Dave Johnson 11307 E. Sundown Drive Spokane Valley, WA 99206 Mike Reents 11219 E. Sundown Drive Spokane Valley, WA 99206 Rudy Werle 11311 E. Sundown Drive Spokane Valley, WA 99206 Shawn Johnson 11311 E. Sundown Drive Spokane Valley, WA 99206 Martin Palaniuk, Planner City of Spokane Valley Building and Planning Division 10210 E Sprague Avenue Spokane Valley, WA 99206 Henry Allen, Senior Engineer City of Spokane Valley Building and Planning Division 10210 E Sprague Avenue Spokane Valley, WA 99206 Page 3 of 13 Exhibits: • Exhibit 1 – Appeal Application • Exhibit 2 – Appeal Narrative • Exhibit 3 – Notice of Hearing • Exhibit 4 – City’s Motion Requesting Briefing Schedule • Exhibit 5 – Appellant’s Response to City’s Motion and Request for Continuance • Exhibit 6 – City’s Response to Appellant’s Request for Continuance • Exhibit 7 – Applicant’s Response to Appellant’s Request for Continuance • Exhibit 8 – Prehearing Order Setting Briefing Schedule and Denying of Appellant’s Request for Continuance • Exhibit 9 – Appellant’s May 1, 2019, Email • Exhibit 10 – Appellant’s Prehearing Brief, including o Exhibit 10A – Attachment 1, Email by Dave Johnson o Exhibit 10B – Attachment 2, Photo by Ann C. 2019, Wildlife in Area o Exhibit 10C – Attachment 3, Photo by Mike R. 2019, Property Flooding o Exhibit 10D – Attachment 4, Photos by Mike R., Rain Last Week and Dirt Pile • Exhibit 11 – City’s Prehearing Brief, including o Exhibit 11A – Declaration of E. Lamb o Exhibit 11B – Declaration of J. Nickerson o Exhibit 11C – Declaration of M. Palaniuk • Exhibit 12 – Applicant’s Prehearing Brief • Exhibit 13 – Hearing Examiner’s Hearing Agenda • Exhibit 14 – Hearing Examiner’s Findings of Fact, Conclusions of Law, and Decision in File No. APP-2018-0001 • Exhibit 15 – Declaration of Dennis Crapo in Opposition to Appellant’s SEPA Appeal • Exhibit 16 – Appellant’s Presentation • Exhibit 17 – Floodplain Development Plans, including SWPPP/Erosion Control Plan and Haul Plan • Exhibit 18 – Grading Permit EGR-2018-0074 • Exhibit 19 – Floodplain Development Permit FPD-2018-0002 Procedural History 1. Dennis and Melissa Crapo own a 5.86-acre parcel of land (the “Project Site”) described as Lot 7 of short plat SHP-09-10, in the City of Spokane Valley, Washington. The Project Site is designated as Tax Parcel No. 45333.1807. 2. The Project Site is generally located west of the Y intersection of East Sands Road and South Bowdish Road, in the City of Spokane Valley. See Exhibit 2 (Attachment #1). It is situated in the Southwest ¼ of Section 33, Township 25 North, Range 44 East, Willamette Meridian, Spokane County, Washington. See id. 3. On or about October 4, 2018, Whipple Consulting Engineers (the “Applicant”), acting on behalf of the property owners, submitted applications for a grading permit (EGR-2018-0047) and a floodplain development permit (FPD-2018-0002) to the City of Spokane Valley (the “City”). See Exhibits 18 and 19. In support of the permit Page 4 of 13 applications, the Applicant submitted an environmental checklist in accordance with chapter 43.21C RCW (SEPA) and Chapter 21.20 Spokane Valley Municipal Code (SVMC). See Exhibit 15 (Dec. of M. Palaniuk ¶ 3); see also Exhibit 11B (Dec. of J. Nickerson ¶ 3). The City assigned file number SEP-2018-0001 to the environmental review process associated with the permits. 4. The owners proposed to remove approximately 3.4 acres of the Project Site from the Special Flood Hazard Area (SFHA) through a Conditional Letter of Map Revision based on Fill (CLOMR-F), per the regulations of the Federal Emergency Management Agency (FEMA). See Exhibits 18 and 19; see also Exhibit 2 (Attachment #1). To do so, the owners proposed to make drainage improvements as well as to place approximately 29,000 cubic yards of fill material on the Project Site, thereby elevating a portion of the site out of the SFHA. See id.; see also Exhibit 15 (Dec. of M. Palaniuk ¶ 3). This is the only development project (the “Project”) being proposed by the property owner at this time. See Exhibit 15 (Dec. of M. Palaniuk ¶ 3). 5. On March 19, 2019, the Applicant submitted an updated SEPA Checklist to the City. See Exhibit 15 (Dec. of M. Palaniuk, Ex. 1). The City determined that the updated Checklist was sufficient for purposes of evaluating the potential impacts of the Project. See Exhibit 15 (Dec. of M. Palaniuk ¶ 4). The City conducted its environmental review, in due course, based upon the updated Environmental Checklist. See Exhibit 15 (Dec. of M. Palaniuk ¶¶ 5-7). 6. On April 17, 2019, the City of Spokane Valley issued an MDNS for the Project. See Exhibit 2 (Attachment #1). The City’s decision to issue the MDNS for SEP-2018-0019 constituted its “threshold determination” on the Project. The MDNS provides that any appeal of the MDNS must be submitted within fourteen days of the date of its issuance. See id. Accordingly, the appeal of the MNDS was due on or before May 3, 2019. 7. On May 3, 2019, Mr. Robert Phelps submitted an appeal of the MDNS. See Exhibit 1. The appeal identifies Mr. Albert Merkel as the Appellant’s representative. See id. The appeal was filed, and the appeal fee was paid, on May 3, 2019, the fourteenth day after the issuance of the MDNS. See id. Therefore, the appeal was timely. 8. On or about June 13, 2019, the City sent the parties a letter seeking an agreement to continue the SEPA hearing. See Exhibit 11A (Dec. of E. Lamb, Ex. 1). The City explained the reason for its request, in relevant part, as follows: …the City believes the SEPA appeal cannot happen until the permits for the underlying project have been issued so that appeals of those permits, if they are filed, may be combined with the SEPA appeal. At this time, the City has not issued the grading permit or the floodplain development permit, as the City requires FEMA issuance of the conditional letter of map revision first. The City anticipates that the FEMA process will take longer than the allowable appeal period provided by the SVMC, necessitating a continuance of the SEPA hearing. See id. Under the circumstances, the City sought an agreement among the parties to “continue the SEPA hearing until such time as the underlying project permits can be Page 5 of 13 issued and any permit appeal allowed to be filed to allow the necessary combined single hearing on both appeals.” See id. (Emphasis added). In the event the parties could not agree on a deferral, however, the City advised that it would seek either a stay or dismissal of the appeal. See id. 9. Ann Cary1 and several interested neighbors met with Mr. Lamb about the City’s letter. The Appellant’s representative was not present. Testimony of A. Merkel. However, the parties proceeded with the meeting just the same. At the meeting, Mr. Lamb explained the reason for the requested continuance, consistent with his letter of June 13, 2019. Testimony of A. Cary. 10. On direct examination, Mr. Merkel asked Ms. Cary about that meeting. In pertinent part, Ms. Cary testified as follows: Q. What would say you came out of that meeting understanding? A. …a letter basically made it sound like we couldn’t have more than one thing open at a time and things had to follow in a logical progression, A had to happen before B, B had to happen before C, and somehow or other the City put B in front of A, and so we followed suit with that by filing our appeal so they kinda had to get everything back in a proper order that they were supposed to happen. So we had to wait for some FEMA study or something to be able to have the whole thing in entirety, and so rather than have our appeal just sit there by itself they indicated to us that we could wait until A, B, and C were put in their proper order and then if we wanted to file an appeal, or amend our appeal I guess would be the thing, if we wanted to add additional information based on A and B now being in place that we could do so and because it was due to City rules and regs not being clear and getting the cart before the horse, there would be no additional fee for that… So, we talked… and we agreed, basically the City was asking us, and very nicely, if we would mind doing this slightly out of order so they could get things back in the order they were supposed to be, and we said yes. … So, we said that’s fine, we’ll wait until the next step is put in place and then if we have something to add to it, we’ll let you know, and if not, then we’ll just keep our original appeal as it exists. We filed something, we did what we were supposed to do, we were asked to hold off, we would be given a chance to add to it if we wanted to, if we didn’t want to, then no harm, no foul, our original appeal was still there, still a place holder, still valid. And now to me it sounds like the City is saying “Ah, no, sorry, you didn’t add something to it, so everything is off the plate.” I just don’t understand. 1 It is not clear on this record whether the Appellant, Mr. Phelps, also attended the meeting. What is clear, however, is that Ms. Cary was confirming the Appellant’s understanding of the substance of the meeting with the City. It should also be noted that Mr. Phelps and Ms. Cary share an email address and have used it collectively throughout the record. Page 6 of 13 Testimony of A. Cary (emphasis added). 11. On June 25, 2019, the parties agreed to the continuance. See Exhibit 11A (Dec. of E. Lamb ¶ 4); see also Testimony of A. Cary & A. Merkel. This agreement was memorialized in an e-mail to the City, dated June 25, 2019, which stated as follows: With the agreement from the City that there would not be an additional charge for appealing the grading and floodplain permits, we agree to continue the SEPA appeal hearing until such time that the underlying project permits can be issued, and we have a chance to file any necessary additional appeal. See Exhibit 11A (Dec. of E. Lamb, Ex. 2 (emphasis added)). 12. On December 11, 2019, FEMA approved the CLOMR-F for the Project Site. See Exhibit 11B (Dec. of J. Nickerson ¶ 7). 13. On March 4, 2020, the City issued the grading permit (EGR-2018-0074) and the floodplain development permit (FPD-2018-0002) to the property owner. See Exhibit 11B (Dec. of J. Nickerson ¶ 8). 14. On March 12, 2020, the City sent to Appellant and his representative written notice that the grading and floodplain development permits had been issued. See Exhibit 11B (Dec. of J. Nickerson ¶ 9). The notice provided that any appeals of the grading and floodplain development permits were due on or before March 18, 2020. See id. (Dec. of J. Nickerson, Ex. 1). 15. On March 16, 2020, the Appellant, Mr. Phelps, sent an e-mail to the City inquiring about the appeal process. See Exhibit 11B (Dec. of J. Nickerson, Ex. 1). As relevant here, Mr. Phelps sought some feedback from the City: “I would like to confirm that our original [SEPA] appeal is still in place. And that a future meeting will be schedule[d] to address that original appeal whether we amend that appeal or not.” See id. (corrections added). Mr. Phelps also requested additional time to consider whether to appeal the permits, since only four working days remained until the appeal deadline. See id. 16. The City acknowledged that the notice of the appeal deadline was insufficient. See id. (Dec. of J. Nickerson, Ex. 1). Under the circumstances, the City stipulated that the Appellant would be allowed to file the appeal at any time on or before March 26, 2020. See id. However, the Building Official also advised: “…I strongly encourage you and your representative to make every effort to file said appeal prior to the close of business on Wednesday, 3/18/20.” See id. 17. The Appellant inquired with the Building Official as to the reason she “strongly encouraged” the filing of an appeal by March 18, even though the actual deadline was extended to March 26. Testimony of A. Cary. The Building Official advised that, in her opinion, it would be preferable to file the appeal within the original time-frame in order to avoid any questions being raised about the timeliness of the appeal. See id. Page 7 of 13 18. On March 26, 2020, the Appellant sent an e-mail to the Building Official stating in relevant part: First of all, thank you again for giving us a little extra time to research any additional info we could include in our appeal. However, I just heard from Al, and he indicated that he has nothing else to add at this time. Obviously, we still want to move forward with the original SEPA appeal. See Exhibit 11B (Dec. of J. Nickerson, Ex. 1). 19. On May 5, 2020, Notice of Appeal Hearing Date was emailed to all parties, setting a hearing date of June 10, 2020. See Exhibit 3. 20. On June 10, 2020, the Hearing Examiner conducted a hearing on the SEPA appeal. The appeal hearing was conducted in accordance with SVMC Sections 21.20.150(E) and 17.90.050 and 17.90.060, and the Hearing Examiner Scheduling Rules and Rules of Conduct set forth in Appendix B of the SVMC. 21. The Hearing Examiner takes notice of the Spokane Valley Comprehensive Plan, Title 17 SVMC General Provisions, Title 19 SVMC Zoning Regulations, Title 21 SVMC Environmental Controls, and other applicable development regulations. 22. The record includes the electronic recording of the hearing, Exhibits 1 through 19, and the items taken notice of by the Examiner. Issues Raised in the Appeal 23. The appeal filed by the Appellant on May 3, 2019, sets forth two2 claims: • Claim 1: The Environmental Checklist does not address the environmental impacts to the land or area from which the Applicant intends to remove the “fill” material. See Exhibit 1. • Claim 2: According to the Environmental Checklist, the proposal to place fill on the Project Site is closely related to the developer’s plans to build something on the Project Site. See Exhibit 1. The Environmental Checklist failed to disclose the nature and scope of the planned building project, and the environmental impacts associated with that project. See id. As a result, the environmental review did not satisfy the requirements of WAC 197-11-060, which precludes piecemeal decision-making when analyzing the environmental impacts of a project. See id. Discussion of Legal Issues 24. Grading permits and floodplain development permits are classified as Type I permits. See SVMC 17.80.030 (Table 17.80-1, Permit Type and Land Use Application). The final decision on Type I applications is made by the relevant city department. See 2 To be clear, the Appeal Application lists three claims. See Exhibit 2 (Appeal Narrative). However, the Hearing Examiner agrees with the City’s contention that Claims 2 and 3, properly framed, constitute a single legal issue. Therefore, the decision characterizes the appeal as raising only two claims. Page 8 of 13 SVMC 17.80.060(A) (final authority). Type I decisions become effective on the day after the appeal period expires. See SVMC 17.90.020(A). In order to challenge a Type I decision, an aggrieved party must commence an appeal “no later than 14 calendar days after written notice of the decision is mailed.” See SVMC 17.90.040(A). The appeal authority with respect to Type I decisions is the Hearing Examiner. See SVMC 17.90.010 (Table 17.90-1, Decision/Appeal Authority). 25. The City issued the grading and floodplain development permits on March 4, 2020. An appeal of those permits would normally be due fourteen days later, or March 18, 2020. Although public notice of a Type I permit is not required or customary, the City provided the Appellant with notice that the permits had been issued, per the Appellant’s request. That notice did not occur until March 12, however, only six days prior to the appeal deadline. The City subsequently granted the Appellant’s request to accept an appeal if filed on or before March 26, a full fourteen days after the notice was given. 26. On March 26, 2020, the last day to appeal the permits, the Appellant advised the City that he and his representative had decided not to file an appeal of the permits. The Appellant noted that he had researched the matter and discussed that decision with his representative. Thus, the Appellant affirmatively elected to forgo an appeal of the permits, having taken the extra time granted to consider his options. Irrespective of the extension of the appeal deadline, the Appellant had many months to consider how and whether to appeal the permits. This is true because of the long delay between the date that the MDNS was issued (and appealed), and the later issuance of the grading the floodplain development permits. 27. The Hearing Examiner concludes that the grading and floodplain development permits, not having been timely appealed, are final and are no longer subject to challenge. In the absence of an appeal, the Hearing Examiner has no jurisdiction to consider any grievance regarding the City’s issuance of those permits. Even if the permits were issued illegally, a fact not in evidence, the permits are now final and enforceable. See Chelan County v. Nykriem, 146 Wn.2d 904, 929, 52 P.3d 1 (2002) (holding that a legally defective boundary line adjustment “became valid” once the time period to challenge the approval had passed); see also Wenatchee Sportsmen Association v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000) (holding that a rezone could not be challenged after the appeal period expired, even though the rezone improperly allowed development outside the urban growth boundary). 28. The City and the Applicant/Owners contend that the Appellant’s failure to appeal the underlying permits is fatal, not only to any challenge to the substance of the permits, but to his SEPA appeal. The Appellant, meanwhile, insists that the SEPA appeal remains valid regardless of any option he had to appeal the underlying permits. Resolution of this issue turns on an interpretation of SEPA, its associated regulations, and relevant case law. 29. SEPA provides that environmental appeals “shall be of the governmental action together with its accompanying environmental determinations.” See RCW 43.21C.075(2)(a). SEPA states that any appeal of an environmental determination “shall” be consolidated “with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing.” See RCW 43.21C.075(3)(b). Page 9 of 13 30. SEPA regulations implement this statutory mandate. See WAC 197-11-680. Specifically, the regulations confirm that a hearing or appeal of an environmental determination must be conducted at the same time as the hearing or appeal on the underlying governmental action. See WAC 197-11-680(3)(a)(v). The SEPA regulations further clarify: If an agency does not provide for a hearing or appeal on the underlying governmental action (either a hearing on the agency’s recommendation or an agency appeal hearing after the decision is made), the agency may not hold a SEPA administrative appeal, except as allowed under (a)(vi) of this subsection. See id. (Emphasis added). The foregoing paragraph ends with the phrase “except as allowed under (a)(vi) of this subsection.” See id. Thus, there are exceptions to the consolidation rule, albeit limited in scope. 31. Subsection (a)(vi) provides that appeals of SEPA determinations do not need to be consolidated with a hearing or appeal on the underlying governmental action in the following cases: (1) the appeal is of a determination of significance (DS); (2) the appeal concerns a procedural determination made by an agency that is also the project proponent or is funding a project, as further described in the regulations; (3) the appeal concerns a procedural determination on a non-project action; and (4) the appeal is made to the local legislative authority under RCW 43.21C.060 or other applicable statutes. See WAC 197-11-680(3)(a)(vi)(A)-(D). 32. None of the consolidation exceptions listed in subsection (a)(vi) have any bearing on this case. This case concerns the appeal of an MDNS, not a DS. The project is not sponsored or funded by the City of Spokane Valley. This case does not concern a non-project action. The permits were issued in support of a specific, project action, i.e. the grading and placement of fill on privately owned land. Finally, this case does not concern an appeal to the City Council. As reviewed above, the Hearing Examiner is the proper appeal authority for appeals of Type I permits. 33. Pursuant to WAC 197-11-680(3)(a)(v), no SEPA appeal can be conducted unless there is a “hearing or appeal” available for the underlying permits. There is no hearing procedure for a Type I application. See SVMC 17.80.070 (Table 17.80-2, Permit Type and Land Use Application). A SEPA appeal would not be allowed in conjunction with a Type I hearing—there is no such hearing. However, Type I permits are subject to appeal pursuant to SVMC 17.90, as previously discussed. A SEPA appeal3 could, therefore, be considered in connection with an appeal of a Type I permit. That does not mean, however, that a SEPA appeal could properly proceed on its own. 34. In order to satisfy the consolidation requirement, the Appellant had to appeal the underlying permits. This is the only way the SEPA appeal could be properly linked to a 3 Consistent with SEPA requirements, the municipal code provides that appeals of decisions or actions conditioned or denied under SEPA shall be appealable in accordance with Chapter 17.90 SVMC. See SVMC 21.20.150(E). Page 10 of 13 “hearing or appeal” of the underlying permits. See State v. Grays Harbor County, 122 Wn.2d 244, 249, 857 P.2d 1039 (1993) (explaining the “linkage requirement,” i.e. that administrative appeals must combine review of SEPA issues with the related government action). In other words, the only way an “orphan” SEPA appeal could be avoided, under the factual and legal circumstances of this case, was to appeal both the SEPA determination and the permits. Because the permits were not appealed, the only matter at issue in this case is a SEPA appeal, divorced from the underlying governmental action. Such an appeal, under the SEPA requirements, cannot proceed. 35. The Appellant asserted, in various ways, that it would be unfair or inappropriate to apply the consolidation requirement to preclude his SEPA appeal. The Appellant emphasized that the neighbors are not lawyers and are at a disadvantage, both in terms of knowledge and resources, when compared to the Owners/Applicant and the City. Testimony of A. Merkel. The procedural issues raised by the City were confusing and “hard to understand.” Testimony of A. Merkel & A. Phelps. In addition, the Appellant believed that the neighbors were lead to believe that the SEPA appeal “remained valid” regardless of any appeal of the permits. Testimony of A. Merkel. Based upon the communications with the City, the Appellant believed he was not required to appeal the permits, but could add claims or clarifications to his appeal, at his option, once the permits were issued. Testimony of A. Merkel; see also Testimony of A. Cary; see also Exhibit 11B (Dec. of J. Nickerson, Ex. 1). 36. In essence, the Appellant is arguing that the SEPA requirements should be relaxed in this case, based upon principles of fairness and equity. The Hearing Examiner is sympathetic to the Appellant and understands that the legal rules can lead to outcomes that seem unfair or harsh. The Hearing Examiner’s authority, however, is limited to interpreting and applying the rules and regulations as they are written. The Hearing Examiner cannot overlook or amend the rules. Nor can the Hearing Examiner revise the rules in order to better comport with his own sense of fairness. In other words, the Hearing Examiner lacks authority to grant equitable remedies. See Chausee v. Snohomish County Council, 38 Wn.App. 630, 639, 689 P.2d 1084 (1984). 37. The Hearing Examiner acknowledges that land use laws and regulations are very difficult to navigate, even for experienced professionals. The difficulty is compounded by SEPA and its regulations, which rarely provide clarity, especially with respect to procedural questions. That being said, the Hearing Examiner does not have authority to overlook the legal rules or requirements because the neighbors or their representatives, for example, may not have the necessary knowledge or expertise to fully understand the laws and regulations. If an appealing party faces this kind of obstacle, the onus is ultimately on that party to seek independent legal advice. 38. The Hearing Examiner does not accept the argument that the City mislead the Appellant or others about the legal procedures. When the City requested a continuance of the SEPA appeal, it did so specifically to comply with the procedural requirements of the law. In its written request, the City advised the Appellant of the basis for the request, including the need to avoid an “orphan” appeal under SEPA. The City went further and explained that the Appellant would have the opportunity to appeal the underlying permits. The City later informed the Appellant of the permit Page 11 of 13 issuance, and extended the appeal deadline to provide the Appellant with every opportunity to lodge an appeal. 39. The Deputy City Attorney is the legal representative of the City of Spokane Valley. The Appellant was not confused about this fact. Testimony of A. Cary. The Deputy City Attorney’s role is to represent the City generally, and to defend the decisions made by the City, more specifically. The Deputy City Attorney was not obligated to advise the Appellant about how to perfect his appeal, or the legal consequences of his choices. In fact, the Deputy City Attorney could be derogating his duties if he were to advise the Appellant how to challenge his own client’s decisions. 40. The Hearing Examiner rejects the claim, made both expressly and by implication during the hearing, that the City “specifically advised” the Appellant that no appeal of the permits was necessary. Testimony of A. Merkel & A. Cary. The communications from the City of Spokane Valley reference an “appeal” deadline, not merely an option to add or clarify a claim. See Exhibit 11A (Dec. of E. Lamb, Ex. 1); see also Exhibit 11B Dec. of J. Nickerson, Ex. 1). In addition, the Hearing Examiner does not believe that the Deputy City Attorney made any such statements, or said anything inconsistent with the City’s written communications on the matter. The Hearing Examiner has little trouble concluding that the Appellant did not fully understand the legal consequences of his decisions. Any misperception, however, was not due to miscommunications by the City or, ultimately, the City’s responsibility. Based on the above findings of fact, the Hearing Examiner enters the following: III. CONCLUSIONS OF LAW 1. Any finding of fact above that is a conclusion of law shall be deemed such, and any conclusion of law below that is a finding of fact shall be deemed such. 2. The Appellant timely filed its appeal and paid the appeal fee, challenging the MDNS issued by the City. The Appellant, therefore, initiated a valid appeal under SEPA. 3. The Appellant did not appeal the grading and floodplain development permits issued for the Project. The grading and floodplain development permits are, therefore, final and are not subject to any further review, either administratively or in the courts. 4. SEPA mandates that any appeal under SEPA must be consolidated and conducted together with the hearing or appeal on the underlying governmental action. Because the underlying governmental action (i.e. the project permits) were not appealed, there is no legal basis upon which to consider the SEPA appeal. Therefore, the SEPA appeal must be denied as a matter of law. 5. The Hearing Examiner denies the appeal based upon the consolidation mandate of SEPA. Because the appeal is denied based upon a threshold issue, the Hearing Examiner deems it unnecessary to address the other issues raised in this appeal. 6. The Hearing Examiner hereby denies the appeal pursuant to SVMC 18.20.030 (Powers and Duties of Hearing Examiner). Page 12 of 13 IV. DECISION Based on the above Findings of Fact and Conclusions of Law, the Hearing Examiner hereby denies the SEPA appeal. DATED this 13th day of July, 2020. Brian T. McGinn City of Spokane Valley Hearing Examiner c/o City of Spokane Office of the Hearing Examiner 808 W. Spokane Falls Blvd. Spokane WA 99201 509-625-6010 hearingexaminer@spokanecity.org Page 13 of 13 NOTICE OF RIGHT TO APPEAL Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC) and Chapter 36.70C of the Revised Code of Washington (RCW), the decision of the Hearing Examiner on the appeal of an administrative determination or interpretation is final and conclusive unless within 21 calendar days from the date of issuance of the Hearing Examiner’s decision, a party with standing files a land use petition in Superior Court pursuant to RCW Chapter 36.70C. On July 13, 2020, a copy of this decision will be mailed by regular mail to the Appellant, Applicant, and to all government agencies and persons entitled to notice under SVMC 17.80.130(4). Pursuant to RCW Chapter 36.70C, the date of issuance of the Hearing Examiner’s decision is three (3) days after it is mailed. The date of issuance of the Hearing Examiner’s decision will be July 16, 2020. THE APPEAL CLOSING DATE FOR THE APPEAL DECISION IS AUGUST 6, 2020. The complete record in this matter is on file during the appeal period with the Office of the Hearing Examiner, 808 W Spokane Falls Boulevard, Spokane, Washington, 99201; and may be inspected by contacting Kim Thompson at (509) 625-6010. The file may be inspected during normal working hours, listed as Monday-Friday of each week, except holidays, between the hours of 8:00 a.m. and 4:00 p.m. After the appeal period, the file may be inspected at the City of Spokane Valley Community & Public Works Department-Building and Planning Division, located at 10210 E. Sprague Avenue, Spokane Valley, WA 99206; by contacting staff at (509) 921-1000. Copies of the documents in the record will be made available at the cost set by the City of Spokane Valley. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.