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Langley Passage attorney to city: Hold new hearing or face lawsuit

Langley Mayor Paul Samuelson announced at Monday’s council meeting that the city will take time to review a letter from the attorney for the Langley Passage project before the council again publicly discusses the proposed subdivision. - Brian Kelly / The Record
Langley Mayor Paul Samuelson announced at Monday’s council meeting that the city will take time to review a letter from the attorney for the Langley Passage project before the council again publicly discusses the proposed subdivision.
— image credit: Brian Kelly / The Record

LANGLEY — The Langley City Council needs a do-over on the hearing process for Langley Passage or it will face a lawsuit and lose, the attorney for the proposed subdivision told city hall in a letter sent Friday.

Douglas Kelly, an attorney representing Whidbey Neighborhood Partners, the builders of the 20-lot subdivision, told city officials they failed to follow the process for appeals set out in the city’s municipal code. The municipal code is the set of rules, regulations and ordinances that dictate how city hall operates.

“It seems clear to us that the process that you followed, and appear to be intending to follow, simply does not comply with the city code,” Kelly wrote.

“While if necessary, Whidbey Neighborhood Partners is prepared to seek judicial review of the city’s decision and damages for the city’s actions, we would urge that the city council now proceed as its codes require,” he added.

A critical problem for the city is the number of appeals it has accepted on the environmental review for Langley Passage, an 8.52-acre project in the Edgecliff neighborhood that has been a lightening rod for critics.

The council voted 4-0 to reject the city planning department’s environmental review of Langley Passage as “clearly erroneous” on Nov. 1, and then voted unanimously to shoot down the preliminary plan for the subdivision on the northeast end of town.

The council’s decision to reverse the planning staff’s recommendation, and require an environmental impact statement, came after two groups filed appeals to the city’s environmental review of the project.

The Whidbey Environmental Action Network and the Langley Critical Area Alliance, a group of neighbors to the project and others, challenged the city’s review, and subsequent hearings were held before the city’s Planning Advisory Board.

When the PAB eventually upheld city staff’s environmental review of Langley Passage, WEAN and the Langley Critical Area Alliance filed appeals with the city council to protest the decision.

And there lies the rub.

Under the Langley Municipal Code, only one appeal can be made on the environmental work. WEAN and the Langley Critical Area Alliance made two: the first to the PAB, and the second to the city council when the two groups lost the initial battle.

Kelly, in his letter to the city, cited the municipal code section that says: “Further appeals must be to Island County Superior Court.”

WEAN and the Langley Critical Area Alliance, however, never filed a challenge in court. City rules also state a 21-day deadline for court challenges to decisions made by the city, a deadline that has since passed.

The attorney’s letter, delivered to the city on Nov. 12, prompted city officials to make a last-minute change to the agenda for Monday’s council meeting.

City council members were expected to consider and adopt “findings of fact,” the legal basis for the rejection of Langley Passage that was made earlier this month.

Mayor Paul Samuelson said the city needed time to review the letter, and told the crowd in the nearly packed council chambers that city officials would not discuss Langley Passage until December at the earliest.

“Langley Passage is off the agenda for tonight,” Samuelson said, a mantra he had to repeat nearly a half-dozen times as some in the audience continued to ask about the project, including Steve Erickson of WEAN.

“There’s no discussion about it,” Samuelson told Erickson when pressed. “It’s off the agenda for tonight.”

Langley Passage has been in the city’s proposed project pipeline since February 2006. This year, in August, the PAB recommended the project be denied by the council.

The development has been highly controversial, mostly due to its location. WEAN and neighbors to the project have raised concerns that the plan to let rainwater flow from roofs, driveways and other hard surfaces into rain gardens on the Langley Passage site would mean the water would seep through the earth and eventually travel north, to the nearby bluff overlooking Saratoga Passage, where it would worsen landslides along the cliff where many critics have homes.

Kelly, the attorney for the developers, also noted in his letter that the city code requires the city to hold a public hearing where the proponents of the project, and city staff, could answer questions from the council.

“Under the Langley city code, it is simply not correct, as you proceeded at your meeting on Nov. 1, that the applicant and staff have no opportunity to explain the evidence in the record from the Planning Advisory Board, or that they have no opportunity to make arguments or respond to questions,” Kelly said.

Kelly asked city officials to hold such a hearing, and added that the concerns that city council members had previously raised would have likely been resolved if the city had only followed the rules it adopted.

When the council shot down the preliminary plan for Langley Passage, council members pointed to problems with the location of a sewer line, a looped water line through the property, and stormwater infiltrating into the earth and causing trouble for the Saratoga bluff. Kelly, however, noted the developer was willing to have the city say exactly where the water and sewer lines should be installed as a condition of getting approval for the project, and also repeated the developer’s offer to have stormwater from the neighborhood “tightlined” so it wouldn’t cause infiltration issues.

“We write now because it seems wasteful for all parties to go to court, only to have the matter remanded to the city to follow its own codes,” Kelly said.

City officials said this week that the city would “hold off” on any action on the Langley Passage project until the points raised in Kelly’s letter are reviewed.

Samuelson said he hopes Langley Passage can be discussed at the council meeting on Dec. 6.

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