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Ignore lawsuit letter, critics of Langley Passage tell city council

Opponents of a controversial subdivision are pressing the Langley City Council to move forward with its rejection of the project, despite the recent threat of a lawsuit over the housing development.

Steve Erickson of the Whidbey Environmental Action Network and Robin Adams of the Langley Critical Area Alliance are both asking Langley officials to wrap up their review of Langley Passage, a proposed 20-home subdivision on the northeast edge of town. Erickson and Adams sent letters to city officials last week defending the council’s evaluation of the project.

The letters follow one sent to the city by Douglas Kelly, an attorney representing Whidbey Neighborhood Partners, the developer of Langley Passage. Kelly warned city officials, in a letter sent Nov. 12, that they had failed to follow the process for appeals set out in the city’s municipal code, and added that Langley would face a lawsuit and lose unless it held a new hearing on the project. Langley’s municipal code allows only one appeal of projects on environmental grounds, but the city has granted two appeals to WEAN and the Langley Critical Area Alliance: one to the Planning Advisory Board, and one to the city council.

WEAN dismissed the two-appeals complaint, and Erickson, in his letter, said city officials should be allowed to interpret the city code as they see fit. The city code is the set of regulations, rules and ordinances that dictate how city hall operates.

Erickson said the city council and planning officials “must be granted deference in their interpretation of the code they are empowered and charged with administering. In essence, the government of Langley is presumed to know what the Langley Municipal Code means.”

WEAN and Adams have asked the city to ignore Kelly’s letter about legal issues over the council’s review of Langley Passage.

Adams has also asked the Langley City Council to pass “a formal resolution censuring the applicant’s attorney.” A censure is an official reprimand that condemns a person for misconduct.

The new debate over city rules on environmental appeals has further lengthened the years-long review of Langley Passage by city hall.

The project got its start in early 2006, and the city’s review appeared to be near the end on Nov. 1 when the city council voted unanimously, 4-0, to reject the city planning department’s environmental review of Langley Passage as “clearly erroneous.”

Because the last hearing before the council also included appeals made to the Planning Advisory Board’s recommendation that the council reject the Langley Passage preliminary plat — a general plan of streets, homes and other components of the new subdivision — the council also voted that same night on the draft plan for the project. The council shot down that preliminary plat on a 4-0 vote, and was expected to adopt its legal findings for its dismissal of Langley Passage at its meeting on Nov. 15.

Erickson complained that the proponents of Langley Passage participated in the closed-record hearing before the city council on the subdivision, but only raised objections to the process at the 11th hour, after the council had voted against the subdivision.

“They seem to only have developed this theory at the very last minute,” Erickson said. “They are just asking to reargue their case and have a second bite at the apple.”

“Sometimes you lose. And if you lose, you lose. That’s the way it goes,” he said.

Erickson and Adams also recounted how city officials had set out the process for the appeals, and how they had been told repeatedly they would be given a chance to appeal the environmental review of the project.

Kelly, however, said the city code clearly allows only one appeal on environmental grounds.

He also said talk of a censure was “inappropriate.” His letter, sent on behalf of Langley Passage developer Gary Roth, was sent in the hopes of keeping the city out of legal trouble.

“It was an effort on Gary’s part, and my part representing him, to bring those [issues] to the council in the hopes of avoiding this matter going forward to litigation unnecessarily,” Kelly said.

Kelly said the concerns weren’t raised earlier because he was focused on the appeal of the preliminary plat — only WEAN and the Langley Critical Areas Alliance challenged the Planning Advisory Board’s ruling on the city’s environmental review — and he didn’t review the city’s code on environmental appeals until recently.

“We didn’t review it until the council had basically done what they had done, or indicated what they are intending to do,” he said.

The critical legal issue is whether the earlier environmental appeal of Langley Passage before the Planning Advisory Board constitutes the only allowed appeal, and Erickson and Adams have pointed out that the PAB’s decision on the first appeal was only a recommendation.

“The code speaks for itself,” Kelly countered.

“If you read the code, you can’t interpret it any other way. It doesn’t say one means two,” he said.

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