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Legal jousting continues over Langley Passage project

The property for the proposed Langley Passage housing development lies south of Edgecliff Drive on the east end of Langley. The 20-lot subdivision is in limbo as the city remains at odds with the developer, Whidbey Neighborhood Partners, on whether Langley officials properly conducted the appeals over the city
The property for the proposed Langley Passage housing development lies south of Edgecliff Drive on the east end of Langley. The 20-lot subdivision is in limbo as the city remains at odds with the developer, Whidbey Neighborhood Partners, on whether Langley officials properly conducted the appeals over the city's environmental review of the project.
— image credit: Brian Kelly / Record file

LANGLEY — The courthouse or council chambers: It’s still unclear where the fate of the controversial Langley Passage project will be decided.

City officials met with representatives of the 20-lot subdivision last week, and Director of Community Planning Larry Cort said what happens next is up to the developer of the project.

“We were happy to listen, but any next steps are in their court,” Cort said.

He declined to talk in detail about last week’s meeting, which followed an exchange of increasingly pointed letters between attorneys for Langley Passage and Carol Morris, a lawyer representing Langley who works for the city’s insurance pool.

Langley officials aren’t the only ones who have been tight-lipped since the meeting.

“We continue to talk to staff and search for alternative solutions that will be satisfactory to everyone,” said Doug Kelly, one of the lawyers representing the developers, Whidbey Neighborhood Partners. “And frankly, that’s about all I can say.”

When asked what might happen next, Kelly said: “The applicant continues to try to respond to the concerns of the council.”

The recent meeting came on the heels of point-counterpoint correspondence between Morris and lawyers for Whidbey Neighborhood Partners. The Langley City Council unanimously rejected Langley Passage’s preliminary plat — a general plan of streets, home locations and other components of the new subdivision — on Nov. 1, and council members had planned to approve legal findings for the dismissal at their meeting on Nov. 15.

Kelly, however, warned the council in a Nov. 12 letter that the council had not followed the city’s code that dictates how appeals on environmental issues should be handled. The city code says only one appeal is allowed, but the city granted two environmental appeals on the project: one before the city’s Planning Advisory Board, and a second before the city council after the PAB upheld city staff’s review of the project.

In the letter, Kelly said the developers were ready to take the city to court and seek damages, but instead asked the city to follow its own rules, which would have resolved any of the council’s concerns on the project.

Morris, the city’s attorney, responded with a memo to the city council on Nov. 30 that defended the council’s review of the project.

“The problem here is not procedural, because if the city council held another closed record appeal, the result would likely be the same,” Morris wrote.

She also said the developer was welcome to start over. Whidbey Neighborhood Partners could withdraw its current application, revise it and resubmit it, she said.

In her memo, Morris did not address the issue of the two appeals that had been granted. Langley’s municipal code allows only one appeal of a project on environmental grounds, but the city has granted two appeals to both the Whidbey Environmental Action Network and the Langley Critical Area Alliance, two groups that oppose Langley Passage because they say it will lead to further landslides along the bluff located across the street from the Langley Passage site.

Morris declined to talk to a reporter about her letter or the appeals.

“I don’t make news,” she said. “I don’t have anything else to say about it.”

Kelly was also reluctant to dwell on the details of the letters between the two sides.

“We just have differences of opinions of what the code allows,” he said.

Those differences are clear in letters traded between the city and the developer since the start of December.

Attorney Elaine Spencer wrote Morris on Dec. 1 and told her she had been hired by the developer “after the city council hearing in early November for purposes of suing the city to overturn their decision and recover damages.”

Spencer, however, said in the letter she asked herself if a lawsuit was really necessary.

“It is never good for the applicant and it is rarely good for the jurisdiction being sued. Particularly in these times of strained public resources, it seemed particularly appropriate to ask whether the issues that were leading to litigation truly couldn’t be resolved in another matter,” she wrote.

Spencer, who was the attorney who represented the Island County Fair Association board in 2007 when the city of Langley was hit with a lawsuit over Fairgrounds Road, also noted the hearing process used by the council when it reviewed Langley Passage appeared to conflict with the city’s adopted rules. She also said Kelly was not trying to suggest the developer had a new proposal in mind for the development, and that the council could modify the project if it wanted to.

“You are suggesting that in order for the city to make any change in the conditions to the plat, the applicant would have to submit a new plat,” Spencer told Morris. “After four years of administrative processing, during which each of the issues has been fully explored, Whidbey Neighborhood Partners would rather proceed with litigation.”

Kelly also wrote the city’s attorney, and noted that Morris hadn’t addressed the issue of whether the council had followed the proper procedure in reviewing Langley Passage.

The legal jousting continued with a sharp response from Morris: “In my memo to the council, I did respond to your arguments regarding the procedure used by the city with regard to the Langley Passage application. I don’t understand why you would need further detail on my position at this point in time. Obviously, it is an argument that you plan to make if an appeal is filed and going back and forth about the procedure that has been used doesn’t help us in the current situation.”

“Again, I have not stated that a ‘new plat’ is required,” she continued. “I have stated that the application would have to be revised to include your ‘suggestions.’”

What happens next for Langley Passage, a subdivision that has been in the works since early 2006, won’t happen until next year.

Any council action on the project will not be on the Dec. 20 agenda, according to the city.

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