UPDATE | Langley council reverses course on Langley Passage
March 26, 2011 · Updated 10:28 AM
LANGLEY — The Langley City Council did an about-face earlier this week and unanimously reversed its four-month-old decision to reject the controversial Langley Passage housing project.
The surprise move came during a special meeting on Tuesday, and it put the 20-home project on the path for approval, much to the confusion and anger of a near-capacity crowd of opponents in council chambers.
Council members noted correspondence from the developer’s attorney that came after the council rejected the 20-home subdivision in early November. Doug Kelly, who represents Whidbey Neighborhood Partners, sent the city a letter late last year that claimed the council had violated its own municipal code when it allowed too many appeals to be filed and reviewed by the city on the proposed project in the city’s Edgecliff neighborhood.
Kelly had warned that Langley would be on the losing end of a lawsuit if it didn’t hold a hearing where the developer was given a chance to respond to the council’s concerns about the project.
Council members said they were encouraged, however, by Kelly’s statements that the developer was willing to work through stormwater runoff concerns, sewer issues and other worries that led to the council’s earlier rejection of the subdivision.
“We are so close to an outcome that would enable us all to move forward and save us a whole lot of grief,” said Councilman Robert Gilman.
He acknowledged the legal complexities that have led to confusion inside and outside city hall.
“We’re all trying to get to a common-sense outcome, and we find ourselves dancing through a legal minefield on the way to get there,” he said.
“As elected officials, we all swore to uphold the laws of the state and this municipality,” Gilman added. “We’re all charged to defend the rights of all of the people who are involved. That means defending the rights of all of them, regardless of how much we like or don’t like their particular behavior.”
Council members were given two paths by the city’s legal advisor to take the proposed subdivision out of legal limbo: one that would uphold the denial of the project, and another to reverse the council’s earlier rejection of the project and then consider changes that would make the project acceptable to the city.
But much of the meeting was mired in thick legal issues that left the audience baffled.
At the start, city officials attempted to disqualify themselves from sitting in judgement of the project, saying the legal threats from the developer made each of them unable to tender a fair decision on the proposal.
“There were also letters that contained threats about lawsuits, and I believe those threats have not allowed me to be impartial,” said Councilwoman Fran Abel.
“I would say the same thing,” added Councilwoman Rene Neff.
Every other council member, and the mayor, agreed and noted their conflicts with the Appearance of Fairness Doctrine, for the same reason.
That led to a rare enactment of the “Rule of Necessity,” the legal provision that allows decision-makers who have been removed from the decision-making process to rejoin the proceeding — immune from “appearance of fairness” challenges — when a quorum of the decision-making body has been disqualified.
Carol Morris, the city’s legal advisor for the Langley Passage hearing, said council members would still make a decision on Langley Passage even though they had disqualified themselves.
“Because we have a lack of a quorum, all of the council members now must step back in and participate in this hearing,” she said.
Two officials were subject to individual challenges, however.
Gail Fleming, a member of the Langley Critical Area Alliance, a group of neighbors to the project and others who oppose it on environmental grounds, said Mayor Paul Samuelson should step down from his potential role as a tiebreaker.
Fleming said Samuelson had characterized the development as a “fine and wonderful project.”
“That to me was a biased statement, and he prefaced it by saying it’s a good thing I don’t need to be a tiebreaker anymore, because now I can say these things.”
Samuelson, however, recounted that he had said no such thing.
“I have no memory of that piece of that conversation at all,” Samuelson said.
He said the conversation centered on whether Larry Kwarsick, the city’s planning director, should have any involvement in the city’s processing of the project.
“I never said anything about whether I thought the project was a good project or wasn’t a good project,” Samuelson said.
Rhonda Salerno, an Edgecliff resident also opposed to Langley Passage, asked Councilman Hal Seligson to step down from any involvement. Seligson joined the council late last year after the project was rejected by the council.
“I don’t believe he’s heard the testimony. And I don’t think he has the background,” Salerno said. “Sorry, Hal, it’s not anything personal.”
Seligson noted that he was very familiar with the proposal, and had read the material in the record. Morris, the attorney, also said she had briefed the councilman on what he needed to review.
“I feel comfortable that I could form an opinion on this in a fair and equitable way,” Seligson said.
Langley Passage has been in the permit pipeline since 2006, and has inflamed the emotions of neighbors who are worried that stormwater runoff from more roofs, driveways and additional development in Edgecliff will lead to even more landslides along the fragile bluff overlooking Saratoga Passage where they have homes.
The project has also been opposed by the Whidbey Environmental Action Network, which has also said the project will make the Edgecliff bluff more unstable, and WEAN has also criticized the conceptual plan for the subdivision that includes a new water line near a wetland.
Before Monday’s meeting turned to talk of approving the preliminary plat for Langley Passage, Steve Erickson of WEAN pressed to have information from the developers — details on how they would address concerns raised by the council about the development — excluded from the record.
Erickson said the council should not take new evidence on the proposal, which included new utility plans that would have the water line moved from the Langley Passage property and its on-site wetland to an adjacent property.
“Your local ordinances are very explicit on this; you may not have new evidence submitted during a closed-record appeal,” Erickson said.
Opponents also complained that the meeting had not been advertised as a hearing, and that they had not been given all the documents in the appeal.
Erickson added that the developer’s attorneys had not presented him with a brief on their arguments before Tuesday’s meeting.
“I just want the record to reflect she has not done that,” he said.
Morris, though, recalled the steps that were taken to notify both sides of the documents that had been submitted in the case.
“I did not hear from anyone that you did not receive any documents,” she said.
Elaine Spencer, a lawyer who is part of the Langley Passage legal team, said the information that WEAN wanted excluded could not be branded as evidence.
“There’s a difference between evidence and argument,” Spencer said, adding that the state Supreme Court has held that argument of counsel does not constitute evidence in a case.
Spencer said the information given by the developer to the city since the council’s rejection of the project was not new, such as a new location for the water line for the project, for example. That was something suggested by the Planning Advisory Board during its review of the project, she said.
Some on the council said they could reach a decision even if the material that WEAN opposed was not in the record for review.
Several hinted — but not by much — which way they were leaning.
“I feel like I could make a decision today about this,” Neff said.
“No matter which direction we go, there are going to be people who aren’t going to be happy. That’s a given,” she added.
“I hold open the possibility that we will make exactly the same decision as we made in the first place,” Gilman said. “We may make some different decision.”
The developers of the project, and the independent experts hired by the city, have repeatedly said the housing project will not jeopardize the bluff along Edgecliff Drive.
Seligson said that most of the evidence submitted by scientific experts said there was “a modest and controllable” degree of additional water that might flow to the bluff.
“So I don’t see that as something that cannot be overcome with due diligence,” he said.
“Many of my concerns when I voted more or less reluctantly on Nov. 1 ... have been altered,” added Councilman Bob Waterman.
He said he was worried about moving forward, however, given that some opponents said they were not given full access to all the documents in the case.
“But I am hesitant to make any final decision until I am assured that all the parties have had access to what we’ve had access to, in this packet,” Waterman said.
“I want to move ahead, but I want to do it in as fair a manner as I possibly can,” he said.
The council agreed to postpone a decision on WEAN’s request to exclude evidence submitted by the developers until council members meet again in April, when they will decide if the project should be given a conditional approval.
The council’s reconsideration drew a harsh response from the critics of the development.
“Now we’re all supposed to just hold hands and work together and work this thing out, forgetting all the rules and regs that came into play on your vote of Nov. 1?” asked Bruce Kortebein.
As the meeting adjourned, opponents crowded around individual council members with questions and comments and Salerno, a neighbor of the project, shouted that city officials must have been paid off.
Morris, the city’s attorney, warned council members not to talk about the proposed project, and told them to stop talking because the meeting was over.