North Greenacres Neighborhood

Jan Austin's Appeal to City Council - Jun 5, 2007

Appeal Delivered to Council - Decision pending until June 19, 20

Appeal of Ms. Janice Austin
June 5, 2007
City Council Hearing
Representing Ms. Austin: Mrs. Mary Pollard

Honorable Mayor Wilhite and City Councilmen,

Ms. Janice Austin has asked me to stand in on her behalf, due to her serious health problems that prevent her from attending this appeal. . The appeal regards a failure of due process that made changes to conditions of Valley Coach Estates.

Point to Council in Appeal
Ms. Austin protests the location of the condos/duplexes located on Bell and objects to a planning process that’s too narrow, excluding parties that will be impacted until it’s too late. This is very upsetting to Ms. Austin. She sold her property due to extenuating circumstances ensuring that their plans fit in with her remaining land. She was not apprised of changes so her interests would be considered. We need a more balanced system before final engineering unveils their plan.

Future Action:
• Council makes a comprehensive plan amendment that provides opportunities for adjacent properties to be involved in all phases of the planning process.
• This should reduce appeals and give time for solutions, avoiding delays.












Primary purpose of Appeal -
Rescind Decision of extending Maxwell Avenue East from Flora Estates as a public road.

• Valley Coach Estates supports that the road decision be rescinded.
o Maxwell Ave. is not needed to meet traffic needs of this development.
o City did not make a clear nexus of need to justify cost to Valley Coach Estates to extend Maxwell.
• The half road Maxwell Ave. harms Ms. Austin encumbering her with an additional road unneeded for their parcels.
• Negative Traffic impacts to Flora Ave.
• Deprives Ms. Austin of the full 41 year investment in her property by creating a net loss of land.
• Flora Estates – Maxwell Ave approved as a private road in 2004.
• Change of Maxwell Ave is made without legal justification or process to change a private road to public.
• Administrative changes to Flora Estates violated Ms. Austin’s right to due process, causing harm. – Actions arbitrary & capricious.
• Flora Estates Decision Final in 2004 – No Substantial Changes can be made without a public hearing.
• Hearing Examiner did not consider the unlawful changes to Maxwell Ave. within Flora Estates in his decision.
• Errors in staff report and testimony

Legal assistance provided by Dr. Frank Conklin cautions
that changes to Flora Estates were a violation of Ms. Austin’s constitutional rights to due process
both substantive and procedural,
violating the federal and state constitutions,
and the “takings” clause of the 5th amendment.

Due Process has two components.
1. Procedural –which says a rule or action was properly adopted after proper notice and opportunity to be heard.
And
2. Substantive – that means the rule or action gives adequate notice of what is intended and is reasonably related to a matter appropriate for government regulation.

Pivotal Fact: Valley Coach Estates drafted half of Maxwell Ave days before Hearing due to Changes made to Flora Estates.

2004 Flora Estates as approved by Hearing Examiner was not appealed and is final and binding.
Fact: Substantial Changes require a Public Hearing
Administrative Changes come under due process if they pose harm. (Supported by Supreme Court Rulings and Case Law)
Fact: Changes caused Harm to Ms. Austin – resulting in a ½ road to
be planned on her property, creating a net loss.
Fact: This meets the definition of a violation of Ms. Austin’s
constitutional rights and due process was denied her causing harm.

Action: Revoke extension of Maxwell Ave east from Flora Estates that Ms. Austin and Valley Coach mutually protest.

Record of facts:
Ms. Austin sold the section of Valley Coach Estates that contains Bell Rd. Changes to the preliminary plat are made three days before the public hearing due to changing Maxwell to a public road. City demands changes to both Flora Estates and Valley Coach Estates – Hearing is delayed from January 25, 2007 to February 8, 2007.

Supporting Evidence #1
Pg. 309 of the Record: Nelson Ogren is the Engineer of both Flora Estates and Valley Coach Estates. Ms. Harnois states Flora Estates has lot frontage changes as well as the extension of Maxwell Avenue from the adjacent Flora Estates Plat.

Washington State Law demands that Final Plat Approval must be given if they meet the Decision of the Hearing Examiner. Final Plat approval cannot be utilized as a bargaining chip by City staff to obtain new conditions or to require public gifting of a road outside of a Hearing Examiner’s decision. This would be exploitation at best or extortion as defined by Webster’s dictionary “to wrest from a person by force or any undue or illegal power.

Pg. 312 Valley Coach Preliminary Plat Map prior to January 22, 2007 shows Maxwell Ave going west ending at Bell.

On Pg. 307 January 24, 2007 The Hearing Examiner emails he cannot take action on the land use application for changes that are not substantial, until reviewing agencies have an opportunity to give comment. Changes extend the hearing to February 8, 2007.
(Why wasn’t a public hearing scheduled for substantial changes to Flora Estates road?)

He states Valley Coach Estates has extended Sinto (now known as Maxwell Ave.) within the final plat west of Valley Coach Estates.

The Hearing Examiner decision did not examine how changes to Flora Estates were made. The narrow scope of Valley Coach Estates caused errors. Staff hurries connect roads by changing Maxwell Ave to a public road in time for the Hearing without a new Hearing for Flora Estates.

Point: The Hearing Examiner knew Maxwell was a private road and was in the process of becoming public. He erred in allowing extending Maxwell to Valley Coach as a result of a substantial change to the binding 2004 decision of Flora Estates. Point of law requires that significant changes trigger a new public hearing. They could not merely circulate the change to agencies. Mr. Dempsey demonstrates this point on record stating, a subdivision could not be changed to a PUD without a new hearing before him. His Decision is conclusive and binding unless appealed and is relied upon for compliance by all parties, yet he disregarded Ms. Austin’s right to due process.

Changes to Flora Estates road appear arbitrary and capricious since they ignore clear principles the Supreme Court has repeatedly stated (Note: Deschenes v. King County, Skamania County v Columbia River Gorge Commission, Chelan County v Nykriem, Samuel’s Furniture v DOE and Noble Manor Co.. v Pierce County.)

Lack of Public Process: No predictable and consistent process used to change conditions of a road, denying Ms. Austin equal protection of the law.

Changes to a road designation could be made through three possible processes.
1. Through approval of Hearing Examiner
2. By approval of City Council
3. Through provisions provided by ordinance

None of these were utilized.

City Ordinance does not provide a separate mechanism to dedicate a private road as a public road. A uniform policy must be followed so the City’s acts are not arbitrary and capricious. The Street Vacation Ordinance is the only process the City has provided by ordinance to change a road.( City Code 10.05.230 Initiation of vacation. (Ord 04-002 , 2, 2004)

This ordinance guides a process for changes in public roadways, setting a precedent of how procedures should be followed for road changes. It includes a staff report; public input and notification, review by the planning commission, their recommendation, and a decision by City Council. This is the only fair and uniform policy to affect road change within the city code.

When could Maxwell Ave be considered a public road?
The County Auditor must record the Final Plat before changes are legal. Flora Estates was not recorded by the hearing date of February 8, 2007. The Hearing Examiner erred in treating Maxwell as a public road by mere inference.

Evidence: At the time of Public Hearing, legally Maxwell was not a public road, yet described as such. Examine the record.

• Final Plat Map of Flora Estates reveals absence of Final recording date.

• Finding of Fact #35 Mike Dempsey states Flora Estates preliminary plat was recently revised to extend Maxell Avenue to the site from Flora Road and is expected to become final in the near future.

• Pg. 74: Alyssa Wyrich of Public Works, in testimony to Hearing Examiner. states Maxwell Avenue extends (indicating Flora Estates) to the boundary and it is a public road. We are making a connection between the two plats. She concludes that this requirement is a natural thing that Public Works requires when you have the stub of one property line of a Public Roadway.

• Pg. 364 I request the road remain private and also question due process by stating that the City may not deny any person within their jurisdiction equal protection of the laws.

• Pg. 67 Ms. Harnois told the Hearing Examiner that Flora Estates was mistakenly thought to be a PUD rather than a subdivision. The Hearing Examiner would assume our assertion Maxwell remain private was part of this mistake. Currently subdivisions are built with local access public roads – not private, contributing to the Hearing Examiner - missing the irregularities of Maxwell Ave.

• Pg. 67 Micki Harnois tells the Hearing Examiner that Flora Estates was approved as a subdivision and a rezone.

• Pg. 38 of the Hearing Examiner Decision – Spokane Valley Municipal Code: The decision of the Hearing Examiner is final and conclusive unless appealed within 14 calendar days of the Examiner’s written decision.

Public Works erred in stating they were merely continuing a public road that stubs into the next development.
• There wasn’t any legal justification since it was not recorded.

• Hearing Examiner’s Decision for Flora Estate cannot be changed. Substantial changes were made that did not follow a public process for change.
• No legal evidence of change – It is merely a conceptual mark on a map.
• Under Adminstrative Exception – roads cannot be legally changed – That would be a substantial change.

Problem: Can staff redefine standards set by the City Council to further extend Maxwell Ave at non-standard widths?

Hearing Examiner states all roads meet Public Road Standards as adopted by Spokane Valley. #71 City Road Standards specifies a paved width of 30 ft. – stating public roads in the preliminary plat will meet such standards.

Fact: Internal Street Bell, Sharp Ave., and Maxwell Ave., east of Bell are conditioned to be built as Local Access Public Streets requiring 30 ft. of pavement and a 2 ft. curb and gutter - consistent with public road standards.

Pg. 312 Valley Coach Estates preliminary map shows Maxwell Ave ending into Bell Street as of October 2006.

Pg. 313 Plat map shows changes to Maxwell Ave as a half road connecting to the narrow road within Flora Estates. Valley Coach Estates complied with road change demands of staff on Jan 22,2007 days before hearing.

Fact: Maxwell Ave. previously called Sinto Lane, was built within Flora Estates as a private road. The extension of Maxwell Ave., east to Bell Lane will not have 30 ft of pavement. Physically, the roads don’t match. Maxwell at Arc begins with 30ft.of asphalt, becomes 28 ft and narrows to 24 ft. by the time it exits on Flora. This does not meet local public road standards.

This is a public gifting of funds to accept a road dedication of a non-standard road as public. Unless the City typically accepts upkeep of private roads by any request, it violates due process.

Hearing Examiner’s Road Decision does not agree with the facts.

Maxwell Ave extension poses risks to public health, safety and welfare.
Problem with Staff Report and Staff Testimony

The City has the power to condition a development with adequate access but the City must demonstrate the need is directly related to the traffic generated by the development. The internal streets of Valley Coach Estates satisfied necessary road improvements. The City has not established a clear nexus for needing this road as required by state law. Cost of this improvement cannot be justified. It places a disproportionate burden on Ms. Austin. This is stealing from those who have the least by administrative fiat. This robs her of her rightful use of property, encumbering her land in all future plans. This road poses future traffic problems as they merge into heavy traffic expected on Flora.

Pg. 55-58 The Hearing Examiner relies on the staff as expert witnesses. Staff erred and did not represent Liberty Lake traffic impacts, especially on Flora, one of only two roads south, despite public concerns of Mr. McGuffin and others. Creating more cut through traffic exiting on Flora is irresponsible.

Pg. 20: The 2001 City Standards for Road and Sewer Construction recommend minimizing through traffic movements while providing access to all parcels of lands.

Pg. 56 Staff denied future connection to Mission from Indiana West coming east from Sullivan, since it’s not on the six year plan. How irresponsible, to deny future impacts. The connection to Indiana is on the City’s Comprehensive Plan’s Arterial Road Plan. Any development built would require connecting these roads. This was a serious omission. Washington Courts have ruled planning should look beyond their jurisdiction for impacts on roads. While connectivity of roads is also encouraged it is not always appropriate and the City allows for cul-de-sacs.

We contend that expansion of this road does not substantially advance legitimate state interest. and as such is a “takings.” It is not needed to serve either development. Roads were adequate as planned without this narrow road extended.

The Appeals Court in Miller vs. Port Angelos, stated the costs of these measures are to be borne by those who create the need. Neither Janice Austin nor Valley Coach needs this road. She should not bear the cost. She has access to Mission. Public health, safety and welfare are better served without this road.

Illegal Expansion of Administrative Authority?

Illegal expansion of administrative authority?
Shouldn’t the City Council decide acceptance of nonstandard roads prior to assuming cost for their maintenance since RCW 35.43.070 mandates that improvements can only be decided by a vote of the City Council?

Valley Coach Engineer states Maxwell cannot be constructed to standard, especially since condos are to house RV’s and RV’s will be using the road. City code states roads must be safe for intended use.

Staff erred in accepting as a public gift a road that does not meet public road standards in order to continue higher traffic volumes on the same non-standard size road. The City Council is charged with ensuring road development promotes orderly development of the City and serves the best interest of the residents. It is an arbitrary use of public funds to accept a private road without due process.

The City must follow rule of law.
Administrative exception is to serve the property owners to allow for potential mistakes. It is not intended to be utilized by the Staff for expansion of administrative power. (Note Chelan County vs. Nykreim 146 Wn 2d 904, 52 P .3d.1 (2002) An administrative decision that poses damage would require public notice to affected parties so they could appeal but no such notice was offered.

I submit that the applicable laws and regulations do not support the decision.
Summary
The decision Ms. Austin seeks is that the council reverse the Hearing Examiner’s Decision requiring extending Maxwell Ave east of Flora Estates as a half road. The decision is not supported by substantial evidence viewed in light of the entire record. This decision will remedy all violations of due process and her constitutional rights.

Flora Estates decision was final and conclusive. Maxwell Ave. being made public is a violation of Spokane Valley Municipal Code. The Hearing Examiner could not change this plat without another hearing
and ignored substantial changes to Flora Estates in making his decision. Staff improperly influenced the Hearing Examiner’s decision governing Valley Coach Estates.

Staff’s administrative decision was harmful and did not follow a lawful process for road change and influenced decision in Valley Coach Estates. The Hearing Examiner decision was prejudiced by omissions and inaccurate statements that led to approving the continuance of Maxwell Ave. This road decision must be rescinded.

The Director acted outside of the laws since the time frame had expired to appeal changes to the Flora Estates in the Hearing Examiner’s Decision of 2004. City Public Works describes Maxwell Ave inaccurately since there was no force of law to justify changes to the plat that created Maxwell Ave. as a public road.

The Hearing Examiner states the engineer may have broad discretionary powers, but this does not equate to unlawful authority that precludes due process.

Due process as a constitutional right, takes precedent and should guide all legal proceedings, codes and ordinances of the City. These cannot be abridged. This violates RCW 58.17 and RCW 64 and the due process provisions of the State and Federal Constitutions.

Please consider the gravity of ensuring the right to due process that was denied Ms. Austin. Review the facts and reverse the decision to extend Maxwell Ave. and its infringement on her property and her future.

Thanks to all that Came.

It makes a difference when the Council has a room of witnesses when they have a hearing. We are all so busy - I cannot thank you enough for supporting Janice Austin. If the City will violate one person's constitutional rights - none of us are safe. Pray for a good decision. It looks very favorable. I believe the arguments were strong but we won't know until the Council renders their decision on June 19, 2007.
Hope to see you there.
Mary Pollard