1 The Honorable John Ruhl

FILED
2019 MAY 23 03:59 PM
Hearing Date: May 31, 2019 at 3:00 p.m.
2
KING COUNTY
3 SUPERIOR COURT CLERK
E-FILED
4 CASE #: 19-2-10001-0 SEA

8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR KING COUNTY
9
SAVE MADISON VALLEY,
10

11 Petitioner, NO. 19-2-10001-0 SEA

12 v.
SAVE MADISON VALLEY’S
13 CITY OF SEATTLE; VELMEIR MOTION TO DISMISS
MADISON CO. LLC; and BROE
14
HARLEY,
15
Respondents.
16

17 I. RELIEF REQUESTED
18
Petitioner Save Madison Valley moves for dismissal of its own Land Use Petition for lack of
19
subject matter jurisdiction pursuant to CR 12(b)(1). The Land Use Petition challenges an interlocutory
20
administrative decision that is not ripe for judicial review and should be dismissed without prejudice.
21

22 While it is admittedly unusual for a Petitioner to request dismissal of its own Land Use

23 Petition, the unpredictable and unforgiving nature of deadlines for filing petitions under the Land Use

24 Petition Act (LUPA), ch. 36.70C RCW compelled us to act with precaution by filing the petition and
25 then seeking a formal court order for dismissal without prejudice.
26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 1 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 II. STATEMENT OF FACTS
2 Respondent Velmeir Madison Co. has proposed development of a six-story structure
3
consisting of 82 residential units and over 25,000 square feet of retail space at 2925 East Madison
4
Street in Seattle in the Madison Valley neighborhood. Land Use Petition (Apr. 10, 2019) at 4.
5
The Director of the Seattle Department of Construction and Inspections (SDCI) issued a
6

7 decision approving the East Madison Street Proposal (“Director’s Decision”) on July 23, 2018. Id. at

8 5. In that Decision, the Director issued a Determination of Non-Significance for the Proposal pursuant

9 to the Washington State Environmental Policy Act (SEPA), ch. 43.21 RCW. Id. This meant that the
10
City of Seattle would not prepare an environmental impact statement, which is required by SEPA for
11
projects that will have probable significant adverse impacts. Id.
12
Save Madison Valley appealed the Director’s Decision to the City of Seattle Hearing Examiner
13
on August 6, 2018. Id. After holding a hearing on the appeal, the City of Seattle Hearing Examiner
14

15 issued the land use decision that is on appeal in this Land Use Petition. Id., Ex A (Findings and

16 Decisions of the Hearing Examiner in File No. MUP-18-020 and S-18-01 (Feb. 26, 2019).
17 In her decision, the Hearing Examiner reversed and remanded the Director’s Decision to issue
18
a Determination of Non-Significance. Hearing Examiner Findings and Conclusions at 44. The Hearing
19
Examiner upheld Save Madison Valley’s appeal on two key issues that had been presented on appeal.
20
First, the Examiner concluded that the Determination of Non-Significance with respect to drainage
21

22 impacts caused by the proposal was clearly erroneous and there was clear and convincing evidence

23 that a mistake had been made:

24 Blind reliance on compliance with development regulations to meet

SEPA requirements is inappropriate, especially in this case where there
25 is concrete evidence of significant adverse environmental impact in the
26 2006 storm due to inadequate drainage systems. While it is not the

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 2 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 easier prescriptive path, there are some instances in which such review
is necessary under SEPA. . . .
2

3 Given these facts as documented in the record, there is no choice but

to find the threshold determination invalid with respect to drainage.
4
Hearing Examiner Findings and Decision at 39-40.
5
Second, the Examiner concluded that the Director’s Determination of Non-Significance with
6

7 respect to shadow impacts caused by the proposal had been issued in error.

8 Since the SEPA Responsible Official did not apply this SMC
25.05.675.Q.2 to the project, the decision must be reversed and
9 remanded to allow study and consideration of this issue by the
Department. The Examiner encourages the Department to work with
10
representatives of the Mad Pea Patch to assure that the analysis focuses
11 on the appropriate times of the year when light is critical to the garden’s
operation. . . .
12
A SEPA threshold determination decision with respect to shadow
13 impacts should be reversed, and the matter remanded to the
Department for further actions in compliance with this decision.
14

15 Hearing Examiner Findings and Decision at 43.

16 The Hearing Examiner denied all of the other challenges brought on appeal by Save Madison
17 Valley.
18
The project approvals are now on hold until the additional environmental review ordered by
19
the Examiner is completed.
20
LUPA provides jurisdiction for superior court review of final land use decisions made by
21

22 counties and cities. RCW 36.70C.030. Save Madison Valley filed a Land Use Petition pursuant to

23 LUPA petition on April 10, 2019 in which it challenged the Hearing Examiner’s decision to deny

24 issues presented in the appeal other than the drainage and shadow issues. While Save Madison Valley
25 does not believe that there was a final land use decision that could be challenged under LUPA, Save
26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 3 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 Madison Valley filed its petition to preserve its rights to appeal the Examiner’s conclusions on those
2 other issues under LUPA.
3
III. STATEMENT OF ISSUE
4
Was the Hearing Examiner’s remand of the SDCI decision for additional environmental
5
review a final land use decision subject to the Land Use Petition Act, RCW Ch. 36.70C?
6

7 IV. EVIDENCE RELIED UPON

8 This Motion relies on the pleadings that have been filed by the parties in this matter.

9 V. ARGUMENT
10
A. Standard of Review.
11
Whenever a pleading fails to establish that a court has subject matter jurisdiction over a matter,
12
a court must dismiss the action. CR 12(b)(1). “Without subject matter jurisdiction, a court or
13
administrative tribunal may do nothing other than enter an order of dismissal.” Inland Foundry Co.,
14

15 Inc. v. Spokane County Air Pollution Control Auth., 98 Wn. App. 121, 123–24, 989 P.2d 102 (1999).

16 Dismissal is appropriate if it appears beyond doubt that the plaintiff can prove no set of facts, consistent
17 with the complaint, which would entitle the plaintiff to relief. Asche v. Bloomquist, 132 Wn. App.
18
784, 790, 133 P.3d 475 (2006).
19
B. The Hearing Examiner’s Decision Was Not a Final Land Use Decision Subject to
20 LUPA.
21 The Petitioners’ LUPA petition must be dismissed because there is no final land use decision
22
for the Petitioners to challenge. Quite simply, the Petitioners have prematurely filed the LUPA petition
23
before the City has made its final land use decision. Before the developers can file a LUPA petition,
24
the administrative process must fully play out.
25

26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 4 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 LUPA provides “the exclusive means of judicial review of land use decisions.” RCW
2 36.70C.030(1). A “land use decision” is defined as “a final determination by a local jurisdiction's
3
body or officer with the highest level of authority to make the determination, including those with
4
authority to hear appeals . . .” RCW 36.70C.020(2) (emphasis supplied). Consequently, an aggrieved
5
party may only file a LUPA petition when a decision is “final.” In the context of LUPA, a final
6

7 decision “is one which leaves nothing open to further dispute and which sets at rest cause of action

8 between parties.” Samuel’s Furniture, Inc. v. State, Dept. of Ecology, 147 Wn.2d 440, 452, 54 P.3d

9 1194 (2002). The finality requirement of LUPA eliminates “premature judicial intrusion into land use
10
decisions.” Grandmaster Sheng-Yen Lu v. King County, 110 Wn. App. 92, 101, 38 P.3d 1040 (2002).
11
Without a land use decision, a superior court does not have jurisdiction to hear a LUPA petition. See
12
Durland v. San Juan County, 182 Wn.2d 55, 64, 340 P.3d 191 (2014).
13
A final land use decision has not occurred when an administrative review results in a remand
14

15 back to an administrative agency to correct errors. For instance, in Stientjes Family Trust v. Thurston

16 County, 152 Wn. App. 616, 217 P.3d 379 (2009), the Thurston County Board of County
17 Commissioners remanded an administrative challenge to a construction site plan to the Thurston
18
County hearing examiner for further proceedings. Rather than allowing the hearing examiner to
19
conduct further proceedings consistent with the remand, the petitioners filed a LUPA petition in
20
Thurston County Superior Court challenging the Board of County Commissioners’ remand. Id. at
21

22 620. The court noted that “[a] local jurisdiction’s decision concerning a building permit application

23 is final for purposes of LUPA if a party receives the relief it had requested and no additional issues

24 remain.” Id. at 624–5. Because additional issues remained for the hearing examiner to decide on
25 remand, the Board of County Commissioners’ decision was not a final land use decision. Id. at 625.
26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 5 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 Similarly, in Mellish v. Frog Mountain Pet Care, 172 Wn.2d 208, 257 P.3d 641 (2011), our
2 Supreme Court held that a timely-filed motion for reconsideration filed with the Jefferson County
3
hearing examiner tolled the running of LUPA’s 21-day statute of limitations. While the hearing
4
examiner’s original ruling on a conditional use permit and variance was final before the motion for
5
reconsideration was filed, the court held that the permit “was once again open to dispute” when the
6

7 motion for reconsideration was filed and, therefore, “the hearing examiner’s initial decision does not

8 fit the definition of ‘final decision’ provided in Samuel’s Furniture.” Id. at 217.

9 Here, the amended findings and decision of the Seattle Hearing Examiner did not constitute a
10
final land use decision “which leaves nothing open to further dispute and which sets at rest cause of
11
action between parties.” Namely, the Hearing Examiner remanded the Determination of Non-
12
Significance back to SDCI for the purpose of evaluating the drainage and shadow impacts of the
13
proposal. Much like in Stientjes, there are still issues to be resolved on remand and the Hearing
14

15 Examiner’s decision is not a final land use decision that can be appealed under LUPA.

16 It is irrelevant that the Hearing Examiner affirmed a portion of the Determination of Non-
17 Significance because all of the issues at dispute between the parties must be resolved before a land use
18
decision becomes final. A decision on a land use application “is final for purposes of LUPA if a party
19
receives the relief it had requested and no additional issues remain.” Stientjes, 152 Wn. App. at 624–
20
5 (emphasis supplied).
21

22 Because there has been no determination that would constitute a final land use decision, this

23 Court lacks subject matter jurisdiction over the petition because LUPA only provides for judicial

24 review of final land use decisions. RCW 36.70C.030.

25

26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 6 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 VI. CONCLUSION
2 Save Madison Valley respectfully requests that this Court dismiss the its Land Use Petition
3
without prejudice on the grounds that it is premature. The issues presented by Save Madison Valley
4
can and should be presented in a LUPA petition after the remand process has concluded.
5
Dated this 23rd day of May, 2019.
6

7 Respectfully submitted,

8 BRICKLIN & NEWMAN, LLP

10
By:
11 Claudia M. Newman, WSBA No. 24928
Attorneys for Save Madison Valley
12

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25

26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
SAVE MADISON VALLEY’S MOTION TO DISMISS - 7 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 The Honorable John Ruhl
Hearing Date: May 31, 2019 at 3:00 p.m.
2

7
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
8 IN AND FOR KING COUNTY

9 SAVE MADISON VALLEY,

10
Petitioner, NO. 19-2-10001-0 SEA
11
v.
12 [PROPOSED] ORDER OF
CITY OF SEATTLE; VELMEIR DISMISSAL
13 MADISON CO. LLC; and BROE
HARLEY,
14

15 Respondents.

16 The Court having considered Save Madison Valley’s Motion to Dismiss and the responses and
17 reply to the motion, for good cause shown, and in the interests of justice, hereby GRANTS the motion.
18
Accordingly, IT IS HEREBY ORDERED that this case is dismissed without prejudice.
19
DONE IN OPEN COURT this _____ day of May, 2019.
20

21

22

23 THE HONORABLE JOHN RUHL

King County Superior Court Judge
24

25

26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
[PROPOSED] ORDER OF DISMISSAL - 1 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
1 Presented by:
2 BRICKLIN & NEWMAN, LLP
3

4
By:
5 Claudia M. Newman, WSBA No. 24928
Attorneys for Save Madison Valley
6

7
Approved as to form:
8
STOEL RIVES LLP
9

10

11 By: ___________________________________
Patrick J. Mullaney, WSBA # 21982
12 Attorneys for Velmeir Madison Co. LLC

13 SEATTLE CITY ATTORNEY’S OFFICE

14

15
By: ____________________________________
16 Elizabeth Anderson, WSBA #34036
Attorney for City of Seattle
17
HELSELL FETTERMAN LLP
18

19

20 By: ___________________________________
Brandon S. Gribben, WSBA # 47638
21 Samuel M. Jacobs, WSBA # 8031
22 Attorneys for Broe Harley

23

24

25

26

Bricklin & Newman, LLP

Attorneys at Law
1424 Fourth Avenue, Suite 500
[PROPOSED] ORDER OF DISMISSAL - 2 Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
 FILED
1 2019 MAY 29 12:15 PM Hon. John R. Ruhl
KING COUNTY
2 SUPERIOR COURT CLERK
E-FILED
3
CASE #: 19-2-10001-0 SEA
4

7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

FOR KING COUNTY
8
SAVE MADISON VALLEY, No. 19-2-10001-0 SEA
9
Petitioner, VELMEIR’S RESPONSE IN
10 OPPOSITION TO MOTION TO
v. DISMISS
11
CITY OF SEATTLE; VELMEIR MADISON
12 CO. LLC; and BROE HARLEY,

13 Respondents.

14
I. INTRODUCTION
15
Respondent, Velmeir Madison Company, LLC (“Velmeir”) opposes Petitioner, Save
16
Madison Valley’s (“SMV’s”), Motion to Dismiss and requests a prompt adjudication of the
17
issues that are before the Court. SMV’s Motion should be denied on multiple grounds,
18
including: 1) it is clear that Seattle’s Hearing Examiner intentionally made a final land use
19
decision that was subject to appeal under Washington’s Land Use Petition Act (Ch. 36.70C
20
RCW (“LUPA”)); 2) LUPA requires that a petition be filed within 21 days of a land use
21
decision, and SMV should not be allowed to withdraw and recast its appeal at some future date;
22
3) SMV did not raise the issue of completeness of the Examiner’s decision in its appeal and is
23
therefore barred from raising it now; 4) the policy behind LUPA is to expedite review of
24
administrative land use decisions to provide finality; and 5) SMV’s motion to dismiss is untimely
25
and filed in violation of LCR 7(b)(4)(a), as it was not filed six court days before the hearing date.
26

Response in Opposition to Motion to Dismiss - 1

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 II. LEGAL ARGUMENT

2 A. The Seattle Hearing Examiner Issued a Final Decision That Is Subject to

LUPA.
3
Washington courts have long recognized the strong public policy evidenced in LUPA
4
supporting administrative finality in land use decisions. Chelan County v. Nykriem, 146 Wn.2d,
5
904, 931–32, 52 P.3d 1 (2002) (finding that express language in LUPA supports finality).
6
Establishing definite time limits allows property owners to proceed with assurance in developing
7
their property. Id.
8
Velmeir’s project has been under review for over three years. HE Decision, p. 3 (noting
9
that “the proposal went through extensive review”), Declaration of Patrick J. Mullaney
10
(“Mullaney Decl.”), Ex. 1. Following an administrative process that spanned seven months and
11
included seven days of testimony and exhaustive pre- and post-hearing briefing, the Seattle
12
Hearing Examiner issued a 45-page decision that disposed of 99% of SMV’s appeal issues.
13
The Examiner remanded two issues to City for further analysis—1) whether the project’s
14
stormwater detention system could contribute to catastrophic surface water flooding of local
15
streets during an extreme storm event; and 2) whether a community P-Patch garden, which is
16
located on unopened SDOT right-of-way, was subject to heightened projection from shadow
17
impacts under the City’s substantive SEPA regulations. See HE Decision, pp. 37-40
18
(stormwater) and 42-43 (shadows).
19
At the close of her decision, under the heading “Concerning Further Review”, the
20
Examiner specifically stated that she was making a final decision subject to appeal under LUPA:
21

22 The decision of the Hearing Examiner in this case is the final decision of the
City of Seattle. In accordance with RCW 36.70C.040, a request for judicial
23 review of this decision must be commenced within twenty-one (21) days of the
date the of the decision . . . .
24
HE Decision, p. 44, Mullaney Decl. Ex. 1 (emphasis added).
25

26

Response in Opposition to Motion to Dismiss - 2

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 The day after the Examiner issued her decision, City senior land use analyst, William

2 Mills, contacted the Examiner’s clerk, Ms. Alayna Johnson, to inquire about whether the

3 Examiner was retaining jurisdiction pending remand. The clerk again confirmed that the

4 Examiner had made a final decision:

5 Yesterday, Mr. Mills asked if the Hearing Examiner is retaining jurisdiction

over the Save Madison Valley matter. I spoke with the Examiner and she told
6 me that we typically do not retain jurisdiction over remands and if we were
retaining jurisdiction the decision would expressly say so.
7
February 28, 2019 email from Alayna Johnson, Mullaney Decl. Ex. 2 (emphasis added).
8
The language in LUPA is clear: A petition for judicial review of a land use decision is
9
barred unless timely filed within 21 days of issuance of the decision. RCW 36.70C.040(2).
10
SMV did not challenge the form of the Examiner’s decision in its Petition, and therefore, SMV is
11
barred from raising it now. SMV Petition, Mullaney Decl. Ex. 3.
12
Additionally, the Court should not allow the Petitioners to file one appeal and then to
13
withdraw it, only to recast and refile it at some point in the future. To serve the purpose of
14
timely review, LUPA contains a stringent filing deadline. Issues that are not filed in a timely
15
manner are barred. RCW 36.70C.040(3); Habitat Watch v. Skagit County, 155 Wn.2d 397, 407,
16
120 P.3d 56 (2005) (untimely action is barred); San Juan Fidalgo Holding Co. v. Skagit County,
17
87 Wn. App. 703, 713-14, 943 P.2d 341 (1997) (failure to timely serve LUPA petition barred
18
action). Here, SMV should be required to prosecute the appeal that it filed within 21 days of the
19
Examiner’s decision. It would be contrary to the policies of LUPA and prejudicial to Velmeir’s
20
rights to grant SMV its requested ‘do-over’, which would afford SMV the opportunity to re-write
21
its appeal at some future date.
22

23 B. SMV Is Not Prejudiced by Being Required to Prosecute Its Case.

The purpose of LUPA is to establish uniform, expedited appeal procedures to effectuate
24
consistent, predictable, and timely judicial review. RCW 36.70C.010. LUPA’s 21–day statute
25
of limitations is strict and jurisdictional; the doctrine of substantial compliance does not apply.
26

Response in Opposition to Motion to Dismiss - 3

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 RCW 36.70C.040(2); Asche v. Bloomquist, 132 Wn. App. 784, 795–96, 133 P.3d 475 (2006);

2 Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 180-81, 4 P.3d 123 (2000).

3 In Nykriem, the Court explained that LUPA recognizes a “strong public policy supporting

4 administrative finality in land use decisions” and that to recognize an exception to LUPA’s

5 definite time limits “would completely defeat the purpose and policy of the law. . . .” Chelan

6 County v. Nykriem, 146 Wn.2d, 904, 931, 52 P.3d 1 (2002) (without finality in land use

7 decisions, no owner of land would ever be safe in proceeding with development of his property).

8 Id. at 932-33.

9 Here, the Examiner issued a final decision that ruled against SMV on numerous claims

10 including design review, aesthetics, height, bulk and scale, traffic, landscaping, tree retention,

11 wildlife habitat, steep slope development, building height calculation, noise and construction

12 impacts. See generally, HE Decision, Mullaney Decl. Ex. 1, SMV Petition, ¶ 4.14, pp. 6-7,

13 Mullaney Decl. Ex. 3. Velmeir has already endured a 3-year review and administrative appeal

14 process, and it is prejudiced by further delay. Consistent with the policies underpinning LUPA,

15 Velmeir is entitled to have SMV’s appeal addressed expeditiously. SMV is not prejudiced by

16 having it bring forth the evidence it contends supports the issues raised in its Petition.

17 C. The Remanded Issues Do Not Affect the Court’s Ability to Review SMV’s
LUPA Appeal.
18
Recently, the City requested additional information from Velmeir on the discrete
19
remanded issues. May 22, 2019 Correction Notice, Mullaney Decl. Ex. 4. The process that the
20
City ultimately follows on remand to address those discrete issues will depend on its evaluation
21
of the information submitted, and SMV will have whatever appeal rights are associated with that
22
process and that are consistent with applicable law. See e.g. RCW 43.21C.075 (appeals); RCW
23
43.21C.240 (project review under the Growth Management Act); RCW 36.70B.030 (project
24
review-required elements-limitations); and RCW 36.70B.060 (integrated and consolidated permit
25

26

Response in Opposition to Motion to Dismiss - 4

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 process required elements). Whatever the City’s timing and process on remand, it should not

2 delay a prompt adjudication of SMV’s pending appeal.

3 D. SMV’s Motion to Dismiss Is Untimely.

4 In relevant part, King County LCR 7(b)(4)(A) provides “[t]he moving party shall serve

5 and file all motion documents no later than six court days before the date the party wishes the

6 motion to be considered.” Emphasis added. Per CR 6(a), in computing time periods, the day of

7 the act is not included, and when the period of prescribed time is less than 7 days, intermediate

8 Saturdays, Sundays and legal holidays are excluded from the computation. RCW 1.16.050(1)(e)

9 establishes Memorial Day as a legal holiday.

10 SMV filed its motion on May 23, 2019 and requested a hearing on May 31, 2019. May

11 23, 2019 Notice of E-Service and SMV Motion Note, Mullaney Decl. Exs. 5 and 6, respectively.

12 Because SMV failed to account for Memorial Day, its motion was filed only five court days

13 before the requested hearing. As such, SMV’s Motion is untimely pursuant to LCR 7(b)(4)(a)

14 and should be denied.

15 III. CONCLUSION
16 Leaving land use decisions open “places property owners in a precarious position and

17 undermines the Legislature’s intent to provide expedited appeal procedures in a consistent,

18 predictable and timely manner.” Nykriem, 146 Wn.2d, 904, 933, 52 P.3d 1 (2002). Consistent

19 with LUPA’s underlying policies, Velmeir requests that the Court deny SMV’s Motion to

20 Dismiss and expeditiously proceed to a hearing on the merits of SMV’s appeal.

21
I certify that this response in opposition contains 1398 words and is in compliance with
22
the Local Civil Rules.
23

24

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Response in Opposition to Motion to Dismiss - 5

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1
DATED: May 29th, 2019.
2 STOEL RIVES LLP

4 /s/ Patrick J. Mullaney

Patrick J. Mullaney, WSBA No. 21982
5 patrick.mullaney@stoel.com
6 Attorneys for Respondent
Velmeir Madison Co. LLC
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Response in Opposition to Motion to Dismiss - 6

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 CERTIFICATE OF SERVICE
2 I, Sharman D. Loomis, certify and declare:
3 I am over the age of 18 years, make this declaration based upon personal knowledge, and
4
am competent to testify regarding the facts contained herein.
5
On May 29, 2019, the foregoing document, Velmeir’s Response in Opposition to Motion
6
to Dismiss, was electronically filed with King County Superior Court, and I served true and
7

8 correct copies of the document on the following persons in the manner listed below:

9 Claudia M. Newman, WSBA #24928 ☒ Email

Bricklin & Newman, LLP newman@bnd-law.com
10 1424 Fourth Avenue, Suite 500 ☒ U. S. Mail
Seattle, WA 98101  Legal Messenger
11
Tel: 206) 264-8600  Overnight Mail
12
Broe Harley  Email
13 4163 Beach Drive S.S., Apt. 101 ☒ U. S. Mail
Seattle, WA 98116  Legal Messenger
14
 Overnight Mail
15
TVC Madison Co. LLC  Email
16 5757 West Maple, Suite 800 ☒ U. S. Mail
17 West Bloomfield, MI 48322  Legal Messenger
 Overnight Mail
18
Elizabeth Anderson, WSBA #34036 ☒ Email
19 Asst. City Attorney liza.anderson@seattle.gov
20 Seattle City Attorney’s Office ☒ U. S. Mail
701 Fifth Avenue, Suite 2050  Legal Messenger
21 Seattle, WA 98101-7097  Overnight Mail
Tel: 206-684-8200
22

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Response in Opposition to Motion to Dismiss - 7

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 I certify under penalty of perjury under the laws of the State of Washington that the
2 foregoing is true and correct.
3
DATED: May 29, 2019 at Seattle, WA.
4
STOEL RIVES, LLP
5

7 s/ Sharman D. Loomis
Sharman D. Loomis, Practice Assistant
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Response in Opposition to Motion to Dismiss - 8

STOEL RIVES LLP

ATTORNEYS
600 University Street, Suite 3600, Seattle, WA 98101
102095881.1 0069659-00002 Telephone 206.624.0900
 1 FILED
2 2019 JUN 04 03:47 PM
KING COUNTY
3 SUPERIOR COURT CLERK
E-FILED
4 CASE #: 19-2-10001-0 SEA

7
SUPERIOR COURT OF WASHINGTON
8 FOR KING COUNTY

9 SAVE MADISON VALLEY, NO. 19-2-10001-0 SEA

10 Plaintiff, ORDER OF DISMISSAL
WITHOUT PREJUDICE
11
v.
12
CITY OF SEATTLE; VELMEIR MADISON
13 CO. LLC; and BROE HARLEY,
14 Defendant.
15

16
This matter has come before the court for consideration of Plaintiff Save Madison
17
Valley’s Motion to Dismiss (Dkt. 18).
18
The Court has considered the pleadings and other documents filed by the parties, and in
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particular the following items:
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Pleading Dkt. No.
21
Save Madison Valley’s Motion to Dismiss 18
22
Velmeir Madison Co., LLC’s Response in Opposition to Motion to 22
23
Dismiss
24
Declaration of Patrick Mullaney in Opposition to Motion to Dismiss 23
25
Petitioner’s Reply in Support of Motion to Dismiss 27

ORDER OF DISMISSAL
WITHOUT PREJUDICE - 1
 1 Although the Petitioner urges the court to dismiss the Land Use Petition (Dkt. 1) on

2 grounds that the court lacks subject matter jurisdiction pursuant to CR 12(b)(1), the court need

3 not reach that issue.

4 At this stage of the proceeding, CR 41(a)(1)(B) permits the Petitioner to obtain an order

5 dismissing its own claims for any reason. CR 41(a)(1)(B) provides:

6 (a) Voluntary Dismissal.

7 (1) Mandatory. Subject to the provisions of rules 23(e) and

23.1, any action shall be dismissed by the court:
8
***
9
(B) By plaintiff before resting. Upon motion of the
10 plaintiff at any time before plaintiff rests at the
conclusion of plaintiff's opening case.
11
Thus, pursuant to CR 41(a)(1)(B), the court orders as follows:
12
1. The court grants Petitioner Save Madison Valley’s Motion to Dismiss (Dkt. 18).
13
2. The court dismisses the Petitioner’s Land Use Petition (Dkt. 1), without
14
prejudice.
15
Date: June 4, 2019.
16
s/ John R. Ruhl
17 John R. Ruhl, Judge
18

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ORDER OF DISMISSAL
WITHOUT PREJUDICE - 2
 19-2-10001-0
SAVE MADISON VALLEY vs SEATTLE CITY OF ET AL

" ORDER OF DISMISSAL WITHOUT PREJUDICE

John Ruhl
" 6/4/2019 3:47:49 PM

/Commissioner: John Ruhl

2 3 2 2 4 / 5)!
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$ $$ 4 3/18/2019 8:27:16 AM
$ 6 3/18/2024 8:27:16 AM
$ , C=US, E=kcscefiling@kingcounty.gov, OU=KCDJA,
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