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2020-10-07 PLN2020-0037 City request for reconsideration Order Correcting NoticeCITY OF EDMONDS 121 5th Avenue North, Edmonds WA 98020 Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa.gov DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION Diamond Parking Services CUP Request for Reconsideration Page 1 of 3 REQUEST FOR RECONSIDERATION – ORDER CORRECTING NOTICE Project: Diamond Parking Services LLC File Numbers: PLN2020-0037 – Conditional Use Commercial Parking Date: October 7, 2020 From: __ __________________________ Mike Clugston, AICP, Senior Planner I believe the contents of this request to be true. I. CITY REQUEST FOR RECONSIDERATION OF HEARING EXAMINER’S ORDER TO CORRECT NOTICE On September 29, 2020, the Hearing Examiner issued an Order to Correct Notice for the referenced public hearing. In the Order, the Examiner requested that: “Notice required by ECDC 1.03.020 shall be posted in the areas currently1 required by ECDC 1.03.020 at least 14 days prior to the date of a re-opened hearing. Staff is free to add any additional hearing notice it deems appropriate. 1 To be safe, it would be best if staff posted at the locations under the current version of ECDC 1.03.020 and that which was in effect 14 or more days prior to the August 27, 2020 hearing date. If the US Post Office and/or library is closed to the public and staff doesn’t have access to the notice boards in those buildings, staff need not post in those locations.” According to Section 20.06.140 of the Edmonds Community Development Code (ECDC), any party of record with standing may request reconsideration of a decision the Hearing Examiner issues immediately after the open record public hearing on a land use permit application. Reconsideration is limited to: Diamond Parking Services CUP Request for Reconsideration Page 2 of 3 1. Error(s) of procedure; 2. Error(s) of law or fact; 3. Error(s) of judgement; and/or 4. The discovery of new evidence that was not known and could not, in the exercise of reasonable diligence, have been discovered. The City requests that the following error of fact be revised. The code references to “ECDC 1.03.020” should be to “Edmonds City Code (ECC) 1.03.020”. The City requests that the following errors of procedure be revised. At the time public notice of the subject hearing was posted on August 10, 2020, ECC 1.03.020 required the following three locations to be posted: A. Public bulletin board in the Edmonds Civic Center, 250 Fifth Avenue North, Edmonds, Washington, 98020; B. Public bulletin board in the Edmonds Public Library, 650 Main Street, Edmonds, Washington, 98020; and C. Public bulletin board, Edmonds branch of the United States Post Office, 201 Main Street, Edmonds, Washington. Due to building closures resulting from COVID-19, the public bulletin boards in the Edmonds Civic Center (now the Public Safety Complex) and the Edmonds Public Library were closed to the public. Staff did not have access to those locations and could therefore not post them. Furthermore, because those buildings were closed to the public during the relevant period, posting a notice inside those buildings would not have contributed to public notice of the hearing. More importantly, the September 29, 2020 hearing examiner order directs that notice be provided in a manner that is no longer possible. Specifically, the Edmonds Post Office at 201 Main Street, and the public bulletin board inside it, no longer exists. That building was demolished in 2017. The City does not believe that the examiner would have required this notice procedure had he known about the building demolition. But the order as written, because it requires the impossible, constitutes procedural error, unless the order is interpreted to only require compliance with the version of ECC 1.03.020 that took effect on August 23, 2020. To correct the code regarding posting notices at the Post Office site, the Edmonds City Council passed Ordinance 4193 on July 21, 2020. As of the August 23, 2020 effective Diamond Parking Services CUP Request for Reconsideration Page 3 of 3 date of the ordinance, public notice now must be posted at the following three locations: A. Public bulletin board in the Edmonds Public Safety Complex, 250 Fifth Avenue North, Edmonds, Washington, 98020; B. Public bulletin board in the Edmonds Public Library, 650 Main Street, Edmonds, Washington, 98020; and C. Public bulletin board, Edmonds City Hall, 121 Firth Avenue North, Edmonds, Washington. This version of the code was not in effect on August 10, 2020. Staff posted the notice for the referenced hearing as required by the code on August 10, 2020 to the extent that was possible. As noted above, both the Public Safety Complex and Public Library were closed due to COVID-19 so access to the public bulletin board in those buildings was not possible. The old Post Office building at 201 Main Street no longer existed. And even if the new version of ECC 1.03.020 had been in effect on August 10, 2020, Edmonds City Hall is closed to the public except by appointment. So, posting on that bulletin board would have been of little benefit to the public. As a result, staff requests that the referenced hearing not be re-opened for additional posted notice because the project was posted as able on August 10, 2020 given the circumstances at that time. Alternatively, if the hearing examiner still believes that additional compliance with ECC 1.03.020 is necessary, the City asks that the examiner direct compliance with the version of the code that existed on September 29, 2020, but only to the extent that such buildings are open to the public.