Reported here on March 13, 2008 was this story titled,
“JZ Knight challenges City of Yelms approval of five proposed subdivisions” [Tahoma Terra Phase II, Divisions 5 & 6; Windshadow I; Windshadow II; Wyndstone; and Berry Valley I].
“Knight files Land Use Petition in Superior Court of Washington citing lack of available water resources to meet current & existing demand.”
The case started in July, 2007 in front of the Yelm Hearing Examiner and continued through appeals to the Yelm City Council and State Superior Court. The hearing on the merits of the case came before Superior Court Judge Chris Wickham on Wednesday, October 1, 2008 in Olympia.
Judge Wickham listened to the points filed by attorneys for JZ Knight, the petitioner and attorneys for the City of Yelm and the land developers, the respondents. The Judge’s Letter Opinion was issued on October 7, 2008.
Read Judge Wickham’s October 7th Letter Opinion in the case of JZ Knight vs. City of Yelm et al for yourself!
The City has to provide water to its citizens according to its legal entitlements under the water laws of the State. Those legal entitlements are allocated to the City by way of certificated water rights that are issued and administered by the State of Washington Dept. of Ecology (DOE).
At issue between the City, the developers & Knight is when and in what form those water resources must be presented as a condition of development approval by the city to a developer, and then proven as a resource to that development.
Petitioner – JZ Knight:
In a statement issued by Keith Moxon, attorney for petitioner Knight, he states that just a ‘reasonable expectation’ of potable water [the City’s language they are defending] is not sufficient to meet the legal requirement of making ‘appropriate provisions’ for a potable water supply.”
Respondents – City of Yelm & developers:
The City of Yelm and the developers have been arguing that the City does not need to have DOE approved water rights at the time of subdivision approval. The City claimed it is sufficient to have a “reasonable expectation” of getting them by the time building permits for homes are issued. However the time between a subdivision’s approval and issuance of a permit to build a house in that subdivision can be years, and in that time, many conditions can change, including water availability. The Judge cited in the courtroom the abrupt downturn in the economy as but one example of how quickly a situation can change. He asked how the City can know years down the road if water can be provided at the building permit phase, yet after a development has been approved and the developers are long gone. In his questioning, he got City of Yelm attorney Richard Settle to agree water is a finite resource.
Washington State Dept. of Ecology:
As a unique aspect of this case, the DOE requested to provide information to the Court by way of an Amicus Curiae (friend of the court) Brief. The Judge acknowledged this request and allowed such a brief to be admitted into the record. Petitioner Knight, the Judge and the DOE all agreed that the City does not even have water rights to cover existing water usage, let alone enough for new subdivision developments.
Appropriate provisions must be proven before final approval of any subdivision. The City has been in denial that they have to prove anything other than a “reasonable expectation” of water availability before a building permit is issued, at some point long after final subdivision approval.
To the contrary, the Judge agreed with Petitioner Knight that a “reasonable expectation” of potable water is not sufficient to meet the legal requirement of making “appropriate provisions” for a potable water supply. The Judge required the City to prove it has an adequate water supply at the time of final plat approval for these five subdivisions.
The Judge will sign a formal order to put this decision in effect within a week or two.
The Olympian has this to say on this case:
“JZ Knight wins land-use appeal
Planned housing blocked; judge cites lack of water right”
STAY TUNED FOR FURTHER DEVELOPMENTS.