Regarding the NVN front-page story last week concerning the case of JZ Knight vs City of Yelm et al titled “Lawsuit Ruling: Business as usual”, the NVN article presented one issue that was resolved in Court and agreed by all. However, totally omitted was what Judge Wickham had to say in his Letter Opinion dated October 7, 2008 about the second issue that was the crux of the case.
Also interesting that the Mayor did not address this issue in the NVN story either.
Did the NVN & the Mayor not read the Judge’s letter?

One has to wonder why this was omitted, especially since this is the part of the Judge’s Opinion with which Developers Bloom & Chamberlain have issue when they wrote the NVN last week,
“Recently, we spent hundreds of thousands of our hard-earned money in attorney and consultant fees defending our livelihood.
Other local developers.builders and the city also spent an equivalent amount and for what?”

For what, they ask?
That was presented by Knight’s attorney before a Hearing Examiner in Yelm and the Yelm City Council in 2007, which has now been addressed by the Thurston County Superior Court –
to get the City of Yelm to follow the laws of the State of Washington on water.
[Ed. Note: Bloom & Chamberlain knew all along there was not enough water to support these developments, as they have been feverishly attempting to acquire water rights for their properties for a couple of years now. Did they just go along and trust the City, expecting no one would be perceptive that there was not enough water or go to Superior Court if they did notice? Wise developers should make absolutely certain the city has the water available before committing on any development. Otherwise, they may sink alot of money into a project, not be permitted to build and accrue out-of-pocket expenses they may never be able to recoup.]

Judge Wickham noted the second issue was the one in dispute, which is:
“what level of proof of adequate potable water must be shown to allow the development?”
“The Washington Water Code requires that Ecology determine whether water sought is physically and legally available for use.”

The Judge stated “Petitioner [Knight] has presented evidence…to support its position that the City has been issuing building permits since 2001 that committed it to the supply of water in excess of its water rights.”

The State Dept. of Ecology agreed with Knight and also presented documented records of the city’s shortfall saying,
“At present, therefore, the City (Yelm) does not have ‘a potable water supply adequate to serve the development.'”

Further, Ecology put the City of Yelm on-notice in this case by saying in its Brief to the Court:
“Notwithstanding, Ecology is interested in highlighting the problem of granting a preliminary plat that defers securing potable water supply to the building permit stage, where there is insufficient water to supply the proposed development. Ecology notes that it has the authority to enforce against the City of Yelm if it exceeds its water limitations. However, Ecology is attempting to be proactive in this matter so as to present possible water right violations by the City of Yelm…”

The Judge quoted the following as guidelines:
“RCW 58.17.110 provides, inter alia, that
(2) A proposed subdivision…shall not be approved unless the city,
town, or county legislative body makes written findings that: (a)
Appropriate provisions are made for…potable water supplies…; and
(b) the public use and interest will be served by the platting of such subdivision and dedication.

The Yelm Municipal Code (YMC) provides:
A proposed subdivision and any dedication shall not be approved unless
the decision-maker makes written findings that:
A. Appropriate provisions are made for the public health, safety, and general welfare and for…potable water supplies.”

Judge Wickham further wrote:
“So it is clear that the City must make findings of “appropriate provisions” for potable water supplies in this case by the time of final plat approval.

If the determination were to be made today on this record, this Court would conclude the City would have to require a showing of approved and available water right sufficient to serve all currently approved and to-be approved subdivisions. The “reasonable expectation” based on historical City’s suggested finding potable water would be considered insufficient to satisfy this condition.”

This case has nothing to do with stopping or limiting development, rather to direct the City to follow the laws of:
the Revised Code of Washington (RCW)
the Yelm Municipal Code (YMC)
the Washington Water Code
and that a determination of ‘appropriate provision’ [of water] are a condition of preliminary plat approval and must be provided at final plat approval.

The NVN said:
“To date, the city has spent $145,000 on legal fees responding to Knights lawsuit.

That amount does not include staff hours.

‘In light of the vast time and money dedicated to this case,’ said City Administrator Shelly Badger in a press release, ‘it is ironic that the decision equates to Yelm doing business as usual.’

‘The permitting process isnt changed.'”

All of the legal fees were expended by the City to support its contention that it does not have to prove water availability until the building permit phase, rather than prior to that at the final plat phase. The City Council upheld that stand when this case came before them last year. Since Yelm was not following state standards for protecting water resources and the public, a petitioner’s course of redress is to the Superior Court, which is what Ms. Knight did.

Mayor Harding can say this is “business as usual”, however to quote Knight’s attorney Keith Moxon,
“The Judge agreed with JZ Knight that a “reasonable expectation” (Yelm’s current wording to approve developments’ water rights acquisition in the future) is not sufficient to meet the legal requirement of making “appropriate provisions” for a potable water supply.

JZ Knight is grateful that this Judge carefully reviewed the record of the city’s actions and determined that the city’s approach to approving development without provision for potable water is not lawful.

Hopefully, the City of Yelm will now make arrangements to stay within its water rights and approve new development only when it has an adequate water supply.”

The Judge will sign a formal order to put this decision in effect the week of Nov. 4th.
Read Judge Wickham’s October 7th Letter Opinion in the case of JZ Knight vs. City of Yelm et al for yourself!

UPDATE, Oct. 20th at 2:25pm
This writer asked this morning and just received the City of Yelm Water Press Release dated October 10, 2008 from where I quote:
“‘To set aside water rights at a time other than building permit does not make sense. In essence, the City would have to set aside water for lots that might not ever be developed,’ said Yelm Mayor Ron Harding, who is happy with the decision.

‘If the judge had agreed with Knight,’ Harding explained, ‘all growth in Yelm, including the construction of new homes and businesses would stop.’

‘With the economic challenges we are facing, both nationally and locally, continued development is essential to maintain a healthy community,’ Harding concluded.”

Mr. Mayor, did you not read Judge Wickham’s Letter Opinion about the 5 subdivisions as quoted above???
Bottom line: Water has to be proven to be available for these 5 subdivisions at final plat. If not, then construction in these developments cannot move forward.

Therefore, the City’s Press Release and quotes from Mayor Harding & City Administrator Badger are not-so-subtle, calculated and deliberate attempts at subterfuge of the truth and public trust. Quoting only the city’s own Press Release and not Judge Wickham’s Opinion Letter is indicative of the newspaper’s complicity, too, which is no surprise…