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HomeMy WebLinkAboutMinutes 12/06/2010• • CITY PUBLIC CLOSED PROCEEDING OCEEDING Port Angeles, Washington December 6, 2010 CALL TO ORDER: At 6:00 p.m., Mayor Di Guilio called to order the Port Angeles City Council, acting in its quasi-judicial capacity, to hear an appeal of a Shoreline Substantial Development Permit. ROLL CALL: Members Present: Mayor Di Guilio, Deputy Mayor Perry, Councilrnembers Downie, Kidd, Mania, and Nelson. Members Absent: Councilmember Collins. Staff Present: Manager Myers, Attorney Bloor, Clerk Hurd, N. West, S. Roberds, S. Johns, and H. Greenwood. Others Present: Respondent's Attorney Backer, Appellants' Attorney Thaler, and Council's Attorney Walter. Mayor Di Guilio stated that Councilmember Collins was out of town and had previously asked to be excused from tonight's meeting. It was moved by Mania and seconded by Downie to: Excuse Councilmember Collin's absence from tonight's proceeding. Motion carried 6 -0. PLEDGE OF Mayor Di Guilio led the Pledge of Allegiance to the Flag. ALLEGIANCE: PUBLIC CLOSED Mayor Di Guilio opened a closed record proceeding to hear an appeal of the Shoreline RECORD Substantial Development Permit granted to Nippon Paper Industries USA Co., Ltd, for its PROCEEDING: mill expansion and biomass cogeneration project. He noted there were seven appellants: No Biomass Burn, Port Townsend Air Watchers, Center for Environmental Law and Policy, World Temperate Rainforest Network, Olympic Environmental Council, Olympic Forest Coalition, and the Sierra Club. He stated that Attorney Toby Thaler represented the seven appellants. Mayor Di GuiIio also introduced Nippon Paper Industries USA Co., Ltd, as the permit applicant responding to the appeal, and their attorney, Tom Backer. He stated that Attorney William Bloor represented City staff and Attorney Michael Walter represented the City Council. Mayor Di Guilio stated that tonight's proceeding was a quasi - judicial matter to be decided on the existing record that was before and considered by the Planning Commission, that no new evidence was allowed, and that the Council would hear argument only from representatives of the parties to this proceeding. He continued by stating that the Appearance of Fairness Doctrine applies, and that all Councilrnembers would need to make appearance of fairness disclosures. Mayor Di Guilio proceeded by asking each member of Council qualifying questions for Appearance of Fairness. He also asked if either the appellants or the respondent had any grounds to disqualify any member of the Council from participating in the proceedings. 1 6771 6772 CITY COUNCIL MEETING PUBLIC CLOSED RECORD PROCEEDING December 6, 2010 PUBLIC CLOSED Finally, Mayor Di Guilio asked if there was any member of the audience who wished to RECORD disqualify a member of the Council from participating in the proceedings, and there was PROCEEDING: no response. No Councilmember was disqualified. (Coned) PUBLIC CLOSED RECORD PROCEEDING: (Coned) Mayor Di Guilio provided an overview of the documents provided and asked if there were any other documents or briefs that the parties believed should be added as part of the record of the closed record proceeding. No party had any documents to add to the record. Mayor Di Guilio then described the rules for the proceeding including the order in which the appellants, respondents, and City staff would provide their testimony. Community and Economic Development Director West and Attorney Bloor represented City staff and spoke for fifteen minutes regarding the project, permits at issue, and the procedure and decisions through the Planning Commission's decision being challenged by the appellants. Director West and Attorney Bloor then responded to questions from Council. Appellants' Attorney Thaler spoke for twenty minutes and then responded to questions from Council. Respondent's Attorney Backer spoke for twenty minutes and then responded to questions from Council. Break: Mayor Di Guilio recessed the meeting for a break at 8 :08 p.m. The meeting reconvened at 8:20 p.m. Appellants' Attorney Thaler provided rebuttal for ten minutes and then responded to questions from Council. Respondent's Attorney Backer provided rebuttal for ten minutes. Director West responded to questions from Council on behalf of City staff, Mayor Di Guilio closed the hearing portion of the proceeding. He asked if Council preferred to adjourn to Executive Session, and Council responded that they preferred to discuss the issue in open session. Mayor Di Guilio stated that Council would now address the five standards applicable to the closed record proceeding, He read aloud the first standard and Council discussion followed. It was moved by Kidd and seconded by Perry that: The Planning Commission did not engage in unlawful procedure or fail to follow a prescribed process, unless the error was harmless. Motion carried 6 -0. Mayor Di Guilio read aloud the second standard. Council discussion followed, It was moved by Perry and seconded by Downie that: The decision is not an erroneous interpretation of law, after allowing for such deference as is due the construction of the law by this body and/or other decision- makers. 2 • • PUBLIC CLOSED Motion carried 6 -0. RECORD PROCEEDING: Mayor Di Guilio read aloud the third standard. Council discussion followed. (Coned) It was moved by Nelson and seconded by Downie that: The decision of the Planning Commission is supported by evidence that is substantial when viewed in light of the whole (established) record before the Planning Commission. Motion carried 5-1, with Mania voting in opposition. Mayor Di Guilio read aloud the fourth standard. Council discussion followed. Attorney Walter clarified the meaning of the fourth standard for Council. It was moved by Perry and seconded by Kidd that: The decision of the Planning Commission is not a clearly erroneous application of the law to the facts (established by the Planning Commission). Motion carried 6 -0. Mayor Di Guilio read aloud the fifth standard. Council discussion followed. It was moved by Perry and seconded by Downie that: The decision of the Planning Commission is in the authority or jurisdiction of the Planning Commission. Motion carried 6 -0. Mayor Di Guilio stated that the City Council would issue a written decision with findings of fact and conclusions of law at its December 21, 2010 City Council meeting, and that the written decision would be sent by certified mail to the attorneys for the parties of record and posted on the City's website. Attorney Walter stated that Council needed to direct him or City staff to prepare the findings of fact and conclusions of law. It was moved by Perry and seconded by Kidd to: Have staff prepare the findings of fact and conclusions of law in conjunction with Attorney Walter. Motion carried 6 -0. ADJOURNMENT: Mayor Di Guilio adjourned the meeting at 9 :06 p.m. Di Guilio, Mayo n czne4,6usi:„Af s Hurd, City Clerk 3 CITY COUNCIL MEETING PUBLIC CLOSED RECORD PROCEEDING December 6, 2010 6773