BY NANCY WALBECK
American staff writer
A ruling by the Anacortes board of adjustment that threw out two appeals earlier this month related to a grading permit for the T Bailey site on South March Point Road apparently was reached incorrectly, because the board needs three “yes” votes to take action.
But the attorneys representing the city, T Bailey, the Port of Anacortes and several environmental groups now can’t agree on what happens next. The city’s representative, Steve DiJulio, said allowing an absent board member access to the public record and proceedings, then letting that member vote, should meet the requirement.
Craig Magnusson, who represents the manufacturing firm, T Bailey, said following DiJulio suggestion would violate the Open Meetings Act.
“Action must be taken at that initial board meeting,” Magnusson said, which means “re-opening” the board of adjustment appeal process. It also would open the process to additional testimony, Magnusson said, if those involved decided to do so.
At the Oct. 10 hearing, the city’s board of adjustment voted 2-1 to deny two appeals from several environmental groups including Skagit Land Trust and Evergreen Islands.
The groups had protested the city issuing a land-clearing permit for a new T Bailey facility on South March Point Road. A heron rookery is located nearby and the groups say not enough protection has been provided. T Bailey has a long-term lease and option to purchase the property from the Port, which did the initial environmental assessment. The environmental groups charge that assessment was not adequate.
Because an appeal process was not available under Port and city regulations, it was determined the city’s board of adjustment would adjudicate the issue.
At the board hearing, a three-member quorum took testimony. One board member, Ken Wilson was absent and a second, George Mehler, was recused.
After the hearing, however, Skagit Land Trust notices a provision in the city’s regulations that states three votes in the affirmative are needed for any action to be taken. The trust’s attorney, David Mann, alerted DiJulio, who said he arranged for Wilson to review the file and render a vote.
“He can review the (meeting) take and, if he agrees with the majority, the order (to deny the appeals) will be entered,” DiJulio said. “Yes, there is no decision (now).”
But Magnusson disagrees, saying if Wilson were to follow DiJulio’s instruction and vote on the issue it would be in violation.
His Oct. 24 letter to DiJulio and Anacortes City Attorney Ian Munce states that any decision rendered by the “absentee member’s vote” would be null and void, according to state law.
And, although the board of adjustment could reschedule the hearing, Magnusson also states in his letter that both appeals were filed too late, in any case. The board of adjustment could simply issue its written decision based on the majority decision as it was about to do last week, and that should suffice, he said.
By rejecting the appeals because they did not meet the deadline, the board is saying, in essence, they are outside our jurisdiction, Magnusson states.
Meanwhile the city still has not completed its review related to issuing a building permit for T Bailey’s new structure on South March Point Road. T Bailey, the Port and Skagit Land Trust continue negotiations to reach consensus on how best to protect and monitor the heronry, Magnusson and DiJulio said.
Mayor Dean Maxwell said he expects a satisfactory agreement among the parties will be reached, before a city building permit is issued.