Bexley Ridge Superior Court Ruling

Regatta Estates learned on Friday February 10th that Superior Court Judge, Millie Judge, denied Regatta Estates HOA’s LUPA lawsuit/appeal and affirmed PDS’s decision to delete 200 trees that were originally required to have been planted on the 60-foot-high, 10-foot-wide terraced retaining per the Hearing Examiner’s decision in 2017. The change to the retaining wall, as we contended, was a material change the retaining wall design to a type that we believe cannot be vegetated as originally specified (or vegetated at all to nothing more than a few 10s of percent of plant coverage). We believe likely this change was implemented to substantially reduce developer building costs with what we predict will be long-term issues that Regatta Estates will be responsible for.

The decision is 27-pages long, but at its core, the judge simply dismissed REHOA’s declaration as being “summary” and “conclusive,” and from there rules on pretty much all counts that our lawsuit did not submit evidence substantiating our claims of increased negative stormwater runoff issues. In other words, the county wanted to see the appellant Regatta Estates to prove there will be an issue in the future versus the developer Lennar to prove there won’t be an issue. This effectively switches the burden of proof from the developer to Regatta Estates that there will not be problems moving forward from the redesign of the retaining wall. Effectively, this forces Regatta Estates to shoulder some of the design work for Lennar and PDS even though PDS never considered stormwater runoff when they approved this “minor revision” in the first place.

Obviously, this view of the Regatta Estates claim is perplexing; We don’t know how one can rationally think that a rock-faced wall will not have more stormwater runoff than a forested, terraced wall. We believe the County achieved their ruling by imposing an unreasonably high standard—that because Regatta Estates did not provide actual calculations of runoff rates etc., the case should just be dismissed. Notably, the ruling doesn’t mention the runoff rates that Regatta Estates cited and indeed revealed during the oral argument in December when the judge first brought this specific issue to light.

It is in our opinion, and our opinion only, that this ruling shows that under current Snohomish County Code, PDS can set aside a Hearing Examiner ruling or other EIS requirement as a minor revision, so long as the revision does not add more than 10-lots to the development, with no notification to parties on record or the public.  And it is resultantly up the public and appellants to do design work to show there will be no material or environmental impact versus require the developers to show changes to be negative in nature to other parties. Again, we believe this a burden-of-proof switch.

What constitutes a minor revision?  We believe it is somewhat undefined and arbitrary, but virtually anything that changes, even without justification, can constitute a minor revision under SCC 30.70.210, so long as it does not add 10-lots or so to the development.

Please take a moment to reflect and if you feel action is needed to prevent further events similar to this, contact the County Council at [email protected] and urge them to change the SCC 30.70.210 code to require PDS to enforce the Hearing Examiner’s conditions of approval and/or at the very least notify the public and parties of record when the Hearing Examiner’s conditions are changed after permit issuance.  Otherwise the SEPA process can look like a charade since we believe Snohomish County can simply set aside a Hearing Examiner’s condition on developer’s whim to cut their costs at the expense of the environment, and residents of the neighborhood, cities, and County.

Our deepest gratitude goes to the Sno-king watershed council and the numerous Picnic Point neighbors that contributed to the attorney costs to see us through to the end, as well as Bill Lider’s endless time as our Environmental Engineer Extraordinaire on call to guide us through with his extensive knowledge on county code and his deep passion for environmental conservatism.

Please email Regatta Estates if you would like to see the official Court ruling document or have any questions that we might be able to answer, such as a referral to the most-excellent environmental engineering consultant: William (Bill) Lider, PE, CESCL, or the Environmental and Land Use Attorney Regatta Estates used for our very well-argued case, Bryan Telegin:

Finally, consider donating to the SnoKing Watershed Council for their non-profit environmentalism in protecting nature in our area: