King County Superior Court Judge John Ruhl has changed his order to dismiss Save Madison Valley’s land-use petition, this time dismissing the case on the grounds the court lacks the authority to provide review at this time.

SMV expects this will keep the window open to challenge Deputy Hearing Examiner Barbara Ehrlichman’s findings and decision that partially cleared Velmeir Properties to proceed with permitting for a six-story apartment building with a PCC Market on the City People’s Garden Store site.

The neighborhood group filed a land-use petition to challenge multiple findings in the examiner’s decision, but then filed a motion in late May to have the petition dismissed in superior court, citing a lack of jurisdiction.

Ehrlichman sided with SMV in finding the Seattle Department of Construction and Inspections’ determination of non-significance erroneous in its threshold determination related to drainage; an updated drainage study was needed to assess stormwater detention.

She also denied a motion for reconsideration by SDCI regarding mitigating shade on the Mad P-Patch adjacent to the property.

Since these two matters were remanded back to SDCI and Velmeir, Save Madison Valley argued the superior court can only provide review of final land-use decisions, which the group believes is still pending.

Velmeir argued that Ehrlichman specifically wrote in her findings that the report was the hearing examiner’s final decision, and SMV should not be allowed to essentially withdraw its appeal and resubmit a land-use petition at a later date. The Madison project, 2925 E. Madison St., has been in the works for more than three years.

Ruhl initially decided to allow SMV to voluntarily withdraw its land-use petition, but SMV filed a motion for reconsideration, concerned it would hurt the group’s chance of being able to file a future appeal. It wanted the judge to make a decision regarding jurisdiction.

“The court agrees with the Petitioner and the City that the Hearing Examiner’s remand of the matter to SDCI makes the Decision an interlocutory decision, and not a final decision, for purposes of a LUPA appeal, despite the fact that the Decision states that it is a final decision,” Ruhl wrote in his July 9 order.

Velmeir had argued for a stay in the case pending the remanded matters, so the court would retain jurisdiction, thus minimizing delays in the case being resolved.

“It’s kind of a procedural victory, but it’s a victory nonetheless,” SMV member Tony Hacker tells MPT. “I think the case we made is this should be handled all at once and not piecemeal.”

Hacker said Save Madison Valley is now waiting for SDCI to finish addressing drainage and shadows on the P-Patch. If those matters go back to the hearing examiner for review, an appeal could be filed again. If not, a land-use petition could be refiled in superior court. MPT is awaiting a status update from SDCI.

“I don’t know what the timeline is,” Hacker said. “I don’t know that anyone does. At this point, we’re waiting for the city to go through their process on the remand. Once we know that, we’ll know the next steps.”

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