Thurston judge dismisses appeal tied to the West Bay Yards project in Olympia
A Thurston County Superior Court judge has dismissed an appeal tied to the mixed-use project known as West Bay Yards, a proposal that would build 478 apartments on the Budd Inlet shore in Olympia.
Judge Jim Dixon made his ruling in less than an hour after listening to attorneys argue for and against a motion to dismiss. Dixon ruled that the court lacked subject matter jurisdiction in the case and that the appellant, an environmental group called Olympia Coalition for Ecosystems Preservation, lacked standing.
But Olympia Coalition board president Daniel Einstein said the fight isn’t over yet.
“We believe the decision was flawed,” he said Friday. “We intend to file a motion for reconsideration and, barring that, are seriously considering appealing this case to the appellate court where greater time and consideration can be given to state environmental law.”
Olympia Coalition for Ecosystems Preservation owns land near the proposed development — land it has acquired to preserve — and says it would be harmed by the project.
Troy Nichols, spokesman for West Bay Development Group LLC, welcomed Friday’s ruling, but said they are prepared for the legal case to continue.
“It’s their right,” said Nichols about Olympia Coalition’s decision to appeal, but he said he believes the legal arguments only get harder.
“It’s hard to see a scenario where the law or process has been violated,” Nichols said.
Last year, West Bay Yards submitted a development agreement to the city of Olympia, identifying the location — 1210 West Bay Drive — and the scale of the project.
A development agreement is separate from the city’s land-use process, which continues for West Bay Yards even as the appeal was pursued. A development agreement locks in expectations for the project over time, but it does not replace the need for permits or environmental review.
Court records show why the developer sought the agreement.
“West Bay (Development Group’s) estimated total cost to develop the project is in excess of $200 million,” the court records read. “West Bay’s purpose in applying for the (development) agreement with the city was to create reasonable predictability and certainty regarding the vesting of future land-use entitlements for the project.”
The city later issued a “non-project” determination of non-significance under the state Environmental Policy Act, meaning closer environmental scrutiny in the form of an environmental impact statement would not be required for the agreement. Olympia Coalition for Ecosystems Preservation disagreed and appealed that ruling to the Olympia Hearings Examiner. The hearings examiner upheld the city’s decision.
Coalition board president Einstein has said he takes issue with the term “non-project” because so much is already known about West Bay Yards: the size, the number of apartments and the commercial development associated with the project. Given that, he feels the agreement should have been subject to an environmental impact statement.
Olympia City Council voted to approve the development agreement between the city and developer, and the Olympia Coalition for Ecosystems Preservation appealed that decision as well.
The SEPA determination for the agreement, the hearings examiner’s decision and the development agreement were all appealed to Thurston County Superior Court. That was followed by the motion to dismiss the appeal, which Judge Dixon heard Friday.
Friday’s hearing
Heather Burgess, the attorney representing West Bay Development Group, argued that the Olympia Coalition for Ecosystems Preservation lacks standing “because all of the alleged environmental harms are associated with the development of the project, which the development agreement does not authorize.”
Alex Sidles, the attorney representing the Olympia Coalition, countered that to say a development agreement is nothing more than words on paper and doesn’t generate any impacts to the environment is simply wrong.
“Preliminary documents like plats, environmental impact statements and development agreements are already beginning to establish what the ultimate environmental impacts will be,” he said. “For that reason, the courts have always treated that if an appellant will be harmed by the actual project, then these initial steps are appealable decisions.”
Burgess countered that “nowhere is a development agreement found in the sequencing or universe of permits.”
“It is entirely discretionary,” she said.
Judge Dixon agreed, saying the court lacked jurisdiction in the matter because the development agreement is not an approval required by law prior to development.
As to Olympia Coalition for Ecosystems Preservation’s standing in the case, he didn’t feel the group was “injured” by the development agreement, calling any potential harm “speculative.”
This story was originally published August 21, 2021 at 5:45 AM.
