In an unusual turn, one of the plaintiffs, the Stillaguamish Flood Control District, has filed a brief bringing the Oso mudslide into the case.
The slide took place March 22, well after the lawsuit was filed, on Dec. 2, 2013. But the flood district's attorney said the extraordinary nature of the disaster requires the entire case be reconsidered.
“All of the assumptions and models and approaches that were used to determine where to build in the floodplain will need to be recalibrated,” Henry Lippek said.
The case goes before the court Monday.
Island Crossing lies along the bank of the Stillaguamish River, and was the site of significant flooding in late 2010 that closed a portion of I-5.
Car dealer Tom Lane owns a 14.3-acre parcel in the area and has plans to move his Dwayne Lane's Arlington Chevrolet dealership to the lot from its location along Highway 9.
A hearing examiner approved Lane's permit on condition that the lot not contribute any additional water rise to the surrounding lots or downstream during a major flood, but later loosened the flooding requirement to allow a 2-inch rise in water level during a 100-year flood, or a 7-inch rise during a 25- or 50-year flood.
Both the flood district and the state Department of Transportation sued Lane and the city of Arlington. While the transportation department wants to go back to the more restrictive flooding requirement, the district is seeking to throw out Lane's development permit entirely.
The Flood Control District went even further in its new brief, calling for a moratoriuim on urban development in the floodplain until “emergency and longer-term stabilization of the Oso slide debris field, unstable slopes and river erosion on the North Fork of the Stillaguamish River are completed.”
“That debris field is eventually, either suddenly or over time, going to wash down the river,” Lippek said.
“It's going to cause problems at I-5. The freeway and culverts are undersized for today's flows,” he said.
The city's response to the initial brief from the flood district points out that Snohomish County Superior Court, in its role of reviewing an earlier decision by a hearing examiner, can't consider new evidence. The city's brief also takes aim at the district's brief, pointing to its lack of legal citations (as opposed to press reports about the slide) in making its case.
“This is one of those very clear cases where a new fact requires reopening the record,” Lippek said.
Arlington city attorney Steven Peiffle disagrees, saying that the Superior Court would be entering new legal territory for land-use cases if it were to admit new evidence.
Peiffle added that, in any event, the legal standard that guided the hearing examiner's decision was the analysis of how Lane's project would change the base flood levels in the area.
“The Oso landslide would not have had any impact on those calculations,” Peiffle said.
Chris Winters: 425-374-4165; firstname.lastname@example.org.
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