Professional Documents
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FILED
2019 MAY 23 03:59 PM
Hearing Date: May 31, 2019 at 3:00 p.m.
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KING COUNTY
3 SUPERIOR COURT CLERK
E-FILED
4 CASE #: 19-2-10001-0 SEA
12 v.
SAVE MADISON VALLEY’S
13 CITY OF SEATTLE; VELMEIR MOTION TO DISMISS
MADISON CO. LLC; and BROE
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HARLEY,
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Respondents.
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17 I. RELIEF REQUESTED
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Petitioner Save Madison Valley moves for dismissal of its own Land Use Petition for lack of
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subject matter jurisdiction pursuant to CR 12(b)(1). The Land Use Petition challenges an interlocutory
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administrative decision that is not ripe for judicial review and should be dismissed without prejudice.
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22 While it is admittedly unusual for a Petitioner to request dismissal of its own Land Use
23 Petition, the unpredictable and unforgiving nature of deadlines for filing petitions under the Land Use
24 Petition Act (LUPA), ch. 36.70C RCW compelled us to act with precaution by filing the petition and
25 then seeking a formal court order for dismissal without prejudice.
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7 decision approving the East Madison Street Proposal (“Director’s Decision”) on July 23, 2018. Id. at
8 5. In that Decision, the Director issued a Determination of Non-Significance for the Proposal pursuant
9 to the Washington State Environmental Policy Act (SEPA), ch. 43.21 RCW. Id. This meant that the
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City of Seattle would not prepare an environmental impact statement, which is required by SEPA for
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projects that will have probable significant adverse impacts. Id.
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Save Madison Valley appealed the Director’s Decision to the City of Seattle Hearing Examiner
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on August 6, 2018. Id. After holding a hearing on the appeal, the City of Seattle Hearing Examiner
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15 issued the land use decision that is on appeal in this Land Use Petition. Id., Ex A (Findings and
16 Decisions of the Hearing Examiner in File No. MUP-18-020 and S-18-01 (Feb. 26, 2019).
17 In her decision, the Hearing Examiner reversed and remanded the Director’s Decision to issue
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a Determination of Non-Significance. Hearing Examiner Findings and Conclusions at 44. The Hearing
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Examiner upheld Save Madison Valley’s appeal on two key issues that had been presented on appeal.
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First, the Examiner concluded that the Determination of Non-Significance with respect to drainage
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22 impacts caused by the proposal was clearly erroneous and there was clear and convincing evidence
7 respect to shadow impacts caused by the proposal had been issued in error.
8 Since the SEPA Responsible Official did not apply this SMC
25.05.675.Q.2 to the project, the decision must be reversed and
9 remanded to allow study and consideration of this issue by the
Department. The Examiner encourages the Department to work with
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representatives of the Mad Pea Patch to assure that the analysis focuses
11 on the appropriate times of the year when light is critical to the garden’s
operation. . . .
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A SEPA threshold determination decision with respect to shadow
13 impacts should be reversed, and the matter remanded to the
Department for further actions in compliance with this decision.
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16 The Hearing Examiner denied all of the other challenges brought on appeal by Save Madison
17 Valley.
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The project approvals are now on hold until the additional environmental review ordered by
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the Examiner is completed.
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LUPA provides jurisdiction for superior court review of final land use decisions made by
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22 counties and cities. RCW 36.70C.030. Save Madison Valley filed a Land Use Petition pursuant to
23 LUPA petition on April 10, 2019 in which it challenged the Hearing Examiner’s decision to deny
24 issues presented in the appeal other than the drainage and shadow issues. While Save Madison Valley
25 does not believe that there was a final land use decision that could be challenged under LUPA, Save
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8 This Motion relies on the pleadings that have been filed by the parties in this matter.
9 V. ARGUMENT
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A. Standard of Review.
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Whenever a pleading fails to establish that a court has subject matter jurisdiction over a matter,
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a court must dismiss the action. CR 12(b)(1). “Without subject matter jurisdiction, a court or
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administrative tribunal may do nothing other than enter an order of dismissal.” Inland Foundry Co.,
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15 Inc. v. Spokane County Air Pollution Control Auth., 98 Wn. App. 121, 123–24, 989 P.2d 102 (1999).
16 Dismissal is appropriate if it appears beyond doubt that the plaintiff can prove no set of facts, consistent
17 with the complaint, which would entitle the plaintiff to relief. Asche v. Bloomquist, 132 Wn. App.
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784, 790, 133 P.3d 475 (2006).
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B. The Hearing Examiner’s Decision Was Not a Final Land Use Decision Subject to
20 LUPA.
21 The Petitioners’ LUPA petition must be dismissed because there is no final land use decision
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for the Petitioners to challenge. Quite simply, the Petitioners have prematurely filed the LUPA petition
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before the City has made its final land use decision. Before the developers can file a LUPA petition,
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the administrative process must fully play out.
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7 decision “is one which leaves nothing open to further dispute and which sets at rest cause of action
8 between parties.” Samuel’s Furniture, Inc. v. State, Dept. of Ecology, 147 Wn.2d 440, 452, 54 P.3d
9 1194 (2002). The finality requirement of LUPA eliminates “premature judicial intrusion into land use
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decisions.” Grandmaster Sheng-Yen Lu v. King County, 110 Wn. App. 92, 101, 38 P.3d 1040 (2002).
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Without a land use decision, a superior court does not have jurisdiction to hear a LUPA petition. See
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Durland v. San Juan County, 182 Wn.2d 55, 64, 340 P.3d 191 (2014).
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A final land use decision has not occurred when an administrative review results in a remand
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15 back to an administrative agency to correct errors. For instance, in Stientjes Family Trust v. Thurston
16 County, 152 Wn. App. 616, 217 P.3d 379 (2009), the Thurston County Board of County
17 Commissioners remanded an administrative challenge to a construction site plan to the Thurston
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County hearing examiner for further proceedings. Rather than allowing the hearing examiner to
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conduct further proceedings consistent with the remand, the petitioners filed a LUPA petition in
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Thurston County Superior Court challenging the Board of County Commissioners’ remand. Id. at
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22 620. The court noted that “[a] local jurisdiction’s decision concerning a building permit application
23 is final for purposes of LUPA if a party receives the relief it had requested and no additional issues
24 remain.” Id. at 624–5. Because additional issues remained for the hearing examiner to decide on
25 remand, the Board of County Commissioners’ decision was not a final land use decision. Id. at 625.
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7 motion for reconsideration was filed and, therefore, “the hearing examiner’s initial decision does not
8 fit the definition of ‘final decision’ provided in Samuel’s Furniture.” Id. at 217.
9 Here, the amended findings and decision of the Seattle Hearing Examiner did not constitute a
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final land use decision “which leaves nothing open to further dispute and which sets at rest cause of
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action between parties.” Namely, the Hearing Examiner remanded the Determination of Non-
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Significance back to SDCI for the purpose of evaluating the drainage and shadow impacts of the
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proposal. Much like in Stientjes, there are still issues to be resolved on remand and the Hearing
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15 Examiner’s decision is not a final land use decision that can be appealed under LUPA.
16 It is irrelevant that the Hearing Examiner affirmed a portion of the Determination of Non-
17 Significance because all of the issues at dispute between the parties must be resolved before a land use
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decision becomes final. A decision on a land use application “is final for purposes of LUPA if a party
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receives the relief it had requested and no additional issues remain.” Stientjes, 152 Wn. App. at 624–
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5 (emphasis supplied).
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22 Because there has been no determination that would constitute a final land use decision, this
23 Court lacks subject matter jurisdiction over the petition because LUPA only provides for judicial
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7 Respectfully submitted,
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By:
11 Claudia M. Newman, WSBA No. 24928
Attorneys for Save Madison Valley
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
8 IN AND FOR KING COUNTY
15 Respondents.
16 The Court having considered Save Madison Valley’s Motion to Dismiss and the responses and
17 reply to the motion, for good cause shown, and in the interests of justice, hereby GRANTS the motion.
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Accordingly, IT IS HEREBY ORDERED that this case is dismissed without prejudice.
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DONE IN OPEN COURT this _____ day of May, 2019.
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By:
5 Claudia M. Newman, WSBA No. 24928
Attorneys for Save Madison Valley
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Approved as to form:
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STOEL RIVES LLP
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11 By: ___________________________________
Patrick J. Mullaney, WSBA # 21982
12 Attorneys for Velmeir Madison Co. LLC
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By: ____________________________________
16 Elizabeth Anderson, WSBA #34036
Attorney for City of Seattle
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HELSELL FETTERMAN LLP
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20 By: ___________________________________
Brandon S. Gribben, WSBA # 47638
21 Samuel M. Jacobs, WSBA # 8031
22 Attorneys for Broe Harley
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13 Respondents.
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I. INTRODUCTION
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Respondent, Velmeir Madison Company, LLC (“Velmeir”) opposes Petitioner, Save
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Madison Valley’s (“SMV’s”), Motion to Dismiss and requests a prompt adjudication of the
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issues that are before the Court. SMV’s Motion should be denied on multiple grounds,
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including: 1) it is clear that Seattle’s Hearing Examiner intentionally made a final land use
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decision that was subject to appeal under Washington’s Land Use Petition Act (Ch. 36.70C
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RCW (“LUPA”)); 2) LUPA requires that a petition be filed within 21 days of a land use
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decision, and SMV should not be allowed to withdraw and recast its appeal at some future date;
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3) SMV did not raise the issue of completeness of the Examiner’s decision in its appeal and is
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therefore barred from raising it now; 4) the policy behind LUPA is to expedite review of
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administrative land use decisions to provide finality; and 5) SMV’s motion to dismiss is untimely
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and filed in violation of LCR 7(b)(4)(a), as it was not filed six court days before the hearing date.
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22 The decision of the Hearing Examiner in this case is the final decision of the
City of Seattle. In accordance with RCW 36.70C.040, a request for judicial
23 review of this decision must be commenced within twenty-one (21) days of the
date the of the decision . . . .
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HE Decision, p. 44, Mullaney Decl. Ex. 1 (emphasis added).
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2 Mills, contacted the Examiner’s clerk, Ms. Alayna Johnson, to inquire about whether the
3 Examiner was retaining jurisdiction pending remand. The clerk again confirmed that the
2 Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 180-81, 4 P.3d 123 (2000).
3 In Nykriem, the Court explained that LUPA recognizes a “strong public policy supporting
4 administrative finality in land use decisions” and that to recognize an exception to LUPA’s
5 definite time limits “would completely defeat the purpose and policy of the law. . . .” Chelan
6 County v. Nykriem, 146 Wn.2d, 904, 931, 52 P.3d 1 (2002) (without finality in land use
7 decisions, no owner of land would ever be safe in proceeding with development of his property).
8 Id. at 932-33.
9 Here, the Examiner issued a final decision that ruled against SMV on numerous claims
10 including design review, aesthetics, height, bulk and scale, traffic, landscaping, tree retention,
11 wildlife habitat, steep slope development, building height calculation, noise and construction
12 impacts. See generally, HE Decision, Mullaney Decl. Ex. 1, SMV Petition, ¶ 4.14, pp. 6-7,
13 Mullaney Decl. Ex. 3. Velmeir has already endured a 3-year review and administrative appeal
14 process, and it is prejudiced by further delay. Consistent with the policies underpinning LUPA,
15 Velmeir is entitled to have SMV’s appeal addressed expeditiously. SMV is not prejudiced by
16 having it bring forth the evidence it contends supports the issues raised in its Petition.
17 C. The Remanded Issues Do Not Affect the Court’s Ability to Review SMV’s
LUPA Appeal.
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Recently, the City requested additional information from Velmeir on the discrete
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remanded issues. May 22, 2019 Correction Notice, Mullaney Decl. Ex. 4. The process that the
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City ultimately follows on remand to address those discrete issues will depend on its evaluation
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of the information submitted, and SMV will have whatever appeal rights are associated with that
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process and that are consistent with applicable law. See e.g. RCW 43.21C.075 (appeals); RCW
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43.21C.240 (project review under the Growth Management Act); RCW 36.70B.030 (project
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review-required elements-limitations); and RCW 36.70B.060 (integrated and consolidated permit
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5 and file all motion documents no later than six court days before the date the party wishes the
6 motion to be considered.” Emphasis added. Per CR 6(a), in computing time periods, the day of
7 the act is not included, and when the period of prescribed time is less than 7 days, intermediate
8 Saturdays, Sundays and legal holidays are excluded from the computation. RCW 1.16.050(1)(e)
10 SMV filed its motion on May 23, 2019 and requested a hearing on May 31, 2019. May
11 23, 2019 Notice of E-Service and SMV Motion Note, Mullaney Decl. Exs. 5 and 6, respectively.
12 Because SMV failed to account for Memorial Day, its motion was filed only five court days
13 before the requested hearing. As such, SMV’s Motion is untimely pursuant to LCR 7(b)(4)(a)
15 III. CONCLUSION
16 Leaving land use decisions open “places property owners in a precarious position and
18 predictable and timely manner.” Nykriem, 146 Wn.2d, 904, 933, 52 P.3d 1 (2002). Consistent
19 with LUPA’s underlying policies, Velmeir requests that the Court deny SMV’s Motion to
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I certify that this response in opposition contains 1398 words and is in compliance with
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the Local Civil Rules.
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8 correct copies of the document on the following persons in the manner listed below:
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7 s/ Sharman D. Loomis
Sharman D. Loomis, Practice Assistant
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7
SUPERIOR COURT OF WASHINGTON
8 FOR KING COUNTY
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This matter has come before the court for consideration of Plaintiff Save Madison
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Valley’s Motion to Dismiss (Dkt. 18).
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The Court has considered the pleadings and other documents filed by the parties, and in
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particular the following items:
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Pleading Dkt. No.
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Save Madison Valley’s Motion to Dismiss 18
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Velmeir Madison Co., LLC’s Response in Opposition to Motion to 22
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Dismiss
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Declaration of Patrick Mullaney in Opposition to Motion to Dismiss 23
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Petitioner’s Reply in Support of Motion to Dismiss 27
ORDER OF DISMISSAL
WITHOUT PREJUDICE - 1
1 Although the Petitioner urges the court to dismiss the Land Use Petition (Dkt. 1) on
2 grounds that the court lacks subject matter jurisdiction pursuant to CR 12(b)(1), the court need
4 At this stage of the proceeding, CR 41(a)(1)(B) permits the Petitioner to obtain an order
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ORDER OF DISMISSAL
WITHOUT PREJUDICE - 2
19-2-10001-0
SAVE MADISON VALLEY vs SEATTLE CITY OF ET AL
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