TIGER MOUNTAIN LLC; and P & L ASSOCIATES, for themselves and others similarly situated,

Plaintiffs,

v.

KING COUNTY, a political subdivision for the State of Washington,

Class Action

PLAINTIFFS’ SECOND SUPPLEMENTAL BRIEF TO COUNTY’S MOTION TO REOPEN PROCEEDINGS RE: REASONABLENESS & MONITORING CATEGORIES & PLAINTIFFS’ MOTION TO AMEND

In their Response to the County’s Motion to Reopen this case related to Reasonableness and Monitoring Categories, Plaintiffs submit the following supplemental evidence, and authority, in opposition to the County’s Motion. Plaintiffs incorporate and restate their earlier submissions to the Court in Opposition to the County’s Motion for Reconsideration. The submitted argument is also made in support of Plaintiffs’ pending Motion for leave to amend its First Amended Complaint to add relief under 42 USC §1983, an award of attorney fees under 42 USC §1988, and the State Consumer Protection Act, RCW Chapter 19.86.

Plaintiffs request that the Court provide the following declaratory and injunctive relief:

A. Declare that the fee system changes under Ordinance 14683 were made in response to Plaintiffs’ class action litigation.

B. Declare that the County’s attempt to correct system-wide flaws of the County’s permit fee system still violates principles enunciated in Covell v. Seattle, and fails to meet the statutory and local code criteria of RCW 82.02.020 and KCC 27.04.040.

C. Declare that both the old system created under Ordinance 13332 and new estimated fee system under Ordinance 14683, violate substantive and procedural due process by failing inter alia to:

(1) provide adequate and reviewable standards for purposes of 42 USC §1983 upon which to calculate application fees, track charges, or calculate with reasonable certainty the nature of work and services being performed and amount of fees to be charged before committing to filing of an application or after filing a development application;

(2) provide an adequate and affordable administrative review and appeal procedures, to challenge fees believed to be unreasonable under RCW 82.02.020, or which applicants believe to be excessive, unlawful or unconstitutional, or which fail to meet industry standards for application processing;

(3) provide minimum procedural due process standards of fair warning and notice;

(4) continues the practice of using vague generalized billing categories and open-ended hourly fees so that applicants have no reasonable certainty that the amount of fees estimated or to be charged; and

(5) fail to provide minimum due process procedural safeguards and standards to prevent arbitrary actions by ministerial/administrative DDES staff sufficient to protect development rights with articulated standards and adjudicative appeal hearings.

D. Enjoin the County from using generalized billing categories and agency Task Codes as a substitute for detailed description of services, performance criteria and articulated standards for accurate fee determinations.

F. Enjoin the County’s estimated fee system from using misleading and deceptive practices, including using the previous two years (2002 and 2003), as its standards for estimating costs to calculate estimated fees.

G. Order the County to disclose to applicants and provide written and published components, elements, criteria, and spreadsheets for immediate access to the County’s data base of like scope and size to calculate "binding fee estimates."

H. Order disgorgement of hourly fees collected from Applicants for "Quality Control" and administrative/clerical charges for copying, file maintenance, bond maintenance, bond receipts, and related charges.

I. Order that DDES limit "monitoring development activity" to a limited range of hours as an adjunct of inspection of projects being constructed.

J. Order disgorgement of hourly fees collected from Applicants for all other "monitoring" charges, including monitoring of bond files, monitoring of sites, and related monitoring charge categories.

K. Order disgorgement of collected late penalties, finance charges, and/or interest collected or unearned services from applicants.

L. Grant Plaintiffs’ Motion to Amend it Complaint to conform to the evidence requested previously by Plaintiffs to allow relief under 42 USC §1983 and Rulings of the Court.

M. Retain continuing jurisdiction over the County’s billing system and Order the appointment of a Special Receiver or Master to implement the Court’s Order.

In direct response to Plaintiffs’ lawsuit in February of 2003, Defendant King County undertook the following actions:

Feb. 2003 This lawsuit filed and served on King County alleging violation of RCW 82.02.020 and abusive gouging practices by DDES due principally to open-ended fees, the absence of fee criteria, and inability to determine reasonableness.

March 2003 Although the Master Builders Association ("MBA") had been trying to get DDES to incorporate major changes in the permitting process for a number of years, it was not until after filing of Plaintiffs’ lawsuit that the County Executive hurriedly assembled an advisory "Task Force" comprised of DDES Staff, selected building industry representatives, and a lobbyist, to address a myriad of complaints. The County Council did not convene an Advisory Committee as it had done in the past to examine these complaints.

The advisory Task Force excluded any representatives from the environmental community, good government, affordable housing, neighborhood groups, labor, or small property owners groups. See Att. B May 28, 2003 Staff Report by Rick Bautista referencing that any future advisory body on fees was to be comprised of a "...wide variety of affected stakeholders."

April 2003 DDES’s Finance Manager Jim Schaber prepared a Regulatory Matrix claiming that changes were necessary to "correct flaws" with the County’s current fee system. Att. A.

May 2003 The Executive’s auditor reviewed the county’s permit fee system with the Task Force and proposed wide-sweeping fee system changes to the County’s system after just two (2) months of meetings, which had taken ten (10) years of study and input from Council Committees to create under Ordinance 13332 in 1999.

The auditor reported that he did not examine individual complaints to determine if "...charges against individual permits were reasonable or excessive." Att. B.

The auditor reported that the "new" Project Management System based its estimated fees upon DDES budgets for 2002 and 2003 earlier discredited by this Court. Att. B.

DDES contends that it is locked into the "cost = fee" program by the County Council, so that it cannot change its hourly fee charges. The MBA representatives participating in the advisory Task Force accepted this DDES position, as noted in the Declaration of Bob Johns that it did not address the fee components and hourly charge amounts. See Johns Decl., Page 4, ¶12.

Instead, the Task Force agreed to try out "Project Management" as an experiment to cut down on repeated reviews and to provide applicants for larger projects with up front fee estimates. Johns Decl., Page 6, ¶15, line 1.

June 16, 2003 A Notice of Hearing was published for County Council adoption of a new fee ordinance on June 16, 2003 omitting any reference to any new "binding fee estimate" system. One (1) public hearing is held before the County Council. See Att. C. Lay members of the public criticized DDES fees and used the term "gouging" to described DDES billing abuses.

June 16, 2003 Executive Sims issued a Press Release announcing that:

"King County is the only building and land use permit agency in the region solely dependent upon permit fees...The department receives no General Fund support for permit processing and review."

"The new fee estimates given at application in-take will give builders, developers, remodelers and citizens a predictability element they did not have before the restructuring package was adopted. All of this help will help the consumer by reducing permitting costs." Att. D; (Emphasis added).

June 18, 2003 DDES Director Warden was deposed and continuously referred to the County’s permit fees as amounting to a "but for" "cost of doing business" system. Ms. Warden did not disclose any proposed"estimated fee" legislation revising DDES’s billing system as a defense to any of Plaintiffs’ claims.

June 23, 2003 The County Council adopted Ordinance 14683, but this ordinance identified only "Project Management." The published notice for public hearings contained no reference to "estimated fees" or "binding fee estimates."

Ordinance 14683 was adopted as an "experiment." It contained no delegated standards, criteria, or guidelines for "necessary components for accurate fee estimates." It authorized no "exceptions" or "disclaimers" to estimated fees. It provided no delegated rule making authority authorizing DDES Staff to adopt DDES "Financial Policies." See Att. E.

July 16, 2003 King County Council member David Irons when told by Members of the Four Creeks Unincorporated Area Council that they received no notice of wide sweeping fee system changes, stated that: the changes were the product of a lobbyist and development association only; the new fee ordinance process lacked openness; "County Council members and staff were not allowed to attend these meetings; and that the only way Council members knew what was being discussed, was to personally contact commission members." Att. V, Page 5 Minutes of Neighborhood Group.

August 2, 2004 King County Answers to Plaintiffs’ Interrogatory Responses and at Interrogatory No. 45 do not acknowledge the existence of the County’s "Project Management" and "Estimated Fee" system. The County fails to amend its Answer, and does not reference this estimated fee system as a defense to any of Plaintiffs claims in based upon Ordinance 14683.