Conveyor-belt Appeal Looks Like a Loser

What next for the ill-fated proposal to build a pier and conveyor belt in Des Moines, to move third-runway fill from barges up to Sea-Tac Airport? It seems almost certain that the courts will not require the City to give this idea any further consideration.

Hank Hopkins, promoter of the conveyor plan, received little comfort from a three-judge panel of the Court of Appeals on Thursday, January 15. The judges posed nothing but skeptical questions & comments to Hopkins' attorney, Craig Miller, of the downtown law firm Davis, Wright, Tremaine, when he argued that the courts should force the City to process two applications to build his conveyor system on City park land without prior City permission.

When the permit applications came before the City Council in Spring 2002, City staff pointed out that they were defective, incomplete, because the principal land-owner involved (the City itself) had not agreed to letting its land be used. When staff asked if the Council wanted to direct that the City sign on, there was dead silence. The City did not want to sign on. The applications were returned, Hopkins appealed in the name of two corporations that he controls, Wescot Corp., and Environmental Materials Transport, LLC.

First, the City Hearing Examiner ruled against him. Then he appealed in Superior Court. That case was heard in March 2003 by Superior Court Judge Dean S. Lum. Judge Lum agreed with Des Moines City Attorney Linda A. Marousek that the City's decision was simply not subject to this type of judicial review. A very specific provision in the Land Use Petition Act says that City decisions on applications to use parklands, streets, & the like are not appealable. Case dismissed! It was this ruling by Judge Lum that was the subject of the oral argument in the Court of Appeals.

Early in his presentation, Attorney Miller was interrupted by Chief Judge Mary Kay Becker, who pointed out that the land-use appeal statute “appears” to rule out judicial review of City action on applications for use of parklands. Miller argued that the statutory exemption was intended to apply only to temporary or minor uses, such as picnics, or street fairs. Judge Becker seemed unconvinced. (By the way, the conveyor project has always been presented as only temporary.)

Judges Ronald E. Cox and H. Joseph Coleman also expressed skepticism about Hopkins' position, in light of the plain statutory language. Judge Coleman flatly stated from the bench that the statute says there is no appeal.

In another exchange, Mr Miller conceded to Judge Coleman that, “A time will come when we will negotiate with the City. The choice of sequence is Wescot's to make, not the City's. … We will have to get an easement through the Park.” Judge Becker intervened to comment that in fact & under the law Hopkins and Wescot have made the wrong choice of sequence. They are “up against the law”.

The judges suggested to Mr Miller that if his client wanted a permit, he should apply for one that doesn't go through parks, but Mr Miller responded that this was not possible, as a matter of engineering.

A careful reading of the briefs filed with the Court suggests that the real complaint from Mr Miller is that the City should have given him better advice as to the legal requirements for the permits. Shouldn't the lawyers for someone seeking land-use permits for major projects know the law? As Ms Marousek pointed out, it is a fundamental rule of land-use law that a person cannot get a government body to make a change in land use for someone else's property without that person's prior permission. In the ordinary land-use appeal, a local government has imposed (or loosened) restrictions on a property owner's use of the property owner's own land, & the governmental action is being challenged by the owner. That was not the situation in this case, for the owner (the City) had not sought any action. Wescot could not legally compel either a private third party or the City to negotiate an agreement for development of land that Wescot did not own.

The dozen or so Des Moines residents in attendance, including newly-elected Mayor Bob Sheckler, were jubilant at the close of the hearing.

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