UDATED OPINION, 6/13, Opinion: Councilmembers Kimberly Allen and Hank Margeson recently proposed taking the legal land use appeal component out of council's hands and into King County Superior Court. As Mr. Margeson stated, it's the Council's job to write policy, not to interpret it. Citizens would still maintain their right to appeal the Hearing Examiner's decision. In addition, Council could hold a secondary, legislative appeal to address code issues brought up by citizens.
Most area cities choose to take the lawyering out of their Council's job description and give it to the county superior court i.e. Kirkland, Bellevue, Issaquah, Sammamish, Woodinville, Edmonds, Seattle, Everett, and Mercer Island. We should, too. Only Redmond and Bothell land use appeals remain "judged" by city councils.
After trying to participate in the review of three deforestation projects by CAMWEST, the Shauhanessy deforestation project, and Tent City review process, I agree it's time for a change. In fact, Council President Nancy McCormick described her frustration, if not agony, while presiding over the TC-4 and 172nd Ave extension appeals. The 42-lot Shauhanessy Plat/PRD drew a similar response from Nancy when an appeal to Council was remanded by Council back to the Hearing Examiner for a second Public Hearing. Shauhanassy is the longest land use review in the history of Redmond and the project still isn't built.
After thanking Ms. Allen for articulating the Shauhanessy case so well, Council President Nancy McCormick movingly stated:
"The public process may not have been violated but it was twisted. I can't keep from thinking about that couple who appeared at the Tent City public meeting and signed up to the Party of Record only to be denied on appeal to be heard.
The public needs accurate information and timeliness of an appeal, otherwise we make a mockery out of Public Hearings and caring about public involvement."
It is clear recent land use cases have demonstrated that our present public process needs fixing. The public has not been getting accurate information because their elected representatives are not allowed to represent or inform them. Conversely, staff gives full support and guidance to developers who already know the system and what questions to ask.
Councilmember Pat Vache' (and Cole, Carson, Myers) openly support the present quasi-judicial appeal process. They prefer not to give up their lawyering power in judging land-use policy. Rather, Mr. Vache' (and Mr. Myers) look at the present process as a "learning experience to get the feel for the impact of how code impacts the stakeholders". What Mr. Vache' doesn't learn about are his constituents' feelings and their understanding the project during the Review. Thus, mistakes get made (that could have been fixed in legislative appeal to council). Mr. Vache' says the Q-J process is more efficient. Shauhanssey PRD lasted years. Tent City-4 was a breath away from the State Supreme Appellate Court. Perrigo Heights, The 172nd extension, Pearce, and Tyler Creek land use actions all took valuable time from Council policy-making duties while stressing the neighborhoods and landowners on code issues. No wonder Council work has become a full-time job.
Interestingly, Mr. Vache’ voted for the CAMWEST Perrigo Heights Plat Steep Slope Exception concluding "where else are we going to put the homes"? Mr. Vache’ lives right off of NE 116th Street behind what later became Mosaic Meadows plat and sown 116th from CAMWEST'S huge Pearce PRD.
Over time, part of the issue is Council gets too close to the stakeholders and their judgment becomes affected, despite the appearance of distance and objectivity.
Part One: "Moving Redmond forward on Land Use Appeals"
Most area cities choose to take the lawyering out of their Council's job description and give it to the county superior court i.e. Kirkland, Bellevue, Issaquah, Sammamish, Woodinville, Edmonds, Seattle, Everett, and Mercer Island. We should, too. Only Redmond and Bothell land use appeals remain "judged" by city councils.
After trying to participate in the review of three deforestation projects by CAMWEST, the Shauhanessy deforestation project, and Tent City review process, I agree it's time for a change. In fact, Council President Nancy McCormick described her frustration, if not agony, while presiding over the TC-4 and 172nd Ave extension appeals. The 42-lot Shauhanessy Plat/PRD drew a similar response from Nancy when an appeal to Council was remanded by Council back to the Hearing Examiner for a second Public Hearing. Shauhanassy is the longest land use review in the history of Redmond and the project still isn't built.
After thanking Ms. Allen for articulating the Shauhanessy case so well, Council President Nancy McCormick movingly stated:
"The public process may not have been violated but it was twisted. I can't keep from thinking about that couple who appeared at the Tent City public meeting and signed up to the Party of Record only to be denied on appeal to be heard.
The public needs accurate information and timeliness of an appeal, otherwise we make a mockery out of Public Hearings and caring about public involvement."
It is clear recent land use cases have demonstrated that our present public process needs fixing. The public has not been getting accurate information because their elected representatives are not allowed to represent or inform them. Conversely, staff gives full support and guidance to developers who already know the system and what questions to ask.
Councilmember Pat Vache' (and Cole, Carson, Myers) openly support the present quasi-judicial appeal process. They prefer not to give up their lawyering power in judging land-use policy. Rather, Mr. Vache' (and Mr. Myers) look at the present process as a "learning experience to get the feel for the impact of how code impacts the stakeholders". What Mr. Vache' doesn't learn about are his constituents' feelings and their understanding the project during the Review. Thus, mistakes get made (that could have been fixed in legislative appeal to council). Mr. Vache' says the Q-J process is more efficient. Shauhanssey PRD lasted years. Tent City-4 was a breath away from the State Supreme Appellate Court. Perrigo Heights, The 172nd extension, Pearce, and Tyler Creek land use actions all took valuable time from Council policy-making duties while stressing the neighborhoods and landowners on code issues. No wonder Council work has become a full-time job.
Interestingly, Mr. Vache’ voted for the CAMWEST Perrigo Heights Plat Steep Slope Exception concluding "where else are we going to put the homes"? Mr. Vache’ lives right off of NE 116th Street behind what later became Mosaic Meadows plat and sown 116th from CAMWEST'S huge Pearce PRD.
Over time, part of the issue is Council gets too close to the stakeholders and their judgment becomes affected, despite the appearance of distance and objectivity.
Part One: "Moving Redmond forward on Land Use Appeals"
Bob,
ReplyDeleteFrom your posting, it seems to me that you're implying that councilmembers are just not legally intelligent/educated enough (and I realize that all of us but one do not have law degrees) to handle these appeals. I would argue that we are explained precisely what the law is by the City Attorney and precisely what we are to consider as evidence (the record established by the hearing examiner) and come to a reasoned conclusion as to the merit of the appeal.
If this sounds familiar, it should. This is quite nearly the same thing we charge criminal juries of ordinary citizens with every day in this country. We ask them to pass judgment on individuals for things of which they have been accused. The jury is presented with the "facts" as submitted by two opposing parties (the prosecutor and the defense) and asked to make a decision whether the prosecutor has proved the charge placed on the accused. In some cases they are even asked to decide between life and death of the defendant.
If a council member is not prepared to handle the prep-work and pressure that these decisions can sometimes bring then they should not run to be on the council. It is one of the responsibilities of being on the council and I know that we all take it seriously. I understand the arguments on the other side of this, but I don't think they outweigh the benefits we get from the system as currently set out.
To the issue of not being able to talk to citizens during the period when such an appeal is underway, we do the very same thing when it comes to juries. They cannot discuss the case or read/watch the media so that they are not biased toward one outcome or the other. This is the same in a land-use appeal to be judged by the City Council and I do not see why this is considered so difficult and cumbersome. To abrogate this responsibility in favor of citizens having to file suits in Superior Court at the tune of $100K and a year of their life makes no sense. I would rather not be able to talk to anyone about the issue, weigh the evidence fairly and make a decision than for a stakeholder (citizen or landowner) in a timely manner than to have this burden put on them unfairly.
In this situation and to mangle a phrase: justice too costly is justice denied.
David
The last sentence in the second to last paragraph should have read:
ReplyDeleteI would rather not be able to talk to anyone about the issue, weigh the evidence fairly and make a decision affecting a stakeholder (citizen or landowner) in a timely manner than to have this burden put on them unfairly.
With all due respect to my colleague Mr. Carson, I must disagree with his comment. When the Council hears quasi-judicial appeals, it does not perform the function of a jury, but rather that of a court of appeals, which examines the record to find if the court below committed clear error in applying the applicable law to the facts in the record before it. This is an exercise that judges are trained to do and perform very well--not so the average City Council.
ReplyDeleteThe City Council is a legislative body that creates policy. Our constituents are best served by having us accessible to take their input and make the legislative corrections that are needed, not by crossing into a place where we are sitting as judges on the application of the very policies we may have been responsible for shaping.
Correct, which is why I said, "quite nearly the same thing" instead of "the same as…". ;)
ReplyDeleteHaving served on two juries in my lifetime, the process is not dissimilar and has many parallels which can be drawn as I did in my original response.
Yes, it's an appeal, but we are sitting in judgment of that proceeding as does a jury. As I mentioned, I totally and completely understand the position that Councilmembers Allen and Margeson hold; I just disagree with it wholeheartedly.
Councilmember Allen made the point that virtually every other jurisdiction (except Bothell) has abrogated their responsibility (IMHO) in favor of appeals going directly to Superior Court. As my mother says, "you wouldn't jump off a bridge if your friends were all doing it?" I don't want Redmond to jump off this bridge.
My argument to keep appeals coming to the Council is that I'd rather Redmond residents have true and inexpensive appellate recourse rather than having a stifling effect on these heartfelt appeals. Because the next step after a Hearing Examiner would be Superior Court, this changes the dynamics of who can and cannot appeal that decision due to the astronomical cost involved. Our current system gives Redmond residents a real hearing of their grievances rather than a sympathetic ear that can do absolutely nothing.
David
The fact remains that a land use appeal is a very different function from that which a jury performs, with a completely different standard of review that provides no basis to alter the Hearing Examiner's decision based on sympathy. If we provide a free appeal that cannot withstand legal challenge, then what are we really giving those aggrieved citizens? As I tell my kids, just because we can, doesn't always mean we should.
ReplyDeleteThis conversation reminds me of a section from my favorite movie, The Princess Bride. :)
ReplyDeleteMAN IN BLACK
But if there can be no arrangement, then we are at an impasse.
VIZZINI
I'm afraid so -- I can't compete with you physically. And you're no match for my brains.
MAN IN BLACK
You're that smart?
VIZZINI
Let me put it this way: have you ever heard of Plato, Aristotle, Socrates?
MAN IN BLACK
Yes.
VIZZINI
Morons.
Inconceivable!
ReplyDeleteI recall Holly Plackett found some 25 exceptions for Perrigo Heights. All in favor of Camwest's development plan. Thank god for Holly!
ReplyDeleteThe problem with this process is that the City Council are not attorneys, with the exception of Kimberly Allen. Land Use Policies are made by the planning commission, whom also lack the benefit of a lawyer when making their recommendations for code adoption. Interesting that other members of the City Council think they know the law on land use. I suggest they reread the Growth Management Act again. They do not understand it's intentions nor it's proper application, nor do they want to. The problem with a Hearing Examiner is that is a lawyer who may also not have any specialized knowledge in the state's laws on land use versus Redmond Development Code, which is what they attempt to interpret and ignore the overlaying state RCW's.
ReplyDeleteActually, the land use laws are enacted by City Council, based on a recommendation from the planning commission. The planning commission works with city staff and city attorney to form its recommendations to council.
ReplyDeleteMr. Carson should re read Ms. Allen's response again. The legal process in this country is based on separation between policy makers and legal recourse. There is a very real difference between someone who has been through law school and someone who hasn't. They have been trained to see it from the way it works and why it works that way. Ms. Allen is simply telling you from the legal perspective how it should be set up. Perhaps the city could set up a different legal process that would not cost the citizen as much as Superior Court, but still maintain the separation it now lacks. Policy makers make decisions based on what they believed they meant, judges interpret what was written, lawyers must carefully craft there complaints for there clients. This is the difference between all of these players and Ms. Allen is highly aware of it. The objective, Mr. Carson, is not to go to court but to negotiate a settlement with the parties involved.
ReplyDeleteThe Sammamish Rowing Club went through the gauntlet to get their proposed BOATHOUSE approved by Council. (read my post). The quais-judical process is just that - a compromise between land use review by our representatives and their secondary role as "judges". The result, stakeholders get a compromised decision. Case in point: Both Cole and Allen were supposed to be as objective as a judge when considering Ms. Dickson's challenge to the BOATHOUSE. Mr. Cole told me a the BMX clinic at Horace Mann that he has known Ms. Dickson for years, but hadn't walked down to the SRA BOATHOUSE 20 years. EXPLAIN HOW R. COLE COULD BE OBJECTIVE ON THIS CASE IN A REDMOND APPEAL?! Ms. Allen has a daughter who rows at a competing rowing club. Even though MS. ALLEN'S a lawyer, how could she be truely objective IN A REDMOND APPEAL?!
ReplyDeleteThat's exactly why the citizens and developers of Redmond need the objective appeal of the King County Supreme Court. "Hack judges" that know everyone in the community only sets the City up for lawsuits from the stakeholders. Cole and Carson claim the citizens (and developers) don't have the money to appeal. Believe me, for a valid arguement the community would contribute to support an appelate.
I don't fret or worry for Mr. Carson in not having enough personal money to run for Council, and not lose income from all the work he does for the community. What Mr. Carson does with his money is his business.
Carson, Cole, Myers and Vache should mind their own business about the cost of a court appeal. We don't parent them about how they can afford the time committment and resources required of their office.
The Type II conditional use permit FINALLY passed after YEARS of review.