City defers to extend hearing examiner’s powers to 2020

Councilors differ on how much power they’d give up over land use issues

Sequim city councilors agreed on some basic changes to an ordinance regarding the use of hearing examiners, but won’t decide on how much the council will use the contracted service until 2020.

Councilors on Sept. 9 approved basic verbiage changes in an ordinance to the Sequim Municipal Code but declined to commit to a specific level for how much they want a hearing examiner to oversee when it comes to land issues.

“Based on the current hearing examiner authority, it’s limited to certain types of appeals and certain other quasi-judicial variances,” city attorney Kristina Nelson-Gross said.

“The purpose of the ordinance is to provide some process and clear levels of authority for what a hearing examiner can and cannot do.”

Some city councilors wanted to consider seeking a hearing examiner contract sooner than later.

Councilor Bob Lake said a contract would “allow us to engage the public more fully.”

“Right now, it’s very awkward to tell people that we can’t talk about (a land use issue) because we might have to decide on it,” Lake said. “We don’t always know if we’re going to decide on it or not.”

Nelson-Gross said the city council could expand a hearing examiner’s authority from code enforcement issues and a few land use issues to fully taking on the city’s land use issues, but it would require a new ordinance.

Councilors could also defer over issues such as a dispute regarding a denied business license, she said.

If the council did seek a hearing examiner, Nelson-Gross said city staff would send out a request for proposal and recommend a contract to city council.

Not yet

Councilor Ted Miller said he’s opposed to making a decision because new city councilors are coming in after the November election.

“We’re going to change a 100-year precedent immediately with two council members leaving council,” he said.

“It’d be embarrassing to have it reversed in January. I see no urgent need to have it done now.”

Lake said “it makes sense” to expand the hearing examiner’s role and that new city councilors might not have new insight on the matter.

“We’re growing from a little town with handshake agreements to bigger projects,” Lake said. “We need to follow the law carefully. It just makes sense to me that our growth be more professional.”

Deputy Mayor Candace Pratt said she thinks “courts are defining the way in which we are supposed to be moving.”

She referred to an earlier presentation by Jeffrey Myers of the law firm Law, Lyman, Daniel, Kamerrer & Bogdanovich, that referred to city councilors as “legislators,” and “not courts.”

“The big reason why we can’t hear from you all (she said addressing the crowd) is if we have a land use down the pike is because everybody should hear what you have to say,” Pratt said.

“We’re not supposed to interpret what you have to say. You tell the council. When we have a quasi-judicial hearing, we always take public comment. So that’s when you get to talk to us. It’s not like you never to get talk to us.”

Miller said his problem with Pratt’s statement is that city councilors’ and public input would be moot.

“It’d be much easier for us to speak to the public if we had a hearing examiner (but) it’d also be basically useless to speak to the public anyway because we wouldn’t have any input,” Miller said.

Contention

After Miller spoke, audience members, many of them opponents of the Jamestown S’Klallam Tribe’s proposed medication-assisted treatment facility in city limits, applauded for him.

City staff previously said approval for the treatment center could be made by city staff rather than city council.

However, opponents of the clinic favor it going for approval under city council or the planning commission.

Pratt said she took offense to the applause.

“You are intimidating me to speak my peace,” she said. “This is my turn to speak. If you don’t like it, don’t applaud.”

Under a quasi-judicial issue, Lake said the city council “can only interpret the law for what it says.”

“If we’re doing that correctly we should have the same answer as the hearing examiner,” he said.

“I think a hearing examiner brings in more expertise about land law. If there’s mitigation, I think it will give us the best outcome.”

Miller disagreed saying the hearing examiner “might know the law a lot better, but he’ll know the people a lot worse.”

“The real issue is simply is that, it’s not black and white,” Miller added. “There’s always substantial gray area in any decision. A hearing examiner is going to be much more biased in the gray area.

“All hearing examiners are theoretically unbiased. They are lawyers. They’re really focused on the law and not the people and that can make a real issue.”

Call for a lawyer

Miller said city council has a city attorney to turn to for advice.

“If we’re foolish enough to ignore her advice, we could have a problem,” he said. “I for one will not do that.”

City councilor William Armacost said the city is fortunate to have an attorney.

“She keeps us from making mistakes from being possible,” he said.

“At some point, I think a hearing examiner would be valuable. In light of our current need today, people’s value needs to be taken at greater level than what they’re feeling is being heard.”

In Myers’ presentation, he stated reasons why to use a hearing examiner, such as his/her background in land use, being unbiased and more.

He also said they reduced appeals and judicial challenges and potential lawsuits. He listed multiple cities that countered a hearing examiner’s recommendation and how much it cost them in Washington

As for possible risks with hiring a hearing examiner, Myers said they can cost cities a lot of money and interpret a city’s code as written and not as intended.

However, he said community sentiment is not a basis for deciding land use issues.

Myers was scheduled to speak in late March/early April, but he wasn’t available until the Sept. 9 meeting, city staff said.

For more information about the Sequim City Council, call 360-683-4139.

Reach Matthew Nash at mnash@sequimgazette.com.

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