Sequim councilors pass ordinance to keep MAT appeal with hearing examiner

City councilors could hear appeals depending on decision timeline

Sequim city councilors passed an ordinance in a special Saturday night meeting to correct the city’s code for appeal processes.

How the change impacts the Jamestown S’Klallam Tribe’s proposed medication-assisted treatment (MAT) clinic application depends on when it goes through regulatory channels.

Councilors voted 5-1 — with Mayor William Armacost opposed — to revise portions of the Sequim Municipal Code to direct all appeals of Type A-1 and A-2 administrative permit decisions to a hearing examiner. Appeals to those decisions would then go to Superior Court.

City attorney Kristina Nelson-Gross said the city sought to clarify discrepancies in the code (20.01.030(A) and 20.01.240) that have State Environmental Policy Act (SEPA) determination appeals going to the city council and the rest to a hearing examiner.

“There was internal conflict with the code that the hearing examiner is feeling concerned about,” Nelson-Gross said.

She said city staff disagree with city appointed hearing examiner Phil Olbrechts’ opinion, but rather than argue, councilors approved an ordinance to fix the code and make all A-1 and A-2 permit appeals go to a hearing examiner.

The ordinance will go into effect five days from publication in the Peninsula Daily News, tentatively set for Sunday, Oct. 4.

However, city councilors considered an emergency ordinance prior to the ordinance that didn’t pass. The emergency ordinance would have gone into effect immediately prior to Olbrechts issuing his temporary (interlocutory) order and a final decision, which he hasn’t submitted as of Sunday morning. That ordinance required a five-vote threshold with councilors voting 4-1 with Armacost opposed and councilor Sarah Kincaid abstaining.

Nelson-Gross said if the council “doesn’t want to hear the appeals, they should (pass the ordinance) under the emergency provision.”

She said it constituted an emergency ordinance because once Olbrechts submits his decision it triggers the appeals process.

She said Oct. 5 or 6 may be too late, and city council may have to hear appeals instead of the hearing examiner.

Some appellants have testified that under the Jamestown S’Klallam Tribe’s application, the classification process for appeals should be heard by the city council anyway. City staff has testified that the facility is similar to other clinics and medical buildings and is not classified differently and under staff review.

Barry Berezowsky, Sequim director of community development, approved the tribe’s application in May, which led to the appeals process and hiring of Olbrechts.

Cancelled hearing

City staff asked for Saturday’s meeting after Olbrechts sent an email Sept. 20 saying he does “not have jurisdiction over consolidated permit hearings that include a (SEPA) appeal” for the Jamestown S’Klallam Tribe’s proposed clinic on South Ninth Avenue to treat opioid abuse disorder.

He cancelled a three-day hearing for Sept. 28-30 to hear six appeals about the application, including its classification (city staff review versus city council review), the environmental Mitigated Determination of Nonsignificance (MDNS) SEPA review, and the application as a whole.

Olbrechts said in the email a “reviewing court would very likely overturn my final decision and remand the appeal back to the city council to do the entire process over again.”

Berezowsky said Saturday night that the city was required to bundle all of its appeals as one for Olbrechts to hear.

“It’s all or nothing,” he said.

Councilor Mike Pence asked how these portions of the code stayed like this “if so backwards in one place and in another.”

Berezowsky said portions of the code weren’t exercised for years.

“The code continues to reference going to the hearing examiner except for one sentence probably because it wasn’t test run,” he said.

“Unfortunately, planners don’t always test run (codes and they have) no idea of a hiccup or contradiction.”

Feedback

City staff offered three options for councilors Saturday — the emergency ordinance, a regular ordinance or to do nothing.

Deputy Mayor Tom Ferrell said Olbrechts’ email was a “curveball” for him, but he still felt a hearing examiner review is the best way to continue.

“I think there is a lot of bias and anger in our community and this is the most effective way,” he said.

Ferrell also wanted to be fair to the tribe and have the process completed in “a reasonable amount of time.”

He said, “I don’t want to use this as a curveball to bring it back to council.”

Armacost said he voted earlier this year for the council to send appeals to Olbrechts at the late councilor Ted Miller’s recommendation, saying the hearing examiner was exceptional.

By voting against the emergency ordinance, Armacost said he “thinks we (councilors) are being anxious” and that he’d like to learn from Olbrechts the legal reasons why he can’t hear the appeal.

“I’d like to hear what he has to say,” Armacost said.

If the process does come back to the city council, Armacost said, they have the experience and business backgrounds to handle it.

In a phone interview, Kincaid said she abstained in the emergency ordinance vote because she didn’t like the idea of calling it an emergency.

“It needs a change, but I did not like the idea of doing it on an emergency basis; it didn’t sound quite right,” she said. “I’m sorry, but someone should have known this was a problem a while back.”

In the meeting, councilor Dennis Smith said councilors agonized over going with Olbrechts and ultimately felt councilors lack the expertise and he was the “most expeditious and professional to get this decision done.”

“The emergency (ordinance) prevents the potential of months and months where we continue to tear this place apart with this issue,” Ferrell said.

“We need to get it resolved.”

Potential

Nelson-Gross said Olbrechts will likely remand the appeals decision back to the city council if his decision comes in before the ordinance changes goes through.

If MAT appeals were to revert to the city council, city staff estimates additional costs of $42,000-$1000,000 would be needed for an outside attorney to consult the council on land use prior to the hearing.

Olbrechts scheduled three full days to hear appeals, and she anticipates it would take the council longer, possibly seven days, because of a lack of experience with land use decisions.

Nelson-Gross said city council would need sufficient time to prepare and consider the legality of the appeals, too.

In their staff notes for Saturday, city staff wrote, “financial damages that result from any missteps could result in additional, significant costs that may not be covered by our risk pool.”

Nelson-Gross said that in appearance of fairness, if appeals do go to the councilors they must reveal every contact they’ve had regarding the application, i.e. emails, phone calls, conversations, etc.

She said there isn’t any distrust between staff and councilors regarding this but “due to the sheer volume” of contacts there’s a chance for missing a contact.

“That’s cause for significant concern for staff for city liability and personal liability for council,” she said.

Criticism

City staff apologized to councilors at various points of the virtual meeting saying some verbiage about being “ill-equipped” wasn’t intended to criticize the city council.

In the cover sheet, it reads, “Staff’s opinion is that the City Council is not in a position to hold an open record appeal hearing on such short notice, especially when the issues raised are highly technical and legal. The Council is ill equipped to facilitate an open record appeal hearing of this magnitude due to their lack of experience, training, and education; none of them have any legal experience to speak of.”

“Staff was merely trying to point out (that) Washington has a complex and deep area of legal complexities and associated case law,” Nelson-Gross said. “The legal nuisances may be lost on city council.”

Berezowsky said the verbiage in the sheet likely came from him and that he “simply suggests there is a lack of expertise on the council.

“I believe that’s a fact. I could have said it more eloquently,” he said.

Pence said “we understand the magnitude (of the decision).”

“That all could have been left out,” he said.

“Staff did not mean to be condescending,” Nelson-Gross said. “We are deeply apologetic for any misconception and any hard feelings. Please, I hope you take it for what it’s intended.”

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