Here Comes the Debate on the Hearing Examiner

June 26, 2012 22:38 by Ryan

The Anacortes City Council is (finally) poised to debate the Planning Department's proposal to adopt a Hearing Examiner, which the City has been slowly working through since 2010. Although we've had several meetings about the proposal, we have yet to actually debate the central issue: do we replace the citizen Planning Commission with an unelected hearing examiner appointed by the mayor?

In summary, the proposal would accomplish the following:

  • Transfer the duty to review conditional use permit and other discretionary permit applications from the Planning Commission to a hearing examiner. Note that Title 19 "Option B" would leave this responsibility with the Planning Commission, and not create a hearing examiner.
  • Revise the procedural provisions of our land use code, and consolidate those provisions in the new Title 19.
  • Make other necessary changes to the other titles to accomplish the above.

The City Council will hold a public hearing on the proposal on Monday, July 2, at 7pm. This is your chance to voice your opinion in person to the entire City Council.

Comments (1) -

Terry Christiansen

July 17, 2012 09:43

Regarding the Hearing Examiner question, I have given the matter a great deal of thought and ultimately concluded that there is no reason whatsoever to believe that a Hearing matter how well educated or experienced he or she might be....would come to a more correct or more legal or more appropriate conclusion on a land-use issue than a commission of appointed citizens would or that an elected city council would.  This conclusion assumes that a Hearing Examiner, Planning Commission, or  Council would have spent the necessary time to properly study and familiarize themselves with the Anacortes Municipal Code (AMC) and the applicable state law and regulations on which the AMC is heavily based.
While it is largely true that most land-use questions in the past have not been as controversial as the Memory Care Center, that is a totally insufficient reason to believe our codes don't need to be improved.  A Hearing Examiner would be confronted with the same public testimony and the same technical contradictions and shortcomings of our current AMC and would potentially have even more difficulty arriving at a decision precisely because or his/her probable legal training, in that he/she would be more apt to see the contraditions they currently contain.  This is another reason to give priority to a detailed review and update of Title 17 in particular, and the remainder of our Development Regulations in general before even considering whether to bring a Hearing Examiner into our processes.  
Several people have testified that hearings before a Hearing Examiner are more technical and almost necessitate hiring legal representation.  Having no personal experience with a Hearing Examiner, I have no basis for an opinion on that specific claim.  However I have recently acquired a good deal of first-hand information on the subject of appealing land-use decisions.  In particular, I learned that hiring legal counsel with a practice in land-use for an appeal in Superior Court via the Land Use Petition Act (LUPA) process will cost between $12,000 and $24,000 according to several estimates I received in response to inquiries....and that would be for a fairly simple case.  Further, while LUPA filing fees are inexpensive and a losing party's liability for court costs....if awarded to the prevailing party....are limited to $250, a city on the losing side would almost certainly elevate the issue to the Court of Appeals at which I don't believe there to be any shields or limits on awards.  Moreover, the city has its legal representation provided courtesy of its insurer....which itself is paid for partly by the party which brought the LUPA action against the city in the first place....we taxpayers.  
The more important (and often controversial) situations such as Conditional Use Permits, often highlight the need for a published process....including time limits for testimony and presentation of evidence....and even guidelines regarding acceptability of what I shall call "quality of evidence".  For example, during the Memory Care episode, traffic "evidence" was accepted from a hired consultant who had taken it from a handbook but done no on-site traffic study.  Factual evidence from neighbors who had done a 24-hour, on-site, traffic count of current traffic was disallowed.  Further, fairly restrictive time limits imposed on appellants by the Presiding Officer forced some appellants to "rush" their presentations and forced some  to omit parts of their prepared testimony.  Having a published process, including time limits and types of acceptable evidence, would at least partly overcome some of these shortcomings.  
Version A of proposed Title 19 is somewhat enticing in that it establishes the City Council as the Appeal Body in all situations except those where appeals must be made to the Shoreline Hearings Board or Growth Hearings Boards, by law.  But, it incorporates the Hearing Examiner to do open-record public hearings with obvious dollar costs but no guaranteed benefits.  Version B is likewise enticing in that it relies on the Planning Commission rather than a Hearing Examiner to conduct the "open-record public hearing" in quasi-judicial matters but then forces any appeals to be made to Superior Court.  Forcing its citizens to go to court to be heard instead of being able to make appeals to their local elected officials first is not consistent with my idea of sound democratic principles.  Accordingly, I am forced to oppose both Versions A and B of proposed Title 19, and for that reason, Title 19 itself.  We are not ready for it.
I believe the citizens of Anacortes are entitled to expect resolution of disputed matters at the local level by the people we elect to do just that and do it at the least possible cost to all concerned.  The best way of doing that is simply to remove all possible potential grounds for disputes. That would best be accomplished by making our processes extremely open and thoroughly explained in public places such as the AMC, and by making certain our codes are much more succinct, fair, and realistic than they currently are.
Even after more than two years of work on Title 19, it does nothing to solve the real problem.  The problem is Title 17 and it is imperative that you begin immediate and diligent work on updating Title 17.  Everything else can wait.  Besides, it would give you something to do at study sessions, six of which were cancelled last year "due to lack of pressing business".

Terry Christiansen                                                        
3302 K Avenue

Terry Christiansen

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