HomeMy WebLinkAbout09/22/2009 00 Agenda and Packet •
David Edler, Mayor
' Micah Cawley, Assistant Mayor
k 'C' Yakima Maureen Adkison
''''',„:4iV rte: • ./ City Council Ric Lover Ense fey
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Agenda
129 N. 2nd Street,Yakima,WA. 98901 Sonia Rodriguez
Phone: (509) 575 -6000 • Fax (509) 576 -6614 City Manager
Email: ccouncil @ci.yakima.wa.us • www.ci.yakima.wa.us Richard A. Zais, jr.
Anyone wishing to address the Council, please fill out the form found on the tables and give it to the City Clerk
YAKIMA CITY COUNCIL
STUDY SESSION
SEPTEMBER 22, 2009 — 8:00 — 9:30 A.M.
COUNCIL CHAMBERS — YAKIMA CITY HALL
1. Roll Call
2. Review of alternate procedures for Hearing Examiner appeals
3. Audience Comments (9:15 — 9:30 a.m.)
4. Adjournment
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City of Yakima Vision Statement: To create a culturally diverse, economically vibrant, safe, and strong Yakima community. ( 11 ,
Adopted March 2008
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For meeting of: September 22, 2009
ITEM TITLE: City Council Study Session Regarding Alternate Procedures for
Hearing Examiner Appeals
SUBMITTED BY: William R. Cook, Director Community and Economic
Development
CONTACT PERSON/TELEPHONE: Joan Davenport, Planning Manager (576 -6417)
SUMMARY EXPLANATION:
City Council previously requested a report regarding the option to have appeals of a Hearing Examiner
decision heard by Superior Court rather than City Council. On May 5, 2009 this report was presented
to Council and referred to the Intergovernmental Committee.
This study session was scheduled in order to provide the Council an opportunity to give direction prior
to proceeding any further with public review and implementation.
Resolution _ Other (Specify). report and minutes from Intergovernmental
Committee Contract
Funding Source
APPROVED FOR SUBMITTAL: . City Manager
STAFF RECOMMENDATION: Provide direction regarding public review process
BOARD /COMMISSION /COMMITTEE RECOMMENDATION:
COUNCIL ACTION:
•
Yakima City Council Study Session of September 22, 2009
Alternate Procedures for Hearing Examiner Appeals
Update of Review
The Yakima City Council previously requested a report from the Community and Economic
Development Department and the City Legal Division regarding the option that appeals of
Hearing Examiner Decisions could be referred to Yakima Superior Court, rather than directly to
City Council. On May 5, 2009 the Council received this report, and after brief discussion
referred the item to the Intergovernmental Committee of the Council to determine if Yakima
County was interested in consideration of optional processes.
The Intergovernmental Committee discussed this item at their May 20 and June 1 meetings.
Yakima County Commissioners indicated that they would not be interested in changing the
current procedure in which the Commissioners hear appeals of County Hearing Examiner
Decisions.
Yakima City Council members of the Intergovernmental Committee indicated that they
recommend a study session to provide an opportunity to hear comments from all interested
parties.
The Central Washington Homebuilders Government Affairs Committee discussed this item at
their August 20 meeting. They have submitted written comment to the City Council. At this
time, no other outreach effort has been conducted by staff to receive comments.
Of the ten First Class cities in Washington, two cities do not have a Hearing Examiner. Of the
remaining 8 cities, Yakima is the only First Class city that does not use Superior Court to hear
appeals of Hearing Examiner decisions.
Study Session Objectives
This City Council Study Session was scheduled to provide staff direction regarding whether or
not to proceed with a public comment process related to the option for appeals of Hearing
Examiner decisions to be heard by Superior Court rather than the City Council. A public meeting
could be scheduled in the near future. The Regional Planning Commission could host this
meeting or one of the Council subcommittees. Alternately, staff could send a letter and request
written comments. City staff has identified approximately 60 parties that have an interest in
development and may be invited to attend a public comment process.
Attachments
1. Central Washington Homebuilders Comments, 9 -22 -09
2. Intergovernmental Committee Minutes, 5 -20 -09
3. Intergovernmental Committee Minutes, 6 -1 -09
4. City Council Agenda Statement and Report from 5 -5 -09
5. Potential Interested Parties List
C B 0 Central Washington
Wo Builders A ssociation
MEMORANDUM
TO: The Honorable Mayor and Council
FROM: Central Washington Home Builders Association
DATE: September 22, 2009
SUBJECT: Appeals of Hearing Examiner Decisions
The Central Washington Home Builders Association opposes any change to the Municipal Code 1
which would require appeals of the Hearing Examiner's decisions to be filed in the Yakima
Superior Court. The CWHBA supports keeping the appeals before the City Council, as is
presently the procedure.
The CWHE3A believes that a change requiring appeals to be filed in court would not be in the
public's interest for the following reasons:
It is the people's Constitutional right to petition their elected officials for redress of
grievances. y Appeals to the court would eliminate the citizen's appeal opportunity before
his /her elected representatives. Since the legislative body approved the codes and ordinances
that govern use property, that body should hear the appeals.
The appeal process should be closed record public meetings. According to the Municipal
Code (Chapter 15.16), these periodic appeals are intended to be closed record public meetings.
The public meeting appeal process is laid out for the legislative body to judge the same
evidence and testimony provided to the hearing examiner in full view of the public. The
complexity of issues should not be an excuse to remove oneself from an appeal.
If appeals are to the court, the city staff will likely spend as much time preparing a case
for court as they would for a council public meeting. The City would be in a position of
having to defend the hearing examiners decision in court.
In addition, there would be added costs for the citizen appellant to hire an attorney to
represent the case in court. There are delays and costs related to an appeal in court. The
council should consider that appeals to a court make it more difficult for the appellant citizen.
Making a process more difficult for citizens is not in the community's best interest.
The court lacks the flexibility to look at land use issues from a local perspective of
community land use planning. The developers prefer the appeal process to Council because
it represents one last opportunity to reconcile project differences with the community. This
opportunity would be completely lost if appeals are moved directly to the court.
3301 W. Nob Hill Blvd. • Yakima, WA 98902
509.454.4006. 800.492.9422 • Fax 509.454.4008
www.cwhba.org
"Building and Supporting Our Communities Since 1955°
Yakima City,Cou Com mitteellleetmg A �„
Council' Intergovernmental' 1ations Committee
Monday, June 1, 2009
' 2:00 p.m.
CED Large Conference Room
Council present: Dave Edler, Rick Ensey, Bill Lover
Commissioner: Mike Leita
City staff present: Dick Zais, Dave Zabell, Bill Cook, Joan Davenport
County staff present: Vern Redifer
Commissioner Leita and Councilmember Lover are scheduled to meet with Mayor Lemon
of Union Gap on June 2. They will discuss reestablishment of the joint board and the
airport overlay.
Joint. Board: In regard to the reestablishment of the joint board, Bill Lover asked for
clarification on the membership of the Yakima Urban Area Planning Commission as it is
shown on the County's draft flowchart. Mike Leita said the flowchart represents how many
members both the City and County would appoint, but it does not determine where the
members would live or what position they would advocate. Bill Cook asked for clarification
about the process for the Joint City Council and Board of Commissioners Hearing to reach
a final decision. Mike Leita used adult business as an.example. He said that in this
format, there must be consensus or there is no decision. He stated that is the only way
both parties can be protected. If there is a difference of opinion the process would have to
start over. If differences of opinion are accepted then there will continue to be disparity of
ordinances between the City and the County. He said that current practice is missing the
proposed process that occurs prior to the joint hearing. Mayor Edler said that he wants to
be able to split from the County at the end of the decision should it not be what is best for
the City. Bill Lover said that he thought he had heard at the last meeting that there could
be two decisions. Vern Redifer asserted that he thought the reason to talk was to reach
common 'standards and now the City seems to be asking if it can be different. Dave Edler
said that from his perspective, a piece of the discussion was to build common standards
for roads, sidewalks, street lights and so on. Now the discussion encompasses broader
issues such as the adult business ordinance. He stated that he would like urban area
development standards that are as close to similar as possible so he wants to firm up the
joint board issues and get back on track to look at development standards. Mike Leita
confirmed that the City and County are in agreement; the County also desires to have
common standards. In order to achieve common standards, the County is suggesting the
joint board process be reinstituted and modified to exclude Union Gap.
Airport Overlay: Dave Zabell said that the proposed interlocal agreement would set up a
framework for Yakima County, the City of Union Gap and the City of Yakima to work
together on the airport overlay. He recently received an email from Mike Redmond in
regard to forming a staff level group to work through the final overlay issues and prepare
for public review. Vern Redifer said that the County is prepared to take lead SEPA status.
Mike Leita asked if the City is okay with the County's overlay process steps and issues.
He suggested that determining the process for the County to become the lead SEPA
agency could occur within the Intergovernmental Committee. He said that due to
downsizing in the County's Planning Department, he is concerned with how they will
handle this process. Perhaps after the meeting with Union Gap the entities would jointly
hire a lead official or similar. He asked how the staffs would dialog with that person. Dick
Zais suggested the process could be worked out at the staff level. Bill Cook said that the
City is working on comments for the airport. Dave Edler charged the City staff to be ready
to respond and to be forward thinking but we will wait until we know the status of Union
Gap to finalize the interlocal agreement. Mike Leita said that all points have to be clarified
before the County will sign. •
Hearing Examiner: Mike Leita talked with the other County Commissioners about the
procedural change in the Hearing Examiner process that the City Council is considering.
The Commissioners affirm that they want to continue to be part of the review and appeal
process. Rick Ensey said that he is concerned that the small projects will be shut out of
the process. Dave Edler said that the Council wanted the Commissioners to be aware of
the issue. Bill Lover stated that any decision the Council makes can be appealed to
Superior Court. He went on to say that while some issues can be complex, he thinks the
Council has done well. He also thinks that someone needs to listen to the public and that
Council is not as imposing as Superior Court. A study session with all interested parties
was recommended.
Barrel House parking lot: Dick Zais asked if the County was interested in an extension;
Mike Leita said no. He did say however, that the County is in the process of creating an
agreement with the Committee for Downtown Yakima (CDY)_ to develop a landscaped
activity area for the lot on the corner of Second Street and "A" Street. The area should be
landscaped and in use by the end of the year.
For the next meeting: Mike Leita said that by the next meeting discussion will have
occurred with Union Gap. The Committee should then be able to finalize the
Memorandum of Understanding or the Interlocal Agreement for the airport and also the
joint board issue. He said that item number six on the agenda (discussion and
recommendations on how to proceed with the County's consideration of an Adult Business
Ordinance for the Terrace Heights and West Valley Urban Growth Area) could be the first
issue processed under the new joint board. Dave Edler said that would be up to the full
Council.
The next meeting of the Intergovernmental Committee is scheduled for Monday, July 6, at
2:00 p.m.
Approved by:
David Edler, Chair Date
Yakima�Crty„ "Council Committee Meeting
Counci(Intergovernmental Wcations Committee
Wednesday, May 20, 2009
1:30 p.m.
CED Large Conference Room
Council present: Dave Edler, Rick Ensey, Bill Lover
Commissioner: Mike Leita
City staff present: Dick Zais, Dave Zabel!, Bill Cook, Michael Morales, Joan Davenport
County staff present: Vern Redifer
The first item of discussion was a flowchart created by City staff regarding
recommendations related to process issues for the Intergovernmental Committee to act as
the Joint Board for land use issues within the Yakima Urban Area. Joan Davenport
reviewed the flowchart steps and stated that staff had tried to capture how the process
works. Commissioner Leita clarified that the two staffs have met and that their charts are
similar. Vern Redifer reviewed the steps on the flowchart drafted by County staff. He said
that one of the major reasons we have come to this point is to come as close as we can to
identical land use standards. Commissioner Leita said that whether it is clearly a City
issue or clearly a County issue, it is good that it is communicated to the Joint Board. Then
the Joint Board will give direction to the Planning Commission as to who is going to be
involved in the process. This can cover everything from adult businesses to road issues.
Bill Cook pointed out that the one part of the process that was not clearly defined
previously is the outcome of the joint public hearing. Commissioner Leita said the Joint
Board would decide whether it is a common issue or a separate issue. Bill Cook asked if it
would be necessary for both entities to agree and suggested that the makeup of the
commission is important. Commissioner Leita said that what ever the representation is,
we have to have consensus on an ultimate conclusion.
The next item of discussion was the involvement of Union Gap in the Joint Board process.
Joan reported that Bill Rathbone of the City of Union Gap suggested that the
Intergovernmental Committee could send a letter to Mayor Lemon, asking formally whether
or not Union Gap would like to continue to participate. Commissioner Leita said that they
have not participated for years due to changes that have occurred. He wants that reality to
be clear in the communication. Commissioner Leita will draft the letter and bring it to the
next Intergovernmental Committee meeting for input.
Discussion occurred from a worksheet that included general purposes of the Joint Board,
the purpose of the RPC, the potential use of a Memorandum of Understanding to update
the Joint Board agreement, the number of members, and the roll of the Intergovernmental
Committee.
Vern Redifer asked if issues should be able to go back and forth between the Joint Board
and the Planning Commission. It was agreed that the process should not go back to the
Joint Board following public input at the Planning Commission level. It should go directly
on to the Joint City Council and Board of Commissioners Hearing.
Mayor Edler summed up the next steps as tweaking the flowcharts (the visuals) and
Commissioner Leita will draft a letter to Union Gap.
The next item of discussion was the airport overlay. Vern Redifer said that there are
several things that the City of Yakima, Yakima County and the City of Union Gap need to
agree on. He suggested that the Committee talk about how to combine the SEPA process
so that one of the three jurisdictions takes the lead and consults with the other two. He
handed out a list of Airport Overlay Zoning Process Steps and Issues. Step one and two
on the list are the responsibility of the airport. At step three the government jurisdictions
become involved. Commissioner Leita said that his understanding is that the airport board
and management want to finalize their proposals and move into step three as quickly as
possible. They have asked for more input from the cities and the County but the County
has already provided input and they will not provide more on the draft overlay.
Commissioner Leita would like the City of Yakima and the City of Union Gap to formalize
their positions so that the airport has a reasonable understanding of the respective
positions so they can draft their overlay to bring it toward step three which requires
multijurisdictional aspects. Mayor Edler said the City of Yakima has tried to let the airport
know that the City is concerned about some aspects of the draft. He suggested that
bringing forth some specific comments would be a good way to proceed. He also thought
that the lead agency aspect made sense. Joan Davenport said that staff would be happy
to prepare supplemental final comments for the draft. She also said that City staff strongly
supports the idea of a lead agency. Dick Zais added that he thinks it makes sense for the
County to be the lead because the airport is a regional entity. In regard to the proposed
modified interlocal agreement for the airport overlay, Commissioner Leita said it is a good
starting point. He would like to give it to Union Gap to have their review. Also, County
staff will review and will have comments at the next Intergovernmental Committee meeting.
Vern asked if the contact with Union Gap would be made first by the electeds.
Commissioner Leita agreed that it would be good to talk to Mayor Lemon before a letter is
sent about the Joint Board. He will set up a meeting as soon as possible. Since Mayor
Edler will be out of town the following week, Bill Lover could substitute. They will also
discuss the airport overlay at that meeting, suggesting that Union Gap should send their
comments to the airport. The interlocal agreement can be discussed also.
The next item of discussion was the Hearing Examiner decision process. Mayor Edler said
that Council had requested and received a report from staff related to the procedures for
referring appeals of final Hearing Examiner decisions to Superior Court, rather than City
Council. The Council sent it on to the Intergovernmental Committee to determine if
Yakima County would be interested in the procedural change. Commissioner Leita said
that in his opinion, the Commissioners are paid by the taxpayers to protect their interests
and he thinks the appeals should stay with the Commissioners. However, he will ask the
other Commissioners and will report back at the next meeting. A public comment process
will be conducted. Both the City and County are also interested in hearing from the
development community. Dick Zais said that it would be appropriate to hold informal
discussions with the development community while waiting for further action from the
Intergovernmental Committee.
Commissioner Leita brought up the County's lease on the parking lot next to the Barrel
House. He said it expires in less than a year, they see no need to renew and they are
supposed to give notice.
The next meeting of the Intergovernmental Committee is scheduled for Monday, June 1, at
2:00 p.m.
Approved by:
•
David Edler, Chair Date
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT / l
Item No. l v
For Meeting of May 5, 2009
ITEM TITLE: A report regarding referral of appeals of Hearing Examiner
decisions to the Yakima Superior Court
SUBMITTED BY: William R. Cook, Community and Economic Development
Department Director
CONTACT PERSON/TELEPHONE: Jeff Cutter, City Attorney (575 -6030)
Joan Davenport, Planning Manager (576 -6417)
SUMMARY EXPLANATION: Staff was asked to report to City Council regarding
consideration of a change in the Municipal Code that would require appeals of the Hearing
Examiner's final land use decisions be filed in the Yakima Superior Court rather than being
appealed to the. City Council, as is presently the procedure. In recent years many cities within
Washington State that previously sent land use appeals to the City Council or Commission for
review have now chosen to direct land use appeals to the Superior Court under a Land Use
Petition Act (LUPA) appeal process.
Essentially, the reasons supporting a change in appellate procedure include the facts that (1)
today's land use decisions, and appeals of those decisions, are extremely technical in nature
and are highly regulated by many levels of statutory control and multi - disciplinary
considerations that a layperson is typically unaware of; (2) land use issues have become far
more economically intense as land development values and costs of regulatory mitigations
have escalated, making appeals and litigation a far more prevalent and costly aspect of land
use decision - making; (3) appeal hearings typically consume disproportionate amounts of
Council's valuable meeting time and (4) land use appeals most often involve issues that are
both emotional and controversial, thereby requiring that the body hearing the appeals
possess a solid understanding of the appropriate weight to be allowed for the various aspects
of the disputed issues.
Resolution Ordinance Other (Specify)
Agreement Mail to (name and address):
Funding Source
APPROVED FOR SUBMITTAL: City Manager
STAFF RECOMMENDATION: Direct an ordinance amending the Yakima
Municipal Code to reflect that appeals of a Final Land Use Decision by the Hearing
Examiner must be filed with the Yakima Superior Court rather than being appealed
to the City Council.
BOARD /COMMISSION /COMMITTEE RECOMMENDATION:
COUNCIL ACTION:
REPORT TO THE YAKIMA CITY COUNCIL
TO: Honorable Mayor and Members of the City Council
FROM: Jeff Cutter, City Attorney
Bill Cook, Director of Community and Economic Development
DATE: City Council Meeting Report for May 5, 2009
SUBJECT: Referral of Appeals of Hearing Examiner Decisions to the Yakima
Superior Court
Summary of Recommendation
Direct an ordinance amending the Yakima Municipal Code (Sections 1.43.140;
1.43.160; 1.43.170; 15.16:040; 15.20.040; and 16.08.030, as well as others) to
reflect that appeals of a Final Land Use Decision by the Hearing Examiner must
be filed with the Yakima Superior Court rather than being appealed to the City
Council.
Background
Staff was asked to report to City Council regarding consideration of a change in
the Municipal Code that would require appeals of the Hearing Examiner's final
land use decisions be filed in the Yakima Superior Court rather than being
appealed to the City Council, as is presently the procedure. In recent years
many cities within Washington State that previously sent land use appeals to the
City Council or Commission for review have now chosen to direct land use
appeals to the Superior Court under a Land Use Petition Act (LUPA) appeal
process. This has been particularly true in jurisdictions utilizing a Hearing
Examiner form of review. The City of Yakima presently utilizes a Hearing
Examiner as a decision - making authority for many land use action requests and
application considerations.
The Council's interest in directing appeals of final Hearing Examiner decisions to
Superior Court parallels the action taken by Council in 2005 that directed that all
appeals of the Hearing Examiner's SEPA decisions would go directly to the court
for review. The considerations supporting the decision directing appeals of the
Hearing Examiner's decisions to the court as LUPA actions hinge on principles
very similar to those that supported the 2005 SEPA appeal change.
Essentially, the reasons supporting a change in appellate procedure include the
facts that (1) today's land use decisions, and appeals of those decisions, are
extremely technical in nature and are highly regulated by many levels of statutory
control and multi - disciplinary considerations that a layperson is typically unaware
of; (2) land use issues have become far more economically intense as land
development values and costs of regulatory mitigations have escalated, making
appeals and litigation a far more prevalent and costly aspect of land use
1
decision - making; (3) claims for attorney fees in land use matters are allowed
under two specific statues, thus local government could face the prospect of an
award of damages and a claim for attorney fees (see attached); (4) appeal
hearings typically consume disproportionate amounts of Council's valuable
meeting time and (5) land use appeals most often involve issues that are both
emotional and controversial, thereby requiring that the body hearing the appeals
possess a solid understanding of the appropriate weight to be allowed for the
various aspects of the disputed issues.
It is primarily for these reasons that elected representatives in several other cities
in Washington have determined that they function more effectively as legislative
policy makers than as judges, and have passed these technical appellate
responsibilities to the courts for consideration. As identified in (2), above, a
significant corollary benefit to the Council and the City for moving away from its
role as a quasi judicial decision - making body in land use appeal considerations is
the virtual elimination of potential economic liability for actionable decisions, an
important risk management element.
Another point of consideration which has been raised by other communities that
have considered and ultimately implemented this change in appellate procedure
is that the Council's effectiveness relies heavily on the ability of its elected
officials to talk and interact with their constituents. This interactive opportunity is
effectively cut off when the Council is acting in the quasi - judicial role it serves
during the appeal hearing process. RCW 42.36.060 prohibits ex parte contacts
between the Council Members and opponents or proponents of an appellate
hearing during the pendency of the hearing unless (1) the substance of the
communication is placed on the record and (2) the parties have the opportunity to
rebut the substance of the disclosed information. This may be the most disliked
Appearance of Fairness requirement, at least from the perspective of local
constituencies and their elected representatives. Local citizens find it difficult to
understand why they are not allowed to consult with their elected representatives
on controversial development permit applications.
State law allows for a Hearing Examiner's final land use decisions to be appealed
directly to the Superior Court under the provisions of RCW 36.70C (Land Use
Petition Act). The Statute provides detailed process, deadlines and criteria for
filing the petition seeking appeal of the administrative decision with the court. At
the conclusion of the appellate review the Superior Court may affirm, reverse or
remand the underlying decision to the Hearing Examiner for further proceedings
or testimony.
Land Use Actions Subject to this Recommended Procedural Change
The Yakima Hearing Examiner presently provides the final decision on (1) Class
(3) zoning matters (approximately 15 per year); (2) appeals of such
administrative decisions as Preliminary Short Plat approvals, Preliminary Plat
2
Extension requests, Administrative Adjustments, Class (2) decisions and
Variances.
Often, a land use matter includes multiple application types which may require
the Hearing Examiner to render a recommendation on certain aspects of an
application (such as a Rezone) and a final decision on another aspect, such as
an appeal of a prior SEPA determination. In those situations, the Hearing
Examiner's recommendation shall be considered by the City Council and the
Council will ultimately render a final decision. The SEPA appeal would already
have been resolved at the Hearing Examiner review and no additional
administrative appeals are permitted under the City's ordinances. Historically,
from 2000 to the present under the existing decision review process, the City
Council has heard sixteen appeals of the Hearing Examiner's land use decisions.
All first class Washington cities except Vancouver and Yakima require that land
use appeals be decided by the courts.
Appeals of Hearing Examiner Decisions to City Council 2000 - 2008
2000 - Hillis: Appeal of the Hearing Examiner's decision on a Short Plat .
application to City Council.
2000 - Doremas: Appeal of the Hearing Examiner's decision on a Class (2) and
SEPA decision to City Council.
2000 - Walther: Appeal Class (3) Hearing Examiner's denial of beauty shop
modified site plan to City Council
2000 - Floyd: Appeal of Hearing Examiner's Interpretation to City Council.
2001 - Kleppin: Appeal Class (3) Hearing Examiner's conditions for hours of
operation to City Council.
2001 - Mills: Appeal of Hearing Examiner's Interpretation.
2002 - Raymond: Appeal of Hearing. Examiner's Approval for Casino to City
Council
2003 - Braun: Appeal Notice of Non - compliance from Hearing Examiner's to City
Council Fence Height Issue.
2004 - Triumph Treatment Center: Class (3) Review, Interpretation,
Environmental Checklist & SEPA Appeal.
2005 - Remand of above hearing
3
2006 — Concerned Citizens: Appeal of Hearing Examiner's Decision of Wal -Mart.
2007 — Noel Corporation: Rezone, Environmental Checklist, Comprehensive
Plan Amendment & SEPA Appeal.
2008 — Concerned Citizens: Appeal of Hearing Examiner's Decision for Approval
of a Bed and Breakfast Home Occupation.
2008 — Toscana: Class (3) Review, Class (2) Review, Administrative Adjustment,
Environmental Checklist & SEPA Appeal
Summary
The tension between the City Council's desire to remain "connected" with the
decisions affecting the City's citizens and the reality that land use law has
become far more complex and subject to layers of regulatory control since
implementation of the Growth Management Act as well as the enormous
escalation in land development costs makes the decision on whether or not the
City Council should hear appeals of the Hearing Examiner's decisions on land
use issue a difficult one. Many first class cities in Washington have either utilized
the courts and the provisions of the Land Use Petition Act as the source of
appellate review of a Hearing Examiner's final decisions, or they have amended
their appeal procedure to the court's review. The reasons are individual to each
jurisdiction, but are generally reflective of the following:
1: The complexity of the law pertaining to land use decision- making has
increased dramatically since implementation of the GMA and the regulatory
spider web that now exists to meet its compliance;
2. The environmental conditions associated with land development that
are a part of application review are intertwined, complex and often very difficult to
navigate;
3. The economic stakes of land development today are enormous, based
upon higher land and development costs, the potential for huge expenses
associated with required development mitigations and the related costs of
litigation; thus the decision - making process affecting development goals can
carry tremendous potential liability if not defensible if and when appealed;
4. Claims for attorney fees in land use matters are allowed under two
specific statutes. Local government thus faces the prospect of an award of
damages and a claim for attorney fees (see attached);
5. Elected officials are effectively removed from some important
interactive opportunities with the citizens of their city when the elected officials
4
are serving in the quasi- judicial role during an appeal proceeding; the appeal
process takes up an exorbitant amount of precious public meeting time that could
be used for conducting City business;
6. The courts are far better suited, with expertise, awareness of
procedure and the knowledge to develop a proper record during an appeal
proceeding, to hear and resolve complex land use appeal issues while
appropriately applying the law pertaining to those issues, and to apply the
appropriate weight to the legal and emotional portions of these often contentious
issues; and
7. The cost to appeal a Hearing Examiner's decision to the court is the
payment of the $200.00 filing fee; the court is required, pursuant to the LUPA
statutes, to timely hear LUPA appeals in an expedited timely manner, therefore
relieving the concerns that sending the matter to the court will result in
undesirable delays, and an appellant may, but is not required to use an attorney
to carry out a LUPA appeal.
For these reasons most first class cities have chosen to utilize the courts to
consider appeals of the Hearing Examiner's land use decisions in order to
provide the best, safest and most well reasoned decisions possible for these
often far- reaching determinations. The proper application of the law to the facts
and circumstances is critical to obtaining a legally sufficient decision.
If the City Council ultimately decides to follow the other first class cities that have
chosen to have land use decisions appealed to the Superior Court rather than to
Council, then the next step should be direction to the staff to revise the City's
ordinances to authorize this procedure.
5
Attorney Fees
Claims for attorney fees in land use matters are allowed under two specific statutes. RCW
4.84.370; RCW 64.40.020. See Moss v. City of Bellingham, 109 Wn. App. 6, 31 P.3d 703
(2001). For example, pending litigation against the City of Moxee involves these claims
for attorney fees. Local government thus faces the prospect of an award of damages and a
claim for attorney fees. See Westmark v. City of Burien, 140 Wash. App. 540, 166 P.3d
813 (2007) (award of damages against municipality upheld in the amount of $10.7
million dollars). Westmark significantly opens the door to enhanced liability for a
municipality in this area. Moreover, a claim for attorney fees may also be made under
federal law. See Benchmark v. City of Battle Ground, 94 Wn. App. 537, 972 P.2d 944
(1999).
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Hearing Examiner Appeal Interested Parties
Name = ,, Mading.Address City State Zip d`res
SiteAds NaicCode
TRAHO ARCHITECTS PS 1460 N 16TH AVE #A YAKIMA WA 98902 1460 N 16TH AVE #A ARCHITECTURAL SERVICES
WARDELL ARCHITECTS, P.S. 509 W CHESTNUT AVE YAKIMA WA 98902 509 W CHESTNUT AVE ARCHITECTURAL SERVICES
STECKER DESIGN AND CONSULTING 122 WARREN RD YAKIMA WA 98901 CITY OF YAKIMA ARCHITECTURAL SERVICES
JK HOME DESIGNS 105 N 87TH AVE YAKIMA WA 98908 105 N 87TH AVE ARCHITECTURAL SERVICES
BROCKWAY, OPFER, RAAB, ARCH. PLLC 1320 N 16TH AVE #C YAKIMA WA 98902 1320 N 16TH AVE #C ARCHITECTURAL SERVICES
TRADITIONAL DESIGNS, INC. 410 W CHESTNUT YAKIMA WA 98902 410 W CHESTNUT ARCHITECTURAL SERVICES
POSTON ARCHITECTS, INC 8503 KAIL DR YAKIMA WA 98908 8503 KAIL DR ARCHITECTURAL SERVICES
WESTERN BUILDING DESIGN 607 S 48TH AVE #A YAKIMA WA 98908 607 S 48TH AVE #A ARCHITECTURAL SERVICES
CULPEPPER, E. THOMAS - ARCH. 18 BURNING TREE DR YAKIMA WA 98902 18 BURNING TREE DR ARCHITECTURAL SERVICES
BENNETT LANDSCAPE LLC 219 S 64TH AVE YAKIMA WA 98908 219 S 64TH AVE LANDSCAPE ARCHITECTURAL SVC
S.C. IRONS & ASSOCIATES 102 PARK AVE YAKIMA WA 98902 102 PARK AVE ARCHITECTURAL SERVICES
PILLAR TO POST PROFESSIONAL HOME INSP 2612 W NOB HILL BLVD #101 YAKIMA WA . 98902 1 SHAMROCK LN ARCHITECTURAL SERVICES
RKS CONTRACTING 6108 COWICHE CANYON RD YAKIMA WA 98908 6108 COWICHE CANYON RD LANDSCAPE ARCHITECTURAL SVC
CW ARCHITECTURE PLLC 2601 RIVER ROAD YAKIMA WA 98902 CITY OF YAKIMA ARCHITECTURAL SERVICES
LARSEN LANDSCAPE ARCHITECTURE 105 S 3RD AVE YAKIMA WA 98902 105 S 3RD AVE LANDSCAPE ARCHITECTURAL SVC
JK HOME DESIGNS 311 N 4TH ST #302 YAKIMA WA 98901 311 N 4TH ST #302 ARCHITECTURAL SERVICES
KDF ARCHITECTURE 1310 N 16TH AVE YAKIMA WA 98902 1310 N 16TH AVE ARCHITECTURAL SERVICES
LOOFBURROW ARCHITECTS PS • 201 W YAKIMA AVE YAKIMA WA 98902 201 W YAKIMA AVE ARCHITECTURAL SERVICES
Name 14
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CONLEY ENGINEERING, INC. PO BOX 8326 YAKIMA WA 98908 205 N 40TH AVE #201 ENGINEERING SERVICES
HUIBREGTSE, LOUMAN ASSOC, INC. 801 N 39TH AVE YAKIMA WA 98902 801 N 39TH AVE ENGINEERING SERVICES
MACKEY CONSULTANTS, LLC 3404 W CHESTNUT AVE YAKIMA WA 98902 3404 W CHESTNUT AVE ENGINEERING SERVICES
ANDREOTTI & ASSOCIATES, INC. 305 N 6TH AVE YAKIMA WA 98902 305 N 6TH AVE ENGINEERING SERVICES
I.S.H.E.C. PO BOX 8314 YAKIMA WA 98908 110 N 50TH AVE ENGINEERING SERVICES
DEC ENGINEERING SERVICES 4805 CASTLEVIEW DR YAKIMA WA 98908 4805 CASTLEVIEW DR ENGINEERING SERVICES
PRO SERVICES ENGINEERING CORP PS 1015 S 40TH AVE #14 YAKIMA WA 98902 1015 S 40TH AVE #14 ENGINEERING SERVICES •
CH2M HILL, INC P.O. BOX 22508 DENVER CO 80222 CITY OF YAKIMA ENGINEERING SERVICES
G.H. PECHTEL AND ASSOCIATES INC P.O. BOX 2063 YAKIMA WA 98907 25 N FRONT ST #5 ENGINEERING SERVICES
WATER QUALITY ENGINEERING, INC. 103 PALOUSE ST SUITE #2 WENATC WA 98801 732 N 16TH AVE #21 ENGINEERING SERVICES
OTAK, INC. 6 S 2ND ST #317 YAKIMA WA 98901 6 S 2ND ST #317 ENGINEERING SERVICES
JOHN A TATE - CONSULTING ENGINEER 11 N 59TH AVE YAKIMA WA 98908 11 N 59TH AVE ENGINEERING SERVICES
GRAY SURVEYING & ENGINEERING, INC. PO BOX 510 YAKIMA WA 98907 2706 RIVER RD ENGINEERING SERVICES ,
LESLIE ENGINEERING, LLC 1302 S 26TH AVE YAKIMA WA 98902 1302 S 26TH AVE 541330 - ENGINEERING SERVICES
PLSA ENGINEERING & SURVEYING 1120 W LINCOLN AVENUE YAKIMA WA 1 98902 1120 W LINCOLN AVENUE ENGINEERING AND SURVEYING
N' ame.': Malin Address �, Cit State Zi -Site Address , J tr , Naic Code,
THOMAS F. UPTON 2115 W LINCOLN AVE B YAKIMA WA 98902 2115 W LINCOLN AVE B SURVEYING
DON LEISCHNER 205 N 4TH AVENUE YAKIMA WA 98902 205 N 4TH AVENUE SURVEYING
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Name � .. , �� ° "z. Madmg Address ....�'"� -. aa,Ci State�> . � Z +P �: Site Add es .� � �� .�_�,.
MATTSON PROJECT ADVOCATES 2810 SHELTON AVE YAKIMA WA 98902 2810 SHELTON AVE ENVIRONMENTAL CONSULTING SVC
HORDAN PLANNING SERVICES 410 N 2nd St YAKIMA WA 98901 410 N 2nd St PLANNING CONSULTANT
DURANT DEVELOPMENT SERVICES, INC. PO BOX 1723 YAKIMA' WA 98901 513 N FRONT_STREET, STE Q PLANNING CONSULTANT
DOHRN & ASSOCIATES 2129 S ROCKWOOD BLVD SPOKANI WA 99203 2129 S ROCKWOOD BLVD PLANNING CONSULTANT
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VELIKANJE HALVERSON JAMES CARMODY PO BOX 22550 YAKIMA WA 98907 405 E LINCOLN AVE OFFICES OF LAWYERS
VELIKANJE HALVERSON - MARK FICKES PO BOX 22550 YAKIMA WA 98907 405 E LINCOLN AVE OFFICES OF LAWYERS
VELIKANJE HALVERSON - MIKE SHINN PO BOX 22550 YAKIMA WA 98907 405 E LINCOLN AVE OFFICES OF LAWYERS
Hearing Examiner Appeal Interested Parties
MENKE JACKSON BEYER EHLIS HARPER -
KEN HARPER 807 N 39TH AVE YAKIMA WA 98908 807 N 39TH AVE OFFICES OF LAWYERS
YAKIMA COUNTY BAR ASSOCIATION 311 N 4TH ST YAKIMA WA 98901 311 N 4TH ST OFFICES OF LAWYERS
Name Mailing Address City St0t0i Zip SiteAddress Naic Code
ASSOCIATED GENERAL CONTRACTORS OF WA 3611 RIVER RD YAKIMA WA 98902 3611. RIVER ROAD
LEAGUE OF WOMEN VOTERS 225 N 2ND ST - YAKIMA WA 98901 225 N 2ND ST
BARGE CHESTNUT ASSOCIATION - GARY FORREST 3011 BARGE ST YAKIMA WA 98902 3011 BARGE ST
NEIGHBORS FOR RESPONSIBLE DEV - CINDY NOBLE 5609 W ARLINGTON AVE YAKIMA WA 98908 5609 W ARLINGTON AVE
YAKIMA COUNTY DEVELOPMENT ASSOCIATION 10 N 9TH ST YAKIMA WA 98901 10 N 9TH.ST