HomeMy WebLinkAbout05/05/2009 10 Hearing Examiner Report of Appeal Referrals to Superior Court • BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 10
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, reasons supporting a change in appellate procedure include the facts that 1
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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: ��s���� =-, �,� 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
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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
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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
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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
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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
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interactive opportunities with the citizens of their city when the elected officials
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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.
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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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