Loading...
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 Y, pP g 9 pp p ( ) 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 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 3 410 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 411 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. 0 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). • •