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HomeMy WebLinkAbout08/03/2010 08 Cruise Night Change of Date • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 0 For Meeting of August 3, 2010 ITEM TITLE: An Ordinance relating to traffic; amending the previously established cruise night set for September 4, 2010 to August 28, 2010 as an "Open Cruising Event "; approving the amendment as an emergency ordinance due to the insufficient time available for a standard ordinance to take effect prior to the revised date; and amending Section 9.25.020 of the City of Yakima Municipal Code. SUBMITTED BY: Jeff Cutter, City Attorney CONTACT PERSON/TELEPHONE: Jeff Cutter, 575 -6030 SUMMARY EXPLANATION: The proposed cruise night amendment will amend the previously established cruise date of September 4, 2010 to August 28, 2010 in order to accommodate a recent request from the LowCos car club. The revision is necessarily enacted as an emergency ordinance because a standard ordinance passed by Council on August 3, 2010 would not become effective in time to • accommodate the requested amendment. The exact route of the cruise event has not been established and would not be in accord with prior cruise events due to a conflict with another event being held on Yakima Avenue at the same time. The City Attorney's memorandum opinion regarding the propriety of utilizing emergency legislation for the purpose proposed by this amendment is also included together with the requested amended legislation. Resolution Ordinance X Contract Other(Specify)Legal Opinion Contract Mail to (name and address): Phone: Funding Source APPROVED FOR SUBMITTAL: d City Manager STAFF RECOMMENDATION: Do not pass this ordinance as emergency legislation. COMMITTEE /BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: • cim/AgendaStatement/crui se200 8 • MEMORANDUM TO: Honorable Mayor Cawley and Members of the City Council Dick Zais, City Manager FROM: Jeff Cutter, City Attorney DATE: July 28, 2010 SUBJ: Emergency Cruise Night Legislation This memorandum opinion responds to the City Council's request for a legal opinion regarding whether the emergency exception to legislative action is appropriate for application to an amendment of the City Cruise Night ordinance. The brief answer is no, and the rational for that opinion follows. The existing Cruise ordinance (YMC 9.25.020), approved by Council on May 4, 2010, established City Cruise nights to take place between the hours of 6:00 pm to 10:00 pm on Saturday, June 19, 2010 and on Saturday, September 4, 2010. At the July 20, 2010 • meeting of the City Council Javier Gonzalez requested that Council consider approving another cruise 'event for the night of August 28, 2010, to occur between the hours of 6:00 pm to 1:00 am the next day. Council heard extensive discussion regarding the requested cruise event for the LowCos low rider club as part of a car show they will be sponsoring in Union Gap. This . matter came to. the Council as a result of a request by the car club for a special event/parade permit submitted to CED on July 6, 2010 for review. Insofar as cruising is unlawful in the City of Yakima under City Ordinance 9.25, this decision is not an administrative one and special authorization granted by the City legislative body is necessary to permit such events. The request was therefore submitted at the first available Council meeting to allow the Council to consider the proposal. During the Council's consideration of the request to approve another cruise event on August 28 the issue of time available to approve the necessary legislation and have the legislation become effective was discussed. It became apparent that only by the approval of the amendment to the City ordinance through "emergency" legislation would • the amendment be in effect before the requested event was to occur, due to the fact that normal legislation becomes effective thirty days after its passage and publication. Emergency legislation becomes effective immediately upon passage. This memorandum is intended to address the propriety of considering approval of the proposed amendment to the cruising ordinance as emergency legislation. Emergency legislation is provided for in Article VI, Section 2 of the City Charter, and provides, in relevant part, as follows: 1 ... emergency ordinances, or ordinances adopted by vote of the electors shall take effect at the time indicated therein: all other ordinances shall take effect 30 days after the date of the publication thereof as herein provided. An emergency ordinance is one to provide for the immediate preservation of the public peace, property, health or safety. The unanimous vote of the [council] shall be necessary for the passage of an emergency ordinance. No measure making or amending a grant, renewal or extension of a franchise or other special privilege shall ever be passed as an emergency measure. (Emphasis added) To ascertain whether an amendment to YMC 9.25.020 would legally qualify as an emergency as envisioned by the City Charter I reviewed the court's analysis of other emergency legislative measures to determine how the Washington Supreme Court considers emergency legislation. My review led me to the case of CLEAN v. State of Washington, 130 Wash.2d 782, 928 P.2d 1054 (1996, amended 1997). This case concerned the emergency legislation approved by Washington State allowing for the public financing of the baseball stadium now known as Safeco Field. This is a very long case, with many facts 'specific to the financing of the baseball stadium. However, amidst the lengthy analysis it provides a few excerpts that give some tangible effect to the court's past considerations of what qualifies as an emergency action legitimately rising to the level necessary to avoid the people's constitutionally protected right of referendum. The people's right to referendum is guaranteed by the State constitution and is also provided within Article IV, Section 3 of the City of Yakima Charter. What is guaranteed to the people is the right, upon passage of an ordinance by the Council, to petition the Council with signatures representing ten percent of the qualified voters casting votes in the last preceding general city election protesting the ordinance. Upon receiving such a petition the ordinance shall be suspended from taking effect. The petition must be received by the City Clerk prior to the opposed ordinance taking effect. This is why standard ordinances do not become effective for 30 days after publication, thus allowing an opportunity for the referendum process to be exercised. Emergency ordinances become effective immediately upon passage and thereby avoid the otherwise guaranteed right of the people to oppose the action taken. The lack of opportunity to oppose a legislative act is why emergency ordinances must be used under only the most serious instances when an immediate action is absolutely necessary. In the CLEAN case Justice Guy provided several recitations to analysis provided by that court when considering emergency legislation. Although writing in dissent in the case, his words reflect the historic holdings of the Supreme Court that lend clarity to the issue before the Council. In the CLEAN case Justice Guy cites numerous previous holdings which I will recite without their individual citations in order to avoid unnecessary and excessive dialog. Justice Guy recites: The [emergency] exception does not extend to all things touching the general welfare. It does not extend to things relating to mere public expediency or public convenience. It is not as broad as the police power, which is so broad and so variant with time and circumstance that its limits cannot be defined. • 2 • Promotion of the publie•welfare is not a criterion by which we may be guided in determining whether or not an emergency exists which defeats the right to refer the ACT to the people ... . An emergency is limited to . [f]irst, police power acts, whose purpose is the immediate preservation of the public peace, health or safety; . During a legislative session, it might appear that legislation. was immediately required to avert immediate danger to the public peace. An epidemic of vast proportions might be threatening the public health, or some great catastrophe might require immediate relief. ... The true definition of the phrase "necessary for the immediate preservation of the public peace, health or safety," to which we have long adhered, is its ordinary, obvious one. When faced with an emergency clause, the court must independently determine whether an emergency actually exists and whether the challenged [ordinance] actually addresses it. [T]he Legislature's declaration of emergency goes not to Legislative discretion, but to its constitutional power -the Legislature may circumvent the people's right of referendum only if an emergency of a particular kind truly exists. When a citizen called for a referendum, this court wrote that the Legislature "cannot defeat the constitutional right [to referendum] ... by merely inserting [an emergency clause]..." `[i]f this can be done, the right of referendum is a dead letter in this state.' To summarize the established rule, when the Legislature tacks on an emergency clause without telling what the emergency is, and judicially noticeable facts do not support its presence, we presume no emergency and strike the clause. Unless the people repeal the constitutional right of referendum, we must uphold their right to pass on all issues other than those which actually and truly fall within the narrow exception. "To uphold a legislative declaration of emergency such as this would destroy the referendum and would permit the legislature, or a group of electors barely sufficient to invoke an initiative, to impose its will upon the majority...." With these judicial principles as a guide it is my opinion that the request to initiate the proposed cruise event legislation through emergency action is an improper use of the emergency exception to the people's right to the referendum process. The only apparent emergency created by this request is that of insufficient time within which to appropriately consider a change to existing legislation. Declaring this an `emergency' seems to provide an expedient method of doing so, but is not within the standard of a public emergency. Further, this request is specifically intended to convey a special privilege to a particular group, which is not to be the basis of emergency legislation. I would respectfully advise the City Council not to invoke its emergency power for this 411 1/ purpose. 3 • • ORDINANCE NO. 2010 - AN ORDINANCE relating to traffic; revising the._ previously authorized September 4, 2010 cruise event date to August 28, 2010 . as an "Open Cruising Event "; adopting this change as an emergency act of the Yakima City Council on • • the basis that the Council desires to accommodate a very recent request . for a cruise night to accompany a low rider automobile show and there is insufficient time for a standard ordinance to take effect prior to the requested cruise date; and amending Section 9.25.020 of the. City of • Yakima Municipal Code. BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Section 9.25.020 of the City of Yakima Municipal Code is hereby amended to read as follows: 9.25.020 Cruising permitted - "Open Cruising Event ". A. Cruising shall be permitted by the public during an "Open Cruising Event" of Yakima Avcnue from 6:00 (six o'clock) p.m. to 10:00 (ten o'clock) p.m., on the following designated Saturday evenings. B. Saturday June 19, 2010 is designated an "Open Cruising Event ". C. Saturday Scptcmber 4August 28, 2010 is designated as an "Open Cruising Event ". • S 2. This Ordinance is enacted as an emergency ordinance deemed necessary to preserve the public peace, property health and safety of the citizens of Yakima and to provide for an immediate amendment to the City's Cruising Ordinance in order to avoid the otherwise unlawful cruising by participants of a low riderautomobile show being held on August 28, 2010; said ordinance shall be in full force and effect immediately after its passage and approval by a unanimous vote of the City Council as provided by law and by the City Charter. PASSED BY THE CITY COUNCIL, signed and approved this 3 day of August, 2010. Micah Cawley, Mayor ATTEST: City Clerk Publication Date • • Effective Date: 11111 cim/Ordinance /cruise2008 •