Guest View | City Council got land-use decision right

By Joseph Tovar | Sep 09, 2016
Joseph Tovar

A recent guest editorial in the Beacon argued that the Edmonds City Council should reconsider its recent vote to remove the Council as the appeal body for land use permits. I strongly disagree.

The Edmonds City Council got it right and should stick with its wise decision.

My perspective is informed by three decades of working with many city councils, as well as advising the Association of Washington Cities and the Washington Cities Insurance Authority on best practices in land use decision-making.

I have observed the Edmonds City Council over the past decade, so am quite aware of and encouraged by its progressive thinking on a variety of subjects, including this recent decision regarding quasi-judicial appeals.

Virtually every city in the state now uses hearing examiners to conduct quasi-judicial public hearings. Over the past decade, many city councils have removed themselves as the hearing body for appeals of quasi-judicial decisions.

They have delegated final decision-making authority on quasi-judicial permits to a hearing examiner, meaning that appeals of her/his decision now go to Superior Court rather than the Council.

Why have many cities taken this step?

It is first important to understand that an appeal of a land use permit is fundamentally different from the legislative processes that are the typical fare for city councils. In their legislative role of adopting plans and codes the council members have wide latitude to factor in personal values and give weight to broad public opinion.

In such legislative matters, they are free to meet individually with constituents to discuss the merits of legislation and to explicitly cite and rely on that public input in making legislative decisions.

However, the appeal of a zoning permit is an entirely different matter – it is a judicial process governed not only by state statute and local code, but the substantive and due process rights enshrined in the federal and state constitutions.

In the judicial process, factoring in popular public opinion or lobbying by constituents is not just irrelevant; it actually erodes fairness and injects significant financial risk to the city.

Risk arises from having people who are not trained as lawyers, much less as judges, attempt to, in effect, practice law.

Any number of common procedural errors can expose the city to a claim of a due process violation and subsequent monetary penalties. One example is allowing people who are not parties to an appeal to speak at the council’s appeal hearing.

Another is allowing additional comments from the parties after the hearing is closed. Still another is offering statements in open session that may be intended to mollify citizen appellants, but instead serve to undermine the fairness and objectivity of the process.

Even the most intelligent, best intentioned and detail oriented people make decisions are made by seven lay people with no background in the law rather than a single legally trained hearing examiner.

All hearing examiners have background in land use law and most are lawyers. Their professional training enables them to avoid procedural or other errors that would undermine the legal sufficiency of the hearing and decision.

As nonelected officials, hearing examiners are insulated from political pressures and are relied upon to render objective and impartial decisions.

That is why the Washington Cities Insurance Authority, the risk managers for many cities in the state, strongly encourages city councils to remove themselves from the quasi- judicial role.

One council member who opposed this reform complained that the Edmonds council has been hearing appeals for years and has “never had a problem.”

Well, as an observer of Edmonds council meetings for over 10 years, I can say that the city has been very lucky. However fortunate they have been in the past, and as careful as they might strive to be in the future, that first mistake could be a fiscally spectacular one.

As a taxpayer, I am not willing to have my council take such needless high-stakes risks.

Another council member argued that the she felt a need to honor the passion that citizens have for land use issues and that the council has a responsibility to “have them help make the decision for us.”

People in Edmonds are rightfully passionate about what a great place this is and I am glad my council members share that passion.

But I sincerely hope the councilwoman misspoke when she said that the council’s role is to have the citizens “help make the decision for us.” That would be confusing the council’s broad legislative role with the narrowly proscribed quasi-judicial role.

No judge would ever say that parties to a quasi-judicial appeal are the ones to make the decision or even “share” making the decision. Nor would a hearing examiner.

The way in which our council members can best serve the community’s passion for Edmonds’ future is to play its legislative role. City Council should continue its important work on planning projects like the critical areas ordinance, the Westgate redevelopment plan and the Highway 99 land use project.

I urge the Council to stand by their wise and progressive decision to leave the quasi-judicial appeal role to others.

Joseph Tovar is an Edmonds resident and land use consultant who advises public and private clients. He holds planning and management degrees from the Universities of Washington, California and Colorado, is an affiliate Associate Professor in the University of Washington College of the Built Environment and writes a Planning Advisor column for the Municipal Research and Services Center.

 

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