HomeMy WebLinkAbout03-14-1998sp SPECIAL CITY COUNCIL MEETING
March 14, '1998 2:00 PM
Auburn City Hall
Council Work Area
Minutes
I. INTRODUCTION
The Auburn City Council met in special session on Saturday, March 14, 1998 in the
Council Work Area located at Auburn City Hall. Mayor Booth called the meeting to order
at 2:00 PM and the following Councilmembers were present: Pete Lewis, Sue Singer,
Jeanne Barber, Trish Borden, Gene Cerino, Fred Poe, and Rich Wagner. Staff
members present included: City A~orney Michael J. Reynolds, Assistant City Attorney
Judith Ausman, Finance Director Diane L. Supler, Personnel Director Brenda Heineman,
Planning and Community Development Director Paul Krauss, Assistant Planning
Director Lynn Rued, City Engineer Dennis Dowdy, Fire Chief Bob Johnson, and City
Clerk Danielle Daskam. Also present were Michael C. Walter, Attorney with Keating,
Bucklin & McCormack, and Lew Leigh, Executive Director of the Washington Cities
Insurance Authority.
City Attorney Reynolds explained the purpose of the meeting is to review and discuss
the Hearing Examiner process and the City Council's roles in land use decisions. Mr.
Reynolds introduced Mr. Lew Leigh, Executive Director of the Washington Cities
Insurance Authority (WCIA), and Michael Walter from the law firm of Keating, Bucklin &
McCormack retained by WCIA.
II. LEGISLATIVE AND QUASI-JUDICIAL ROLES OF COUNCILMEMBERS
Mr. Walter has represented local government for fifteen years in land use related
decisions. He estimated that the majority of the lawsuits he has defended result from
quasi-judicial decisions made by either a City Council, Planning Commission or Board of
Adjustment. Mr. Walter spoke to the benefits of the hearing examiner system and
related it as a form of risk management for the City. The use of a hearing examiner
removes the City Council from the quasi-judic!al decision making and vests it in a
professional who is skilled in handling quasi-judicial hearings and who is divorced from
the political aspects of a specific project. He encouraged the Council to continue to
utilize the hearing examiner system to the fullest extent possible.
Mr. Walter discussed the City Council's roles in land use decision making. Local
governments, unlike the state legislature, have dual roles as policy makers and quasi-
judicial decision makers. State law allows the City to use a hearing examiner to decide
quasi-judicial matters. Using a handout, Mr. Walter contrasted Council legislative
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March 14,1998
Page 2
decisions versus quasi-judicial decisions. He noted that mixing the two types of
decision-making processes could lead to potential litigation. Legislative decision making
includes capital improvement planning, comprehensive planning, area-wide zoning,
establishing development standards, long-term planning, and adoption of general
application ordinances. Quasi-judicial decisions involve specific properties, specific
parties, and specific applications. Examples include: subdivision approvals, conditional
use permits, variance applications, special use permits, PUDs, and site specific rezones.
He recommended that all of the aforementioned quasi-judicial decisions should be heard
and decided upon by a hearing examiner. Comprehensive planning objectives, policy
objectives, visioning, and political considerations cannot be considered during quasi-
judicial decision making.
Mr. Waiter pointed out the City of Everett as an example of a city which after Regulatory
Reform, took away all the quasi-judicial decision making from the City Council. A
hearing examiner makes all quasi-judicial land use decisions.. The only exception is
subdivision approval, which by state law must have Council final approval. In Everett,
the hearing examiner makes a recommendation to the City Council for final approval or
disapproval of a subdivision. Appeals filed against a hearing examiner decision are
appealed in court and not to the City Council.
III. THE HEARING EXAMINER SYSTEM
Mr. Walter spoke to the advantages of a hearing examiner system. A hearing examiner: 1. Avoids political influence or pressure in the decision making process.
2. Is specially trained in conducting quasi-judicial hearings.
3. Has experience with many different jurisdictions and regulations.
4. Is technically adept. Most headng examiners are specifically trained in the
development process and utility issues.
5. Is more cost effective by reducing the risk of a lawsuit, the number of
appeals, and the number of administrative challenges.
6. Process is more efficient and faster.
7. Reduces the number of judicial reversals of decisions.
8. Reduces the number of potential legal damages claims against the city.
9. Avoids personal liability to the City Councilmembers. Mr. Walter advised the
Council of a recent decision by the U.S. Supreme Court on governmental
immunity. The Court found that City Councilmembers acting in a legislative
capacity making a legislative-type decision have absolute personal immunity
from money damages. However, the decision only applies to legislative
decisions and not quasi-judicial decisions.
10. Instills public confidence in decision-making process.
11. Helps ensure constitutional protection of due process and equal protection.
Hearing examiners are skilled in conducting hearings under Roberts Rules of
Order.
12. Helps ensure predictability and consistency and avoids political intervention.
13. Provides good customer service. Use of the hearing examiner allows the
City Council more time for better customer service.
14. Is skilled in understanding, interpreting and applying nuances of municipal
code and general legal principles.
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March 14, 1998
Page 3
15. Helps satisfy state law requirements for' streamlining regulatory process and
administrative review an appeals. Use of a headng examiner complies with
the intent of the 1995 Regulatory Reform Act.
16. Segregates and clearly delineates the legislative versus quasi-judical
decision making.
17. Frees up City Council time for other planning and law-making functions.
In response to a question from Councilmember Borden, Mr. Walter confirmed that the
City of Everett hearing examiner decisions do not go before the City Counci! for revieW,
with the exception of recommendations on subdivisions.
Mr. Waiter spoke to the City of Auburn's process that allows the City Council to conduct
a closed record hearing on a hearing examiner decision and recommendation. Mr.
Walter recommended that the City Council not conduct closed record hearings. The City
Council is prohibited from taking new testimony or evidence during a closed record
hearing. The Council's review is limited to a review of the evidence taken before the
hearing examiner during the public hearing and to determine whether the hearing
examiner clearly erred in making her decision.
Mr. Walter responded to Councilmember Borden's comments on differences in
interpretation of policies by the hearing examiner and the City Council, Mr. Walter
explained that quasi-judicial decisions are based on criteria established in the code. The
City Council's role is to review the decision, examine the existing evidence, and
determine if the hearing examiner's decision was clearly erroneous. The City's code
allows the City Council to either affirm, disaffirm or modify the hearing examiner
decision, Mr. Walter stressed that the Council must make its determination within the
constraints of the evidence that was before the hearing examiner. The Council could
also remand the decision to the hearing examiner for additional findings. Mr. Walter
recommended against the Council amending a hearing examiner decision as it can
prove to be problematic and prone to political considerations.
City Attorney Reynolds recommended the City Council not hold a closed record hearing
to review a hearing examiner decision as a closed record hearing gives the public a false
expectation.
Councilmember Wagner suggested the Council consider whether some of the quasi-
judicial issues should go before the City Council rather than the hearing examiner.
Councilmember Singer suggested that perhaps the Council's dissatisfaction with the
hearing examiner process is not with the hearing examiner but because of the City's
policies and regulations the hearing examiner must follow.
Mr. Walter suggested the City Council review its regulations and code for deficiencies.
He also suggested a dialogue between the City Council and hearing examiner to help
identify deficiencies in policies and regulations.
Councilmember Poe expressed concern with administrative decisions made under
SEPA review. Planning and Community Development Director Krauss explained that
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March 14, 1998
Page 4
some of the regulations allow some discretion on the part of the City. Mr. Walter
suggested that the policy should be clarified or revised or another staff or management
individual should review the decision.
In response to comments made by Councilmember Cedno, Mr. Walter explained that the
City Code should not be interpreted in such a way as to allow political influences or
desires of constituents to affect how it is interpreted. He also added that it should be a
rare case that the Council should overturn an administrative code interpretation by staff.
In response to a question from Councilmember Wagner, Mr. Walter advised that
property or applicant specific rezones are quasi-judicial actions and area-wide rezones
are legislative decisions. Assistant Planning Director Rued explained the City's
procedure for a rezone request that is not consistent with the Cornprehensive Plan. The
rezone is put on hold, and a Comprehensive Plan amendment is forwarded to the
Planning Commission and then the City Council for consideration.
Councilmember Wagner spoke in favor of Council review of PUD's since it is large in
scope. Council will be reviewing an ordinance establishing the PUD process in the near
future. Mr. Walter noted that PUD applications require quasi-judicial decision-making.
He urged the Council to establish specific standards and remove as much vagueness
and discretion from the PUD ordinance as possible to reduce the risk of a lawsuit.
Mayor Booth recessed the meeting at 3:50 p.m. for a five to ten minute break.
Mayor Booth reconvened the meeting at 4:00 p.m.
Councilmember Borden suggested the Council review some of the controversial land
use decisions that have occurred over the past few years and look to clarify policies.
She also suggested the Council encourage regular feedback from the hearing examiner
on the City's policies and regulations. Additionally, she urged the Council to consider
the possibility of either taking over some of the quasi-judicial decision-making, including
the open record hearing, or waiving the opportunity to conduct a closed record hearing.
Mayor Booth reminded Councilmembers that by taking on quasi-judicial decision
making, the Councilmembers also expose themselves to liability.
The Council briefly reviewed a chart prepared by staff identifying the types of quasi-
judicial issues heard by the hearing examiner during 1995, 1996 and 1997 and closed
record hearings held by the City Council.
Councilmember Wagner suggested the Council not hold closed record hearings on
hearing examiner cases any longer. He suggested the City Council should be
responsible for quasi-judicial decisions for PUD's and possibly fezones. City Attorney
Reynolds and Mr. Walter recommended that the City Council not make quasi-judicial
decisions for rezones. Mr. Walter advised that if the City Council chooses to perform the
quasi-judicial decision making for PUD's, the PUD standards and regulations must be
clearly written. Mr. Walter expressed concern with the City Council holding the open
record hearing for PUD's.
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March 14, 1998
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It was consensus of the Council that conducting closed record hearings on quasi-judicial
matters am not beneficial to the Council or the public and should be discontinued.
During consideration of the proposed PUD ordinance, the Council will evaluate whether
the City Council will be responsible for quasi-judicial decision making. The Council will
also review some of the controversial land use decisions that have occurred over the
past few years and look to clarify policies.
IV. ROLE OF REGULATORY REFORM REQUIREMENTS
Councilmember Lewis noted that a portion of the intent of the Regulatory Reform Act is
to take away quasi-judicial decision making from legislative bodies because of past
abuse. He suggested the City Council review the history of the Regulatory Re[orm Act.
Mayor Booth recessed the meeting at 4:10 p.m. for approximately 20 minutes in order to
discuss a real estate transaction.
Mayor Booth reconvened the meeting 4:55 p.m.
V. ADJOURNMENT
There being no further discussion, the meeting adjourned at 4:55 p.m.
Approved on the ~ ~ day of ~ ,1998.
Charles A. Booth,/Vlayor I~a~ieile Daskam, City Clerk
98M3-14