CITY OF MILTON Closed Record Consideration of Hearing Examiner Recommendations November 18, 2019 W. Scott Snyder Kari Sand ssnyder@omwlaw.com ksand@omwlaw.com (206) 447-7000 (206) 447-7000
MMC 17.71.040 Process Types Quasi-Judicial Process V Preapplication meeting--------------------- Recommended Notification Requirement------------------ 500 feet Neighborhood Meeting--------------------- Required Written Report---------------------------------- Applicable Director Open Record Hearing------------------------ Hearing Examiner Closed Record Hearing---------------------- City Council Decision-Maker--------------------------------- City Council Administrative Appeal----------------------- None Judicial Appeal---------------------------------- Superior Court Type of Review Permit----------------------- Planned Development Master Plan Chapter 17.38 MMC 2
MMC 17.71.050(E) 6. Closed Record Hearing a. The city council shall conduct a closed record public hearing for Process Type V applications a governed by MMC 17.71.140. b. Set Date for the Closed Record Public Hearing. The city clerk shall schedule the required public hearing before the city council after the completion of the hearing examiner’s review and recommendation on the application. c. General. The city council shall, at a closed record public hearing as governed b MMC 17.71.140, consider and take final action on each Process Type V application. 3
MMC 17.71.050(E) cont’d… d. Decision. The city council shall either: i. Approve the application; or ii. Approve the application with modifications; or iii. Remand the application to the hearing examiner for further review, provided the hearing examiner may not conduct another hearing as prohibited by Chapter 36.70B RCW; or iv. Deny the application. 4
MMC 17.71.050(E) cont’d… e. Conditions. The city council may, based on the record, include conditions approving or approving with modifications an application in order to ensure the application conforms to the decision criteria. f. Findings of Fact and Conclusions. The city council shall include findings of fact and conclusions derived from those facts, which support the decision of the council, including any conditions, approving or approving with modifications, or denial of the application. The city council may adopt by reference some or all of the findings and conclusions of the hearing examiner. 5
“The basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees fit.” Norco Construction v. King County , 97 Wn.2d 680, 685 (1982). 6
RCW 36.70B.060 “The review process shall provide for no more than one consolidated open record hearing …” 7
QUASI-JUDICIAL ACTIONS When a public entity is acting like a judge: • Specific parties • Fact-based decision (or other contested action) • Determine rights, duties, or privileges (policy application rather than policy setting) 8
Key Quasi-Judicial Concepts 1. City Council considers the Hearing Examiner’s recommendation in a Quasi-Judicial Capacity. A. Not Legislators – communications with public limited B. Can only consider the record C. Cannot use their own knowledge 2. Record: What was presented at the Public Hearing before the Hearing Examiner 3. No “ Ex Parte ” Communications 9
APPEARANCE OF FAIRNESS DOCTRINE 10
Appearance of Fairness Doctrine cont’d… Originally a court-created rule applied to QUASI-JUDICIAL DECISIONS Hearings must be conducted in a way that is: • Procedurally fair & • By impartial decision-makers 11
Appearance of Fairness Doctrine cont’d… DOCTRINE CODIFIED IN CHAPTER 42.36 RCW . A. Applies to local land use decisions. B. Ex parte communications (discussion outside of the public record) is prohibited between parties, citizens and decision-makers. C. Disqualification – must be raised at the earliest possible opportunity. 12
Appearance of Fairness Doctrine cont’d… TEST FOR APPEARANCE OF FAIRNESS DOCTRINE VIOLATIONS “ Would a reasonable person, apprised through the totality of a member’s personal interest or involvement be reasonably justified in thinking that the involvement might affect the member’s judgment?” Swift v. Island County, 87 Wash. 348, 361 (1976). 13
No Prejudgment of Issues: ➢ Keep an Open Mind: Although public officials are not prohibited from expressing opinions about general policy, it is inappropriate for decision- makers to be close-minded before they even hear testimony on a contested matter. ➢ Do Not Prejudge the Outcome: Impartiality in a proceeding may be undermined by a decision- maker's bias or prejudgment toward a pending application. Decision-makers need to reserve judgment until after all the evidence has been reviewed. 14
Chapter 64.40 RCW (1982) A property owner has the right to damages for: A.Arbitrary, capricious, unlawful acts or those which exceed lawful authority. B. Failure to act within the time limits established by law. 15
VIOLATIONS CAN GIVE RISE TO SIGNIFICANT LOCAL LIABILITY A.Westmark Development Corporation v. Burien , 140 Wn. App. 540 (2007) $10.7 million judgment B. Maytown Sand & Gravel, LLC v. Thurston County , 198 Wn. App. 560 (2017) $12 million judgment 16
Recommended Process for Closed Record Review 17
1. Mayor opens the proceeding and asks council to reveal any potential conflicts or ex parte communications a) Council makes record of contacts b) Mayor asks if “there are any objections to the participation of any council members.” 2. Staff Report 3. Presentation by the applicant (20 minutes total, may reserve opportunity for response) 4. Statements from Parties of Record based on the record before the hearing examiner (3-5 minutes each) 18
5. Brief response by the Applicant/Counsel to Parties of Record and close (from time reserved) 6. City Council questions to the staff and parties (responses limited to the record before the hearing examiner) 7. City Council deliberation 8. Motion, vote and direction to staff to prepare written findings and conclusions 19
QUESTIONS ? 20
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