Members’ change of hats inevitably confusing

By Angela Day

Our elected county officials have the unenviable and unusual task of playing two roles in local democratic processes.

On one hand, Snohomish County Council members act as legislators, creating land use policies that balance and maximize economic, environmental and community interests countywide. On the other hand, they must also act as judges, hearing and ruling on appeals related to specific land use applications. This dual role often creates confusion among citizens and unfair expectations of elected officials.

As Americans, we learn from an early age that our Constitution sets forth a system of governance based on separation of powers and checks and balances between the executive, legislative and judicial branches. Given the powers granted in the Constitution, the legislative branch usually relies upon majority opinions to create policies.

Yet the judicial branch plays a much different constitutional role. It resolves specific disputes based upon the laws or code in place at the time a case is brought forward. In that sense, the judicial branch acts as a brake on majority rule, ensuring that certain statutory or property rights are upheld, even if unpopular.

It is clear, then, that these two branches of government serve very different functions in our democracy. Yet in Snohomish County, the responsibility of legislating and judging is assigned to a single government body. Our council members pass legislation in the form of land-use ordinances. They are often expected to then switch hats and perform a quasi-judicial role, interpreting and applying those policies on specific land-use applications.

It is not easy for citizen observers to recognize the difference between these two roles. Because the act of switching hats is subtle, citizens often become confused about when it is appropriate to contact an elected official off the record. In turn, elected council members may misjudge the boundary between a discussion with a constituent about a policy matter and an individual case. Asking council members to play this dual role is simply unfair to applicants, appellants and council members.

Switching hats between legislator and judge also creates confusion about how to evaluate a council member’s job performance. In their judicial role, council members must make decisions based on law, precedent and legal advice from the county’s attorney. Thus, it is difficult for citizens to make judgments about council members’ case-specific decisions since we do not have full knowledge of the law or the content of those client-privileged conversations.

Rather than evaluating our council members’ performance based on case-specific decisions, which are often prominent in the papers, we should instead look to their policy decisions, which often receive much less media and public attention. Two cases come to mind as examples.

First, rural cluster development applications in the Lake Goodwin area aroused considerable concern among local residents about the potential impacts on traffic, open space, rural character and groundwater.

Second, multiple applications for AM radio towers in the Snohomish Valley prompted concerns over potential impacts to human health, wildlife and the natural character of an idyllic agricultural valley.

In both cases, the County Council, in its judicial role, ruled in favor of developers, much to the chagrin of opposing citizens and nonprofit organizations. As a participant in one of these cases, I was also disappointed at the outcome of these appeals, but understood the judicial role that council members were required to play — in a sense, which hat they were wearing.

Since then, the council in its legislative role has directed staff to identify additional tools for considering the cumulative impacts of rural cluster applications and other subdivisions. More recently, the council unanimously passed an amendment to the Shoreline Management Update which prohibits construction of new AM towers in the shoreline jurisdiction, including farmland in the 100-year floodplain. As legislators, they have taken important steps to respond to concerns raised by a majority of citizens, and to create legislation that strikes a new balance between economic, environmental and community interests.

I believe it is time to separate the legislative and judicial roles in our county and other local jurisdictions. Shifting the judicial role to the courts would add additional time, expense and uncertainty to the land-use decision making process, but we could follow the lead of other states and develop a special forum for adjudicating land use disputes appeals.

In the meantime, we must recognize the dual roles that council members fill, and focus our critiques and energies on the legislative process and outcomes.

Angela Day is a doctoral candidate in the Department of Political Science at the University of Washington. She serves on the Snohomish County Planning Commission, and recently served as chair of the Land Use Working Group.