Commentary: County charter amendment takes council out of project appeals process

By Kristin Kelly

I want to thank the voters in County Council District 5 for electing me as one of your Snohomish County Charter Review commissioners. I have worked for more than 20 years for sustainable land use policies and regulations in Snohomish County for two non-profit organizations, which will protect our valuable farms and forests, water quality and wildlife habitat, and will ensure Snohomish County doesn’t experience unnecessary urban sprawl like Southern California.

I am recommending a yes vote on all seven proposals. But I know that Proposition 4, the proposition I introduced regarding the hearing examiner process and appeals may be harder to understand, so I want to explain the importance of adding this proposition to the County Charter.

Under our state’s Growth Management Act (GMA), land use comprehensive plan policies and development regulations that implement those policies is a legislative process. This means our County Council holds public hearings and considers all input before adopting changes. Everyone is able to be involved and talk to their county council members. Once policies and regulations are adopted, these are the “rules” that guide permitting of residential and commercial developments. Appeals of these types of land use decisions are appealed to the State Growth Management Hearings Board.

Then there is another process for project level development applications, such as rezones, large subdivisions or State Environmental Policy Act determinations, and that is through the county council-appointed hearing examiner. It is the job of the hearing examiner to determine if these types of development processes meet the policies and codes the County Council has adopted.

If the hearing examiner approves the developer’s application, an appeal can be filed with the examiner. Anyone who chooses to appeal finds out early that it is not cheap to do so. Appeals cost $500 to file. Citizens usually need to hire an attorney and experts, which also cost money. For most citizens or neighborhood groups an appeal is a huge financial burden.

Whoever wins or loses before the hearing examiner appeal process, currently the next step is to file an appeal with the County Council. The next appeal avenue after that is Superior Court.

Proposition 4 would eliminate the County Council appeal process, and all hearing examiner appeals of such things as development applications, rezones and related SEPA determinations would go directly to Superior Court.

When a development application appeal goes to County Council, our council members are no longer working for the people who voted them into office. They are now working in a “quasi-judicial” manner as a judge to determine if the hearing examiner made the right decision. Remember, the County Council hired the hearing examiner, and the same county attorneys who argued for the county’s planners to the examiner are now arguing that position to the County Council. Citizens who oppose the development application, rezone or SEPA determination are no longer able to talk with the County Council because this is not a legislative process. This confuses the public and puts everyone in a confrontational situation.

The County Council appeal process historically has offered no real benefit to citizens, but provides benefit to developers. The extra appeal process to the County Council is another step that helps whittle down what little money citizens and neighborhood groups can raise. Developers count on folks getting frustrated and giving up. From my experience, I’ve never seen the County Council overturn a hearing examiner decision, although they have sometimes tweaked a thing or two.

In my opinion, Superior Court should be the next step to appeal an examiner’s decision. Judges will be more objective and the chances of overturning a hearing examiner decision is much more likely at the Superior Court level if the case against a development application, rezone or SEPA determination is in fact a valid argument based on law. While Superior Court does cost money and time as well, leaving out the County Council appeal process will ultimately save people money and time and frustration.

I hope the voters will vote for Proposition 4. The other County Charter Review commissioners agreed it should be part of the County Charter because it will level the playing field on hearing examiner appeals.

Kristin Kelly was a County Charter Review commissioner for District 5. She lives in Snohomish.