Should Port Orchard Relinquish its Role in Hearing Land Use Appeals?

The Port Orchard City Council last week heard testimony on a contentious land use issue — should a Gig Harbor advertising company be allowed to put eight billboards within city limits?

The issue grew thorny after the city initially turned down the applications, submitted in batches last spring. James Weaver, director of development, took the most “stringent” interpretation of the city’s code, which is allowed and called for in another part of the code, he said. The billboard company owner appealed to the hearing examiner, and now the case has come before the council.

Like most cases that reach the appeal stage, there are a number of questions in play:
Did Weaver correctly interpret the code? (The city’s hearing examiner says so.)
Should the billboard company’s application be vested under old rules, even though the city has since passed an ordinance banning billboards? (The hearing examiner agrees with the owner here.)
And was the city’s ban on billboards a violation of constitutional rights? (The hearing examiner declined to rule on this question.)

During the hearing, the attorney representing the billboard owner questioned the council’s ability to rule on the case since none of them are attorneys. He railed against the process by which the city countered his appeal, bringing the matter to the council. He called the actions of City Attorney Greg Jacoby and attorney Jennifer Forbes, representing the city, “frivolous” and “in bad faith.” He said the process had gotten unnecessarily drawn out and was wasting taxpayers’ money.

“I see a lot of blank faces here,” William J. Crittenden told the council. “Do you think your money is being well spent?”

Before 2008, the council used to be the first stop (not the second) in hearings on land use issues. The change was made, in part, because of the tremendous amount of council time involved in preparing for and conducting the hearings. The city now uses a hearing examiner for preliminary review of land-use applications. Where open-record public hearings on such issues were formerly held before the city council, the open-record hearing is now held before the hearing examiner. If the hearing examiner’s ruling is challenged, the appeal moves to the city council.

In a work study meeting, Feb. 15, before the billboards hearing, Councilman Rob Putaansuu questioned whether the council should be involved at all, or whether the city should switch to a model as such the one adopted in 2010 by Kitsap County. Appeals that formerly came before the county’s board of commissioners now go directly to Superior Court.

Kitsap County Commissioner Steve Bauer proposed the change, because he said having the board hear appeals created confusion among the public. The board can only rule on whether the hearing examiner has erred. Their ruling does not necessarily reflect the position the board would have taken on a proposed project, Bauer said.

Hearing examiners generally are attorneys, and they are required to have extensive knowledge of land use codes. A city council or board of commissioners, on the other hand, oversees matters on a wide range of topics, meaning they are arguably less well-equipped to navigate the labyrinth of motions, counter-motions, arguments and counter-arguments that make up the appeal process.

Putaansuu suggested as much, and he reminded the council that, although they’ve only heard one other matter since going to the new system, it, too, turned nasty. A proposed birthing center was turned down by the hearing examiner over neighbors’ concerns about traffic (a needed re-zone was denied). The council initially backed the hearing examiner’s decision. They agreed to revisit the proposal, however, as part of a legal settlement with the owners of the center, who took their case to Superior Court and threatened to challenge the city’s comprehensive plan before the Central Puget Sound Growth Management Hearings Board. The city ultimately approved the center.

Jacoby told the council that cities vary in their methods for hearing appeals. Appeals in Gig Harbor and Fife go straight to Superior Court. The Poulsbo City Council, like Port Orchard, hears appeals.

“It’s sort of an issue of how much control the council wants to have over the process,” Jacoby said. “There’s no right answer, but we can certainly change it.”

The council could appeal any ruling of the superior court with which they disagree, Jacoby said.

Most of the council said they would support a resolution switching the process up. Councilman John Clauson said he could go either way.

As for Crittenden’s criticism of the process, the council sat in shock as he bad-mouthed the city up one side and down the other, particularly Jacoby.

“I’ve been treated like crap by your city attorney for six months,” Crittenden said.

Mayor Lary Coppola challenged Crittenden’s “rudeness.” “He’s acting like a spoiled child,” said the mayor.

Shortly afterward, Coppola banged his gavel and cut short Crittenden’s testimony. “That’s over. We’re done,” Coppola said angrily.

When Crittenden continued his tirade, Coppola got up and walked out of the hearing. (The mayor does not rule on an appeal, only the council, so his absence did not delay proceedings.) He later said he felt he had to excuse himself in order not to say something inappropriate to Crittenden.

Councilwoman Carolyn Powers, later in the hearing, advised Crittenden that he would present a more convincing argument “if you would spend your time talking about the particular questions that are pertinent to this whole case as opposed to talking about our counselors spending a lot of money and time … Can you do that?”

“If my anger has spilled over on you, I apologize,” said Crittenden, who remained angry with Jacoby, Forbes and the process in general.

If nothing else, I guess, the change in procedure would spare the council similar tongue-lashings in the future.

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