What changes will a new hearing examiner bring?
Monday, November 17th, 2008I’m not sure whether Kitsap County’s new hearing examiner will mean a shift in the approach to land-use decisions or future outcomes. But circumstances surrounding two recent projects by the same developer caused me to take a closer look. See my story in Sunday’s Kitsap Sun.
Here are the basics: Reinout van Beynum, a Keyport employee and part-time developer, submitted separate applications for two projects in which he asserted his property rights with “reasonable use” claims. A “reasonable use exception” is used when no reasonable alternatives exist and it isn’t possible to meet environmental standards in the county’s Critical Areas Ordinance. In other words, to deny the application would deprive the owner of the right to use his property in a reasonable way.
They were almost never used until the past year or so, when I’ve seen several come through.
These two van Beynum projects were distinctly different, and nobody can say that a change in hearing examiner made the difference in the decision. Still, a previous hearing examiner, Terrence McCarthy, approved the reasonable use exception for the first property, while the new examiner, Kimberly Allen, denied the reasonable use exception for the second.
You may wish to review the finer points yourself. The rationale of the two hearing examiners is fairly well laid out in their written findings. As I said, the first case (PDF 680 kb) is substantially different from the second one (PDF 1.1 mb).
I’ve always wondered what it means when a hearing examiner agrees with nearly all the recommendations of county planners. Does it mean that the planners are on solid legal ground and that the hearing examiners have little choice but to follow suit? Or does it mean that any bias is the same for planners and hearing examiners, perhaps because they both work for the county commissioners? (I do not mean to impugn anyone on the county staff, because I can honestly say everyone I know there is a true professional. I’m only raising the question, since we are talking about human relationships, which are rarely perfect.)
When I talked to people involved in these recent cases, they saw a clear difference in the new hearing examiner’s approach. Van Beynum tended to think that Allen did not fully understand property rights, while the environmental folks were inclined to see a favorable shift in attitude.
Here’s how Illahee’s Jim Aho saw it: “She questions everything and wants to have a total understanding of the project so she can make an informed decision. She is a bright light. She probes and digs and wants to do the right thing. I haven’t seen that before.”



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