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06/21/2006: "CC Wants To Hear All HE Appeals"

(Deputy Prosecutor Karen Vedder addresses the Council)

Depending on the view point of the observer, the CC (County Council)on Tuesday was still in serious denial as to what their role is under the Charter, or they are continuing to implement it in a manner consistent with the Charter.

The subject has to do with the role of the CC in hearing examiner appeals. They can hear them if they wish, but only under certain conditions, and within certain limits. The conditions the CC can set, the limits are imposed by the Charter.

The issue before the Council was a draft policy on Hearing Examiner Appeals. The Charter states that "decisions of the hearing examiner are not subject to administrative review" , that is, the County Council cannot second guess the HE (Hearing Examiner) rulings unless the Council has consulted with the Prosecuting Attorney and passed an ordinance that contains procedures that do allow for a review of HE decisions.

All well and good, but the Freeholders had included a few "procedures" of their own that limited the extent to which the Council could accept appeals. The Freeholders included language so that "an appellant may choose to bypass review" by the County Council: that is, for those who preferred to have the appeal heard by the Superior Court without first having to appear before the County Council, are allowed under the Charter to do so.

But as the Council reviewed their options, they asked the question: "What happens when there are more than one person involved in an appeal?" , and "Does a decision to bypass the Council mean that everyone must go to Court" ? Yes, said Deputy Prosecutor Karen Vedder. But a late arriving email to Councilman Ranker raised a question of what the implications might be for abuse of the system if "one" can force "all" to bypass the Council and go directly to court.


Prior to the Charter, the BOCC (Board of County Commissioners) routinely heard appeals from applicants and citizens unhappy with a decision received by an applicant. In some cases they returned the decision back to the HE for further specific review, or denied the appeal, or less frequently, overturned the decision. If the BOCC upheld or denied the appeal, it was then possible for the unhappy appellant to appeal to Superior Court.

The new County Council made it clear early on that they wished to retain the right to hear appeals, and opted to produce "written procedures" that under the Charter would allow them to continue to hear appeals. In writing the procedures, the Council had to decide what aspects of an application they could consider in an appeal. As is frequently the case, Councilman Ranker prepared a draft set of procedures, and he and the Council agreed that they would hire former Planning Director Laura Arnold to work with the Prosecutors office on cleaning up the draft to reflect the input from the full Council.

Toward the end of the discussion of the returned draft on Tuesday, when in response to continued rephrasing of the question by Ranker of why the Council should be able to hear all appeals without letting one person decide that the appeal would bypass the Council and go to Court, Vedder said that she had given the Council her legal opinion. Kevin Ranker then handed her an email he had just received from an attorney, that Ranker said disagreed with her legal opinion. Vedder, who had no knowledge of the content of the email, told Ranker as she took a copy of the email that "You said this morning (to County Administrator David Goldsmith) that you do not like to be sandbagged…neither do I" .

The email raised the possibility that even if an applicant was willing to accept a HE decision, they may still decide to file an appeal directly to Superior Court if they believe "that neighbors or an organization are going to file an appeal to the Council" . In effect this would result in the applicant becoming an "appellant", that is, the happy applicant would contest the approval of his own application because "Under the draft Ordinance the Superior Court appeal would preempt another appellant's appeal to the Council and require its dismissal"!

The email went on to give an example of what could happen in such a case: "the draft (ordinance) allows one appellant to manipulate the system by allowing "an" appellant to make the bypass choice for "all" appellants – which is NOT what the Charter requires. If the language in the draft is adopted, then a savvy party (represented by an attorney) will always be able to prevent other persons from appealing to the Council…", and not only that, but at the end of the day when time was running out to file any further actions, the applicant could simply decide to withdraw their appeal from the Court; and that would be the end of the process for all. And of course this could cut both ways. Since a "neighbor" or an "organization" could also do the same thing to our happy applicant.

At one point Laura Arnold was asked her opinion on allowing "one appellant to decide for all" that an appeal would bypass the Council and be taken directly to Court. After a pause, Arnold said that she did not think the Freeholders contemplated that there might be more than one appellant in an appeal.

The prosecutor's legal advice did not go without questioning by the Council, who continued on Tuesday to come at the question from numerous angles, but still received the same answer from Vetter. In response to statements of how the Council viewed what their role should be, Vetter said she was not there to give policy advice, only legal opinion.

Chairman Lichter ended the discussion by telling Vetter that it seemed clear from comments made by members of the Council that "ultimately it is a policy decision for us to make" . But is it? Both Ranker and Vetter opined that it was possible for the Court to rule on the matter once, and if, an appeal is taken to Court and the bypass of the Council is challenged in Court on a procedure rules. In the meantime there is the question of how the Council can change a "policy" -as suggested by Lichter- that is already set by the Charter.

The charter states that only a CRC (Charter Review Commission) may amend the Charter, and so far there is no Commission, and the Charter states that "Five (5) years after adoption of this Charter and at least every ten (10) years thereafter, the Legislative Body shall cause an election of a CRC" So unless the Council can find away around this, or determine that it is not applicable, they may have to follow the legal advice of their Prosecutor, and accept the fact that they will sometimes be bypassed by an appeal. The Council agreed to take up the matter at a later date.