08/17/2006: "Council To Decide Who May Bypass On Appeal"

When the Freeholders reviewed the duties and authority of the former Board of County Commissioners (BOCC), they decided that if someone believes they have been improperly denied an application by the Hearing Examiner, and as a result, wishes to file an appeal, they "may choose to bypass review by the Legislative Body and seek direct review with the court or other tribunal as provided by law".

Under the old BOCC rules, the unhappy applicant (the "appellant") had to first make his case to the BOCC, and then could go on to Court. Under the Charter, the appellant had the choice of going to the County Council (CC), or going to Court. This raised the question in the minds of some, including the CC, "What happens when there is more than one party involved?" Can one person exercise his right to bypass the CC by going to Court result in the forcing of others to be denied the right to have the case first heard by the CC? The answer from the Prosecuting Attorney's office was "Yes"

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There have been a number of instances when the CC was not very happy when they reviewed their authority under the Charter, only to find they were no longer allowed the power they had once possessed; and not being able to sit in judgment of the decisions of the Hearing Examiner -Their Hearing Examiner-, was clearly one of those instances.

All three Councilman have expressed their concern that their "local knowledge" made their opinion relevant to having the authority to uphold, or deny, an appeal of HE decisions. Knowledge that a Judge just may not posses. But that was, some of the freeholders told the Council, exactly one of the reasons the Freeholders decided to let someone bypass them; pointing out that some appellants may have concerns that a Council could decide an appeal not on a point of law, but on a point of view, of how things should be, and not on what the law allows,

The Council was not going to go gently into the night on this issue. They asked Prosecutor Randy Gaylord to research the issue, and see if there was some way around it. Gaylord came back with a small White Paper that laid out the various relevant laws that dealt with the "powers, duties and procedures of the hearing examiner", and a stated goal to "adopt procedures for the review of hearing examiner decisions that are consistent with the charter and state law."

Gaylord came up with a plan that was based on a portion of the very same exact language in the Charter that said an appellant could bypass the CC. At the end of that troublesome sentence (quoted above), it states "…as provided by law". Gaylord told the Council the solution to their problem was simple: The Council need only to follow the Charter demand that they adopt an ordinance that contains "procedures for the discretionary review of the decisions of the hearing examiner" and that those "rules" can allow the creation of a classification system for discretionary review A system that will effectively be a table of two columns, one will be a list of those HE decisions (Class "A") that will first go to the Council for review, and a second list (Class "B") that go directly to Court.

The Council liked the concept, and will have a public hearing on a classification list that will determine which appeals go to Court, and which go to the Council.

The draft list for Class A are those HE "Decisions that have the effect of approving, denying or rescinding an application for the following types of permits: Conditional Use; Shoreline; Variance; Subdivisions; Simple Land Divisions;" and the "Revision of alteration of any of the above types of permits."

The draft list for Class B (that go to Court) are "Decisions that have the effect of approving, denying or rescinding a permit: Shoreline enforcement; SEPA; Decision involving interpretations;" and "Revision or alteration of any of the above type of permits".

The Council was unable to decide where Clearing and grading permits should go, even after testimony from the Prosecuting Attorney and both the County Administrator and the Director of Community Development & Planning recommended that it should remain -as suggested by Gaylord- in Class B. The Council wanted to review that one as well, but agreed that additional information would be obtained and evaluated prior to making a decision.

A public hearing will be held on the proposed ordinance to receive public comment and recommendations.