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MRSC has joined with Phil Olbrechts, Attorney, Ogden Murphy Wallace, Mark Hinshaw, Director of Urban Design, LMN Architects, and Pat Dugan, Dugan Consulting Services, to bring you the "Planning Advisor" article series on planning and growth management issue affecting Washington Local Governments. The "Planning Advisor" will feature a new article each month with timely information and advice you can use.*
Land Use Hamlet: Hearing or not a Hearing?
March 2007
By Phil Olbrechts, Attorney
Ogden Murphy Wallace
Fooled you. This is not an article about whether you should hold a public hearing. It’s about whether you already held one. Believe it or not, that’s not entirely clear. Cities and counties all over the state may be unwittingly violating the one hearing rule of the Regulatory Reform Act by holding workshops and other meetings that they never thought qualified as hearings. The Regulatory Reform Act, Chapter 36.70B RCW, generally only allows cities and counties to hold one hearing on a development project.
Just for fun on my first submission to the Planning Advisor, I’m going to take a position on the one hearing rule that’s succeeded in making some people mad. I’m going to elaborate upon a position I presented at a legal seminar that set off a gaggle of surly representatives from an anonymous county in south Puget Sound. Specifically, I’m going to advise that it arguably violates the one hearing rule if a county or city submits the testimony and documents presented at a public workshop or any other public meeting into the public hearing of a land use permit. Yes, there may be one or two people, or everyone else, who disagree with me. Yes, this interpretation does serve to diminish the efforts of municipalities to enhance public participation. No, this is not a trivial issue. It exposes some fundamental conflicts inherent in the legislature’s efforts to both require effective public participation and an efficient permitting system.
The anonymous county in south Puget Sound places an admirable premium on public participation. When a developer bursts onto the scene with a major development proposal, the county doesn’t stop at holding one public hearing in front of its hearing examiner in the bowels of its administrative campus. The county takes the project to the streets and holds workshops in the affected areas, giving citizens the opportunity to drive a few blocks from their homes to their local community center or other meeting space to learn of the project and voice their concerns. Then, to make sure that no one’s comments are uttered in vain, the county tapes all the testimony and forwards it to the hearing examiner for the public hearing on the project. Now people such as myself come along and decree these noble efforts violate the Regulatory Reform Act. What’s going on here?
The legal problems arise from the one hearing rule of the Regulatory Reform Act. As many readers already know, the legislature adopted the Regulatory Reform Act in 1995 in order to remove duplication and confusion from the land use permitting process. One of the more earth-shattering requirements is that cities and counties may only subject development projects to one “open record hearing”. This created a major change in practice for counties and cities, who sometimes would hold one separate hearing for each of several permits for a development project and on top of that would hold separate hearings amongst different decision-makers in the decision making hierarchy. A church on a shoreline for example, could trigger two public hearings in front of a planning commission for a conditional use and shoreline permit, and the City Council in turn would hold an additional hearing to consider the recommendations of the planning commission. The Regulatory Reform Act now only permits one public hearing. Most jurisdictions in the church scenario in the post Regulatory Reform era now hold one public hearing on both permit applications in front of the planning commission and the City Council considers the planning commission recommendation without holding a hearing of its own.
Given the one public hearing rule of the Regulatory Reform Act, what led the noble county from south Puget Sound to believe that it could take public testimony in public workshops in addition to a public hearing in front of the Examiner? The legal position of the county arises from some of the most baffling language hiding in this state’s land use statutes. The Regulatory Reform Act requires local ordinances to only allow one public hearing for land use projects, but places no limitations on the number of public meetings held on a project. If your workshop qualifies as a meeting, you can hold as many workshops as you want. To make it easy for us, the legislature even defines both an open public hearing and a public meeting. A meeting is defined as “an informal meeting, hearing, workshop, or other public gathering of people to obtain comments from the public …” Sounds like a slam dunk for the noble county. The county is just holding a workshop to gather public testimony. This fits squarely into the definition of a public meeting.
Before you start wondering what kind of idiot could conclude that a workshop doesn’t qualify for the meeting definition, think about what separates a meeting from a hearing. If a meeting is a place to gather public testimony, then what in the world is a public hearing? The Regulatory Reform Act defines an open public hearing as a hearing “that creates the local government’s record through testimony and submission of evidence and information…” For those of you who have yet to experience the joy of defending a land use decision in court, the “record” of a land use decision is everything. When a court reviews the validity of a land use decision, with a few narrow exceptions it will only consider the evidence of the record for the permit, which is composed of a transcript of the hearing and any documents (exhibits) admitted into the hearing. If public testimony is provided outside of the record (like at a workshop), it is not part of the administrative record and legally speaking has no relevance on the validity of a permit.
So the primary difference between a hearing and a meeting is that the hearing is the source of evidence used to support a decision while a meeting is not (the meeting definition even goes so far to say that “a public meeting does not include an open public hearing”). This is where the noble county gets itself into trouble. It can take all the public testimony it wants at public workshops, but once it takes the testimony verbatim and introduces it into the administrative record before its hearing examiner, there’s nothing to distinguish the workshop from an open record hearing. The way the noble county works it, the public testimony from the workshop can be used to defend (or oppose) the examiner’s land use decision in court, so by definition the testimony (and hence the meeting) is part of the “local government’s record.”
This problem isn’t just legal smoke and mirrors. As noted previously, a purpose of the Regulatory Reform Act is to avoid confusion and duplication in the hearing process. The legislature wants applicants and concerned citizens to know that there’s only one public hearing they need to track in order to ensure that their concerns get addressed. This concept is undermined when transcripts and exhibits of other proceedings get entered into the record of the final hearing. When this happens, testimony is of equal significance once again at multiple hearings and the applicant once again has to be fully prepared to defend itself at each one.
I have to concede, though, that there are no court opinions yet on this issue and the counter-arguments could very well persuade a sympathetic judge who favors public participation. The pornography argument isn’t half bad -- you know a public hearing when you see it. As I mentioned before, one of the defining characteristics of the hearing that creates the record is that it contains all the evidence that will be used to justify a decision. A workshop, for example, only creates a partial record (since more evidence is yet to come in the final hearing) and no one would consider it “the” hearing on the application. Theoretically, even if the noble county enters all the evidence of every workshop it holds into the examiner’s hearing, the applicant and concerned citizens really only do need to track one hearing, the examiner’s, because they’ll have the opportunity to review all the information that creates the record at the examiner’s hearing and respond to it. The only problem with this interpretation is that it opens the door for cities and counties to hold as many hearings as they wish. So long as they enter the transcripts and exhibits of all prior hearings into the record of the last hearing, they’re covered. Kind of renders the whole one hearing rule pointless, don’t you think?
If all this doesn’t give you a headache, let me try something else. If entering the transcript and exhibits of a public workshop into a hearing transform the workshop into a hearing, what about a summary of the evidence? The Regulatory Reform Act expressly recognizes that meetings may be held by advisory bodies such as design review boards. These advisory boards will make recommendations to the decision-maker holding a public hearing. The recommendation, if it has any value whatsoever, will have to identify the evidence used to support the recommendation, which of course will often include testimony. So at what level of detail does the evidence identified in a recommendation rise to the level of a transcript or recording that would violate the Regulatory Reform Act? There’s room for playing games here. I would say just summarize the testimony that had relevance to the review criteria and leave the rest alone. As far as exhibits go, don’t be bashful about forwarding any documents that are relevant to the recommendation, but leave the rest out. Your city attorney or county prosecutor may think differently and say go ahead and forward the transcript and all documents and ask: who gave you the whacky idea that there’s a problem? Maybe your legal advisor will try something clever like submitting the transcript but leaving out some documents (so there’s only a partial record of the prior meeting -- good luck with that one). That’s the fun of land use law. Everyone has a different opinion.
Mark Hinshaw has over 32 years experience as an architect, city planner, and urban designer. He has provided urban design and community planning services to local governments, prepared master plans for public facilities, developed design guidelines and streetscape improvements for public agencies, and created comprehensive commercial district plans.
Pat Dugan has a unique combination of experience in both planning and public finance, spanning 35 years. As a planner, he has been a planning director in two cities (Auburn and Burien), and two regional planning agencies in Oregon and Washington; and was a planning manager in Goleta, California. In public finance, Pat has served as the chief financial officer in four public agencies including the Cities of Auburn and Lynnwood, and the Snohomish County Public Works Department. He has written extensively on financing capital facility programs and on public finance for planners. Pat now offers planning and public finance consulting services and in his own firm, Dugan Consulting Services in Everett and can be reached at consult.dugan@verizon.net.
Phil Olbrechts is a member (similar to partner) and elected member of the board of directors of Ogden, Murphy, Wallace, LLC. Phil focuses his practice on land use law and currently represents seven municipalities as either City Attorney or Hearing Examiner. He has taught over a dozen credits of land use law at the University of Washington, has taught numerous land use continuing legal education courses and has made over 200 land use presentations to elected and appointed officials throughout Washington State. Phil has served on the Seattle Planning Commission and in the past served as the Planning Director for two municipalities.
*The Articles appearing in the "Planning Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.