BEFORE THE SKAMANIA COUNTY HEARING EXAMINER

Transcription

1 BEFORE THE SKAMANIA COUNTY HEARING EXAMINER In the Matter of the Applications of ) NO. CMP-13-02/REZ ) Pope Resources ) ) Pope Resources ) Swift Sub Area Comprehensive Plan ) Map Amendment and Rezone For a ) Comprehensive Plan Map Amendment ) ORDER REOPENING RECORD and Rezone ) Procedural Background The Applicant requested a comprehensive plan map amendment and rezone for multiple tax parcels in the Swift Subarea. The applications would change the designations for approximately 10,961 acres north of Swift Reservoir from Swift Commercial Resource Lands 40 (SW-CRL40) to Swift Forest Lands 20 (SW-FL20) and change the designations of approximately 2,957 acres south of Swift Reservoir from Swift Commercial Resource Lands 40 (SW-CRL40) to Swift Mountain Recreational 20 (SW-MR20). 1 The above-captioned applications were heard simultaneously by the Skamania County Hearing Examiner on June 4, 2014 after notice was published and mailed in February and May 2014, consistent with County Code requirements. At the opening of the proceedings, the Hearing Examiner announced that the outcome would be a recommendation to the County Commissioners for final decisions on both applications. Planning Staff indicated that they had anticipated that the outcome of the hearing would be a final decision by the Hearing Examiner on both applications. The County was not represented by legal counsel at the time of the hearing to provide direction on the question of scope of the Examiner's jurisdiction. At the June 4th hearing, testimony and evidence were admitted in the record from the parties and many members of the public present in relation to the two applications and the hearing was adjourned. At the conclusion of the proceedings, the record was held open through June 12, 2014 to allow members of the public in attendance to respond to items the Applicant submitted at hearing; the Applicant was given until June 19, 2014 to respond to comments from members of the public offered at hearing and during the post-hearing public comment period. The decision due date was established as June 30, However, on Monday June 16, the Applicant representative notified the Office of the Hearing Examiner that a public meeting was scheduled 1 Affected tax parcel numbers include: ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; See Exhibit 1, Staff Report to the Hearing Examiner. Skamania County Hearing Examiner page 1 of 5

2 to be held on Thursday June 19 and requested an extension for final Applicant comments through Monday June 23, This requested extension of the Applicant's final submittal deadline was granted. However, during deliberation after the close of the record, the question arose whether the Skamania County Code can legally delegate authority over causes of action restricted to the purview of legislative bodies, and therefore whether the Examiner has jurisdiction to issue decisions in the pending applications. Pursuant to the authority conferred on the Examiner in Skamania County Code (SCC) , the record in the above-captioned applications is reopened to require further information from the County as to the legal scope of the Examiner's authority to decide comprehensive plan map amendments and zoning map amendments that necessitate a comprehensive plan amendment, consistent with the order below. Discussion Existing County Authority The Skamania County Code delegates authority to the County's Hearing Examiner to hear and issue final decisions in both "quasi-judicial (individual) rezone requests" and "quasi-judicial (individual) Comprehensive Plan or Subarea Plan amendment requests". SCC A.5 and A.6. Pursuant to the Skamania County Comprehensive Plan (page 16), the comprehensive plan amendment cycle and review process is as follows: 1. All comprehensive plan amendment applications must be completed by the applicant (signed by the applicant and property owners) and submitted to the Planning Division of the Community Development Department on or before December 3st of each calendar year. 2. The comprehensive plan amendments will then be placed on the Hearing Examiner s schedule for public hearing at either the following April (east county), May (mid county), or June (west county) meeting. 3. The Planning Division will provide written analysis of each plan amendment to the Hearing Examiner for review. 4. The Hearing Examiner will then hold at least one public hearing to consider and act upon the original application. Pursuant to SCC , zoning map amendments are placed on the Hearing Examiner s calendar for public hearing according to an established schedule. SCC establishes the Hearing Examiner hearing process on petitions for zoning map amendments, specifying that the Examiner shall hold at least one public hearing on all proposed zoning map amendments and decide whether the zoning map amendment should be approved or denied. Skamania County Hearing Examiner page 2 of 5

3 As established in statute and case law, the Hearing Examiner is a creature of the legislature, having only the authority conferred either expressly or by necessary implication. Chaussee v. Snohomish County Council, 38 Wn. App. 630, 636 (1984); See RCW (1). 2 Contradictory Statute, Case Law, and Other Authority The Growth Management Act discusses the need for "legislative action" when amending Comprehensive Plans. RCW 36.70A.130 (1)(a). Legislative action is described as "the adoption of a resolution or ordinance following notice and a public hearing indicating at a minimum, a finding that a review and evaluation has occurred and identifying the revisions made, or that a revision was not needed and the reasons therefor." RCW 36.70A.130(1)(b). The statutory notice provisions governing comprehensive plan amendments speak to "the legislative body for a county" choosing "to consider a change to an amendment to a comprehensive plan or development regulation". RCW 36.70A.035(2)(a). Washington Courts have held that the Growth Management Hearings Board (GMHB) has exclusive jurisdiction to review petitions alleging a county did not comply with the GMA in adopting or amending its comprehensive plan or development regulations. Kittitas County v. Kittitas County Conservation, 176 Wn.App. 38, 49 (2013), citing Somers v. Snohomish County, 105 Wash.App. 937, 945 (2001). The GMHB "do[es] not have jurisdiction to decide challenges to site-specific land use decisions because [those] decisions do not qualify as comprehensive plans or development regulations.... Instead, the superior court has exclusive jurisdiction under LUPA to review site-specific land use decisions not subject to review by quasi-judicial agencies like the hearings board." Kittitas County v. Kittitas County Conservation, at 49-50, citing Woods v. Kittitas County, 162 Wash.2d 597, 610, 174 P.3d 25 (2007); see RCW 36.70C.030(1)(a)(ii). Several GMHB cases have concluded that a legislative body cannot delegate decision-making authority to an advisory body (see, e.g. Twin Falls, Case ; Snoqualmie ), that it is the elected officials who decide the cases that come before the Board (Poulsbo ), and that regulations must be adopted via binding legislative enactment (FOTL ). Specifically regarding rezones, RCW 36.70A.130(1)(d) requires any amendment of or revision to development regulations to be consistent with and implement the comprehensive plan. Washington courts have held that "a site-specific rezone is a project permit approval under LUPA if it is authorized by a then-existing comprehensive plan and, by contrast, is an amendment to a development regulation under the GMA if it implements a comprehensive plan amendment." Kittitas County v. Kittitas County Conservation, at Pursuant to RCW (1),... the county legislative authority may adopt a hearing examiner system under which a hearing examiner.. may hear and issue decisions on proposals for plat approval and for amendments to the zoning ordinance when the amendment which is applied for is not of general applicability. In addition, the legislative authority may vest in a hearing examiner the power to hear and decide those issues it believes should be reviewed and decided by a hearing examiner, including but not limited to: (a) Applications for conditional uses, variances, shoreline permits, or any other class of applications for or pertaining to development of land or land use; (b) Appeals of administrative decisions or determinations; and (c) Appeals of administrative decisions or determinations pursuant to chapter 43.21C RCW. (emphasis added) Skamania County Hearing Examiner page 3 of 5

4 No decision issued by the County Hearing Examiner is reviewable by the Growth Management Hearings Board. All hearing examiner decisions are quasi-judicial land use actions appealable to the Shorelines Hearings Board/Department of Ecology (for permits issues pursuant to the Shoreline Management Act), to the Gorge Commission (for National Scenic Area decisions), or to Superior Court (for any other type of decision). SCC ; RCW ; RCW 36.70C.030. Current Posture of the Instant Applications The fact finding hearing has been conducted in both of the above applications, but the Hearing Examiner is not confident in having the authority to issue the final County decisions in either a comprehensive plan map amendment or a rezone that requires a comprehensive plan map amendment for nearly 14,000 acres. The Examiner is not aware of any authority the prohibits a quasi-judicial decision maker (the examiner) from conducting the fact finding hearing and issuing a recommendation to the legislative body for final decision on comprehensive plan map amendments or rezones that require comprehensive plan map amendments. The Examiner is prepared to issue findings and recommendations in these applications. However, the County Code requires a decision and does not expressly authorize the Examiner to issue a recommendation on the two types of decisions at issue. Order 1. The decision timeline for the above-captioned applications is stayed pending the submittal of advisory information from the County Prosecuting Attorney's Office. 2. The Examiner requests that the County Prosecuting Attorney's Office communicate directly with the County legislative body to obtain direction. For the purpose of expediting timely disposition of the matters already heard, the Examiner notes that express authority to issue a recommendation on comprehensive plan map amendments and accompanying rezones could be conferred on the Examiner by emergency legislation. Alternatively, the legislative body could expressly direct that the Examiner has authority to issue recommendations on the two application types in question by operation of "necessary implication", as stated in Chaussee, above, or address the Examiner's scope of authority by any other action it deems appropriate. 3. In addition to (or in place of) direction from the County legislative body, the County Prosecuting Attorney's Office shall submit a memorandum of authority confirming the County's position on the scope of Hearing Examiner authority to issue decisions and/or recommendations on the types of applications in question. 4. The record in the above-captioned applications is held open for the items listed in numbers 2 and 3 above, and for no other information. The record will close on the date both items are received. For the purpose of expediting disposition of these two applications, the Examiner requests that all items be submitted by June 25, 2014 if possible, or as soon as possible thereafter. Skamania County Hearing Examiner page 4 of 5

5 5. The decision will issue within five business days of the submittal of items in response to numbers 2 and 3 above, or on June 30, 2014, whichever is later. Ordered June 18, By: Sharon A. Rice Skamania County Hearing Examiner Skamania County Hearing Examiner page 5 of 5