Tales From a Hearing Examiner
By Phil Olbrechts
Hearing Examiners are necessary in Washington State because local elected and appointed officials make terrible adjudicators in land use hearings. The pressure is simply too great to make bad, politically-motivated decisions—especially when those bad choices aren’t supposed to be choices at all.
As both a City Attorney and a Hearing Examiner for a couple dozen jurisdictions, I see examples of these choices gone awry all the time. As a case in point, in a City Council hearing held a few weeks ago, the Council had to take on the role of making a decision on a site-specific rezone application for an apartment complex—a decidedly adjudicative role. One of the City Councilmembers resided just two or three lots from the project site. That Councilmember had been vocal in his opposition to the project on numerous occasions, including when previously faced with a Council decision to swap some City property with the project site in a lot line adjustment. By all appearances he was making himself out to be the White Knight for his neighbors in preventing this multi-family intrusion into the tranquility of his single-family paradise.
At the rezone hearing, the Councilmember angrily announced that he’s been forced to recuse himself on advice of the City Attorney. Another councilmember lent her support and announced it’s purely the “White Knight’s” choice to step down or not. His choice? Sure, in the same sense that it was his choice to strip off his armor and under-armor to go streaking down Main Street, or to set the Council dais on fire. In short, there was an obvious choice about his participation.
In Washington State, the Councilmember would have been better off streaking or committing arson than participating in the rezone hearing. Washington courts take the adjudicative role of local agencies very seriously in land use decision making. To that end, they created the Appearance of Fairness Doctrine. Under that doctrine, if there’s any suggestion that a councilmember is biased or has a personal interest in the outcome of a land use permit hearing, the courts will toss the resulting decision and make the city do it right the next time. The proximity of the Councilperson’s residence to the multi-family project was sufficient to have the decision tossed, not to mention his prior chivalrous actions in protecting the sanctity of his neighborhood from multi-family intrusion.
Perhaps worse is the liability attached to such conduct. Under the tort of Intentional Interference with a Business Expectancy, it’s considered an “improper purpose” to deny projects for reasons of political or personal self-interest instead of objectively applying permitting criteria. It’s no surprise that the two biggest land use liability cases addressed by Washington’s appellate courts in the past fifteen years were based upon the Intentional Interference tort. In both cases a jury concluded that politics had more to do with permitting decisions than objective application of permitting criteria. One case was over a 216-unit apartment complex resulting in a $10.7 million dollar judgement, the other a gravel pit for a $12 million dollar judgement. This “White Knight’s” actions in trying to stop the project alongside his associations with his neighbors to that end could be compelling evidence to a jury that he was acting with improper purpose. It could have been a very costly chivalrous act.
The most interesting part of my City Council story is how little choice the Councilperson really had in recusing himself. If he had participated in the rezone decision and the Council had denied it, the Applicant would have appealed that decision faster than walking through a revolving door. The City’s insurance company would have taken one look at that case and told the City to do it again or it would not be covered. The Councilman would have been told to recuse himself the second time around or he would foot the bill for the City’s liability.
Thankfully, the “White Knight” recused himself and lived to fight another day. So, is there really a choice? I’d rather set the dais on fire, although COVID pounds would make me think twice about the streaking option. That’s why Washington State has hearing examiners.
For more information on Hearing Examiners, visit the Municipal Research and Services Center (MRSC) website entry on the topic, with relevant explanation and legal frameworks: https://mrsc.org/Home/Explore-Topics/Planning/Land-Use-Administration/Hearing-Examiner-System.aspx.
About the Author: Phil Olbrechts has practiced law in the State of Washington for over 32 years and currently serves as a Hearing Examiner in 19 different municipalities across the state.