Sequim council passes ordinance to keep MAT appeal with hearing examiner

City council could hear appeals depending on decision timeline

SEQUIM — The Sequim City Council has voted 5-1 to amend the city’s code in light of a hearing examiner’s comments concerning the process for the Jamestown S’Klallam’s application to build a medication-assisted clinic on South Ninth Avenue to treat opioid abuse disorder.

The council first voted during Saturday’s special meeting on an emergency version of the ordinance to change the code and then, when that failed, on a regular ordinance.

Mayor William Armacost voted against both versions, while council member Sarah Kincaid abstained on the emergency proposal, saying she did not think it was an emergency, instead of voting no on it.

The emergency version needed five votes for passage.

How the change impacts the Jamestown S’Klallam Tribe’s proposed medication-assisted treatment (MAT) clinic application depends on when it goes through regulatory channels. That depends on the timing of Hearing Examiner Phil Olbrechts’ final decision.

Olbrechts sent an email Sept. 20 saying he does “not have jurisdiction over consolidated permit hearings that include a (SEPA) appeal” for the application. The decision is not final until Olbrechts issues a temporary interlocutory order.

The council on Saturday voted to revise portions of the Sequim Municipal Code to direct all appeals of Type A-1 and A-2 administrative permit decisions to a hearing examiner.

Appeals to those decisions would then go to Superior Court.

City attorney Kristina Nelson-Gross said the city sought to clarify discrepancies in the code (20.01.030(A) and 20.01.240) that have State Environmental Policy Act (SEPA) determination appeals going to the city council and the rest to a hearing examiner.

“There was internal conflict with the code that the hearing examiner is feeling concerned about,” Nelson-Gross said.

She said city staff disagree with the city-appointed hearing examiner’s opinion, but rather than argue, the ordinance was proposed to fix the code and make all A-1 and A-2 permit appeals go to a hearing examiner.

The ordinance will go into effect five days from publication in the Peninsula Daily News, tentatively set for Oct. 4.

Nelson-Gross said if the council “doesn’t want to hear the appeals, they should (pass the ordinance) under the emergency provision.”

Nelson-Gross said it constituted an emergency ordinance because once Olbrechts submits his decision, it would trigger the appeals process.

She said Oct. 5 or Oct. 6 may be too late, and the council may have to hear appeals instead of the hearing examiner.

Some appellants have testified that, under the Jamestown S’Klallam Tribe’s application, the classification process for appeals should be heard by the city council anyway. City staff has testified that the facility is similar to other clinics and medical buildings and is not classified differently and under staff review.

Barry Berezowsky, Sequim director of community development, approved the tribe’s application in May, and that led to the appeals process and hiring of Olbrechts.

Canceled hearing

Olbrechts canceled a three-day hearing for Sept. 28-30 to hear six appeals about the application, including its classification (city staff review versus city council review), the environmental Mitigated Determination of Nonsignificance (MDNS) SEPA review, and the application as a whole.

Olbrechts said in the email a “reviewing court would very likely overturn my final decision and remand the appeal back to the city council to do the entire process over again.”

Berezowsky said Saturday night the city was required to bundle all of its appeals as one for Olbrechts to hear.

“It’s all or nothing,” he said.

Deputy Mayor Tom Ferrell said Olbrechts’ email was a “curveball” for him, but he still felt a hearing examiner review is the best way to continue.

“I think there is a lot of bias and anger in our community, and this is the most effective way,” he said.

Ferrell also wanted to be fair to the tribe and have the process completed in “a reasonable amount of time.”

He said, “I don’t want to use this as a curveball to bring it back to council.”

Armacost said he voted earlier this year for the council to send appeals to Olbrechts at the late council member Ted Miller’s recommendation, saying the hearing examiner was exceptional.

By voting against the emergency ordinance, Armacost said he “thinks we (councilors) are being anxious” and that he’d like to learn from Olbrechts the legal reasons why he can’t hear the appeal.

“I’d like to hear what he has to say,” Armacost said.

If the process does come back to the city council, Armacost said, they have the experience and business backgrounds to handle it.

Potential

Nelson-Gross said Olbrechts will likely remand the appeals decision back to the city council if his decision comes in before the ordinance changes goes through.

If MAT appeals were to revert to the city council, city staff estimates additional costs of $42,000 to $100,000 would be needed for an outside attorney to consult the council on land use prior to the hearing.

Olbrechts had scheduled three full days to hear appeals, and Nelson-Gross anticipates it would take the council longer, possibly seven days, because of a lack of experience with land use decisions.

In their staff notes for Saturday, city staff wrote, “financial damages that result from any missteps could result in additional, significant costs that may not be covered by our risk pool.”

Nelson-Gross said that, in appearance of fairness, if appeals do go to the councilors, they must reveal every contact they’ve had regarding the application, i.e. emails, phone calls, conversations, etc.

She said there isn’t any distrust between staff and councilors regarding this, but “due to the sheer volume” of contacts, there’s a chance for missing a contact.

“That’s cause for significant concern for staff for city liability and personal liability for council,” she said.

________

Matthew Nash is a reporter with the Olympic Peninsula News Group, which is composed of Sound Publishing newspapers Peninsula Daily News, Sequim Gazette and Forks Forum. Reach him at [email protected].

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