Vote allows Sequim City Council to hear some building appeals

Interim ordinance allowing hearing examiner to consider appeals to expire Sunday

SEQUIM — An interim ordinance related to potential city project appeals will expire on Sunday — sending some appeals to the Sequim City Council for a final decision rather than to a hearing examiner.

Council members voted 4-3 on July 26 to let the ordinance lapse, with Mayor William Armacost and council members Sarah Kincaid, Keith Larkin and Mike Pence in favor of reverting a portion of the Sequim Municipal Code to its state prior to Sept. 26, 2020.

The interim ordinance was passed by council members during the appeals process for the Jamestown S’Klallam Tribe’s medication-assisted treatment (MAT).

Phil Olbrechts, the city’s appointed hearing examiner, told stakeholders in the process he felt there was an error in the city’s Municipal Code that prevented him from hearing the tribe’s appeal for the city’s State Environmental Protection Act (SEPA) decision under the A-2 process, and any decision he made could be easily overturned in court.

This led city staff to conduct an emergency meeting on Sept. 26 for council to consider and pass the interim ordinance so a hearing examiner could consider all appeals under the A-1/A-2 processes.

After hearing testimony in late November 2020, Olbrechts ruled on the tribe’s appeal on Dec. 21, 2020, supporting conditions from an agreement between the tribe and City of Sequim — a decision that allowed for the tribe to build and operate the MAT facility.

In his decision, Olbrechts added a monitoring program for the facility.

A Land Use Petition Act (LUPA) appeal by Save Our Sequim (SOS) was dismissed by Judge Brent Basden in Clallam County Superior Court in February of this year after he concluded the group did not have standing to file the petition.

Barry Berezowsky, Sequim’s director of community development, said at the July 26 council meeting that under the A-1/A-2 processes, council members could be the decision-makers for appeals for an array of decisions such as building permits, shoreline exemptions, right-of-way permits and boundary lines adjustments.

Council members voted 4-3 on June 28 to not enact a permanent ordinance designating the hearing examiner as the administrative appeal body.

MAT application scrutinized

The decisions follow months of ongoing discussions over the MAT clinic where many residents testified and some council members said the public and the council were not allowed enough input in the clinic’s application approval process and that the council should be able to hear its appeals.

Armacost, who voted against the September interim ordinance, said at the June 28 meeting he felt the MAT’s application process was not transparent and that citizens “had absolutely no voice in the matter.”

Pence said then he preferred the ordinance expired because he didn’t want to “relinquish council’s control.”

Deputy Mayor Tom Ferrell reiterated his stance on July 26 to retain the hearing examiner’s role, saying, “I just want the most objective person looking at these decisions, which quite often is not city council because they are too attached.”

Ferrell added, “We’re saving ourselves a whole lot of trouble and mess.”

Options

Berezowsky said on July 26 that a hearing examiner could be used to advise council for decisions, but city attorney Kristina Nelson-Gross said she consulted other city attorneys and they weren’t aware of any jurisdictions doing that.

She said doing so could be costly, and with council being the decision-makers they would still be subject to all quasi-judicial rules such as not being able to speak to constituents about their concerns of the appealed project/issue.

When asked by Kincaid if the city could hire a hearing examiner on a case-by-case basis, Nelson-Gross said yes; however, she noted, the city could face potential lawsuits.

For example, she said, an appellant for a sign permit could feel the city is treating them differently from others who may have had a decision by a city-appointed hearing examiner or the city council, and could be considered in court as arbitrary and capricious decision-making.

“If the city council wants to keep something in its discretion then you need to keep all of (the appeals of that type),” she said.

In a phone interview, Berezowsky said letting the ordinance expire does not impact the MAT clinic being built on South Ninth Avenue.

Armacost and Pence said previously the council could always choose to enact a hearing examiner again, if needed.

In June, city council member asked if city staff could better alert them to potentially controversial projects like the MAT clinic.

Berezowsky said in the interview that city staff are working internally on how to better inform the council and community of potential projects.

He said that could come in the form of a one- or two-page monthly summary that doesn’t share proprietary and/or confidential information.

Berezowsky said there is some gray area because some planned projects may never happen or change significantly before they come to fruition.

For information about current projects with applications in the City of Sequim, visit sequimwa.gov/471/Current-Projects.

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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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