Monday, February 7, 2011

Hearing Examiners - a summary

Last week I did a write up on Park and Blue Canyon and noted a Hearing Examiner ruling on zoning at the old Park Store. I have in mind writing up a hearing examiner determination or two because hearing examiner determinations can have an impact on how our landscape looks and provides insight into the county rules that influence the Washington State landscape.

Hearing Examiners make land use determinations throughout Washington State on county land use issues. Their level of responsibility varies a bit from county to county, but the underlying purpose of hearing examiners is to remove elected county council or county commissioners from legal determinations regarding development code issues. Or put in another way, the purpose of having a hearing examiner is to get the politics out of land use determinations. County legislatures still set land use policy and zoning codes within the parameters of state law, but the hearing examiner method removes some of the favoritism that might otherwise take place.

Hearing examiners hear appeals, review planned unit developments, site specific rezones, and long plats. The examiner will hear appeals of zoning determinations if a property owner disagrees with the county planners. Such was the case with the earlier posted Park Store issue. Once the hearing examiner makes a determination, that decision can be appealed. In Whatcom County, the appeal goes to the County Council. The Council can overturn the hearing examiner if the the hearing examiner made a clear error in law. A rather high bar, but it does happen and the council must state the error.

Hearing examiners also review more complex land subdivisions known as planned unit developments. These types of land divisions often have more flexibility built into them to allow greater latitude for a property developer, but conditions are often added to ensure the intent of the zoning and regulations are met. The hearing examiner makes sure that regulations are followed and conditions appropriate to the impacts of the proposed development are written into the plan. It is a good accountability check to make sure planners that review the project are doing their job in an appropriate manner and are not being unduly influenced by higher ups in local government. It also allows for a process for interested parties to get information that is applicable to the county planners. These decisions get forwarded to the County Council for final decision. The council can uphold the recommendation or send it back if there is a legal error.

The hearing examiner also reviews long plats. These are often not very complicated and it is just a question of whether the land division meets the county code and development standards. These do not require council review, just the council chair signature. I caused a stir once when I refused to sign a plat because a note that was required to be on the plat plan was missing. Having a land use wonk as council chair caused no end of irritation.

Geology can be part of a hearing examiner review. Occasionally I write reports that are part of the record before a hearing examiner and a couple of times I have been asked to testify during hearings and have been subject to cross examination by attorneys. In this regard it is helpful to not only understand the geology of a site but also the lens through which the hearing examiner and attorneys are looking at the case - the legal aspects as spelled out by the words in the code. Understanding code is a bit like figuring out geologic strata using Steno's Principles. Tying code language to geology principles is a geology exercise that is frequently part of my job as a geologist. Providing good geology testimony also means knowing your audience and what they need. And sometimes as a geologist you need to tell your client long before they go to a hearing examiner that geologic conditions will not allow them to do what they want. Part of my job is giving people bad news.

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