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Committee of the Whole Packet for 07/09/2018
AGENDA Committee of the Whole Meeting 6:00 PM - Monday, July 9, 2018 Conferencing Center, 7th Floor, City Hall – 1055 S. Grady Way 1. Quasi-judicial Appeals Renton Municipal Code Title IV (Development Regulations) Amendment a) Issue Paper CITY ATTORNEY’S OFFICE M E M O R A N D U M (Non‐Privileged Communication) DATE: July 3, 2018 TO: Ed Prince, Council President Members of Renton City Council CC: Denis Law, Mayor FROM: Shane Moloney, City Attorney, x6487 STAFF CONTACT: Leslie Clark, Senior Assistant City Attorney, x6482 SUBJECT: Quasi‐Judicial Appeals ISSUE: Should the City Council amend the Renton Municipal Code’s provisions regarding quasi‐ judicial appeals to resolve an ambiguity in the environmental appeal procedures and to update the pathway for quasi‐judicial appeals? RECOMMENDATION: Request staff to prepare an ordinance amending the RMC’s appeal regulations to eliminate an ambiguity in the environmental appeal procedures. In addition, consider whether to amend the RMC to update the pathway for quasi‐judicial appeals by creating discretion for the City Council to reach the merits of such appeals, thereby, allowing any further appeal to proceed to court. BACKGROUND SUMMARY: The potential amendment of the RMC’s quasi‐judicial appeals regulations originated with an inquiry by the applicant of a currently pending land use permit application. Puget Sound Energy’s (PSE’s) “Energize Eastside” land use permit application is currently pending in the City, and PSE inquired about the process for potential future appeals when the City issues its decision on the land use permit application. Upon receiving that inquiry and reviewing the RMC, the City Attorney’s Office discovered an ambiguity in the RMC appeals process that could be read to illogically require appeals of hearing examiner decisions on certain environmental issues to be heard by the hearing examiner while other types of issues could simultaneously be heard by the City Council. Below, this memorandum provides additional background on the PSE project, including the potential scope of appeals of that project, and then examines options for updating the RMC’s processes for quasi‐judicial appeals. AGENDA ITEM #1. a) Ed Prince, Council President Page 2 of 8 July 3, 2018 PSE’s Energize Eastside Project and Potential Scope of Appeals PSE’s Energize Eastside project to upgrade its transmission line corridor is proposed to extend through portions of six jurisdictions: Renton, unincorporated King County, Newcastle, Bellevue, Redmond, and Kirkland. In March 2018, the project’s Final Environmental Impact Statement (FEIS) was published, and PSE subsequently submitted land use permit applications to Renton, to Bellevue, and to Newcastle. It is conceivable that Renton will be the first of the jurisdictions to issue a land use permit for the Energize Eastside project. This is significant because PSE is taking the position that the first land use permit to issue will allow appeals to be brought from all six jurisdictions on some aspects of the FEIS.1 In other words, if Renton issues the first land use permit, PSE believes that Renton’s land use permit decision could draw appeals from unincorporated King County, Newcastle, Bellevue, Redmond, and/or Kirkland – in addition to any appeals brought from within Renton or by PSE itself. As an additional layer of complexity, pursuant to an interlocal agreement among the six jurisdictions that are affected by the Energize Eastside project, Bellevue has agreed to take lead on some but not all of the FEIS appellate issues. Together, these issues could potentially complicate the appeal hearing process by requiring multiple days of testimony on issues varyingly involving one, several, or all of the six jurisdictions; resulting in the submittal and review of thousands of pages of documents and briefing; and requiring intensive coordination between Renton and Bellevue on the limited appellate issues that Bellevue will handle. Meanwhile, the Energize Eastside appeal process is also complicated by an ambiguity in the RMC. Pursuant to RMC 4‐8‐080.G, the hearing examiner will issue the land use decision (a conditional use permit) for the Energize Eastside project, with the hearing examiner’s decision then appealable to the City Council. The availability of such a quasi‐ judicial appeal to the City Council is found throughout the RMC; most land use decisions made by the hearing examiner are currently appealable to the City Council. However, here, the hearing examiner’s land use decision will rely, in part, on the FEIS, and pursuant to RMC 4‐9‐070.R, the FEIS appeal issues are not appealable to the City Council – instead, those issues are appealable back to the hearing examiner. Thus, the RMC provisions’ ambiguity creates two appellate concerns for the Energize Eastside project: 1. Some of the Energize Eastside appeal issues (the land use permit issues) would be sent to the City Council at the same time that other appeal issues (the FEIS issues) would be sent to the hearing examiner; and 1 The City does not necessarily agree with PSE that the first land use permit triggers a mandatory appeal period for anyone or any entity outside the City, but agrees that the likelihood is high of drawing appeals from outside the City. AGENDA ITEM #1. a) Ed Prince, Council President Page 3 of 8 July 3, 2018 2. The hearing examiner is both the decision maker and the appellate body on the FEIS issues. These concerns do not appear to benefit anyone. On the PSE Energize Eastside project, splitting appeal issues between the City Council and the hearing examiner could create confusion and delay for the proposal’s proponents and opponents alike. Additionally, sending the FEIS appeal issues to the same body that made the original decision on the FEIS issues (the hearing examiner) wastes time and resources. Option for Resolving the RMC 4‐9‐070.R Ambiguity The RMC’s ambiguity can be readily resolved by amending RMC 4‐9‐070.R to specify that where the hearing examiner is the decision maker, the hearing examiner will not also serve as the appellate body. Possible amending language follows, for consideration: RMC 4‐9‐070.R. APPEALS: 1. Except for permits and variances issued pursuant to RMC 4‐3‐ 090, Shoreline Master Program Regulations, when any proposal or action is granted, conditioned, or denied on the basis of SEPA by a nonelected official other than the Hearing Examiner, the decision shall be appealable to the Hearing Examiner under the provisions of RMC 4‐8‐110, Appeals. When such a proposal or action is conditioned or denied on the basis of SEPA by an elected official or by the Hearing Examiner, there shall be no administrative appeal. 2. Except for permits and variances issued pursuant to RMC 4‐3‐ 090, Shoreline Master Program Regulations, when any proposal or action is challenged as to a SEPA procedural determination, there shall be no administrative appeal. Burdens, Risks, and Benefits of Council Acting as a Quasi‐Judicial Decision Maker in Quasi‐Judicial Appeals In addition to revealing the RMC 4‐9‐070.R ambiguity, the scale of a potential appeal of PSE’s Energize Eastside project also exemplifies that quasi‐judicial appeals to the City Council can create significant time and resource burdens on the Council. Staff recommends the Council consider whether the benefits of Council holding appeals outweighs the burdens and risks of it doing so. Burdens and Risks Time and resource burdens reduce the Council’s focus on legislative policy‐making, while increasing financial risk to the City if a Council decision is appealed and overturned. Reducing or eliminating appeals to Council would include the following benefits: AGENDA ITEM #1. a) Ed Prince, Council President Page 4 of 8 July 3, 2018 The legislative branch of government is designed to be responsive to the voices of its constituents, whereas quasi‐judicial appeals must be rendered based on facts and law apart from the needs of proponents or opponents and regardless of City Council members’ individual positions on issues. Outside of the hearing itself, a City Council member involved in a pending quasi‐ judicial appeal should avoid implicating the appearance of fairness doctrine and, thus, cannot engage in discussions with anyone about the issues even if a proponent or opponent seeks out the Council member. Policy/political based statements about or related to an appeal (or appellant) that a Council member makes in a hearing or outside a hearing can create further appeal risks and civil liability risks to the City. To the extent that a Council member is faced with applying a provision of the code with which he or she may disagree or find outdated, the Council member must disregard his or her views and apply the code provision as currently written. The hearing and decision process on a quasi‐judicial appeal is often time‐ intensive, further drawing Council members (and supporting staff) away from other interests and responsibilities. If the City Attorney’s Office has advised City staff on the underlying land use decision, the costly retention of outside legal counsel is necessary to assist the City Council with appellate procedure in order to avoid an appearance of fairness doctrine violation that could arise out of the same legal office representing both a party to the appeal and the decision maker. The cost of outside counsel could be particularly high in complex appeals or appeals with sizable records. Appeals over highly contentious issues may be appealed beyond the City Council regardless of whether the Council affirms or reverses a hearing examiner decision. In such cases, adding an additional layer of appeals unnecessarily adds cost to the City and parties of record, while also delaying a final decision. If the Council is not a quasi‐judicial decision maker and disagrees with a hearing examiner’s decision (e.g. to grant a permit), the City can appeal that decision to superior court without risk of fees being imposed if the City loses its appeal. However, if the Council makes a decision (denies a permit) that is found to be erroneous on further appeal, the City risks being required to pay attorneys’ fees and potentially damages for such decision. By stepping out of the quasi‐judicial appeal pathway, the City Council would avoid litigation risks that other jurisdictions have faced, for example: - An appellate court concluded that the Pierce County “Council based its decision [to deny a permit for a gravel mine and asphalt plant] on community displeasure and not on reasons backed by policies and standards as the law requires.” Maranatha Mining v. Pierce County, 59 Wn. App. 795, 805, 801 P.2d 985 (1990). The court reversed the County AGENDA ITEM #1. a) Ed Prince, Council President Page 5 of 8 July 3, 2018 Council’s denial of the permit and summarily ordered that the permit be issued. - The City of Spokane was exposed to liability for damages, attorney fees, and appellate costs for its City Council’s decision to withhold issuance of a grading permit. Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 972, 954 P.2d 250 (1998). - A procedural defect in Clark County’s appellate process could have given rise to causes of action for statutory writs of prohibition, mandamus, or certiorari, or the constitutional writ of certiorari. See Pacific Rock Envtl. v. Clark County, 92 Wn. App. 777, 782 n.3, 964 P.2d 1211 (1998). With these considerations in mind, other jurisdictions in Washington—including Covington, Kirkland, Mercer Island, Shoreline, Pierce County, and Edmonds—have rencently made the change to eliminate their councils from the quasi‐judicial appellate role of considering quasi‐judicial appeals. At least some of these jurisdictions have made such changes after experiencing negative outcomes while holding dual legislative and quasi‐judicial roles as is further explained in the attached Municipal Research & Services Center article. Benefits of Council Serving as Legislators and Quasi‐Judicial Decision Makers The Council has in the past honored its duty to refrain from ex parte (i.e., outside of formal hearing) communications with constituents and the parties to a quasi‐judicial appeal, communicated those limitations to constitutents upon receiving uninvited communication, and decided cases giving legally required deference to the hearing examiner’s application of the law and facts – regardless of whether the Council agreed with either the facts in the record or the application of law.2 As long as the Council is able to steadfastly follow those rules, the legal risks of hearing appeals can be minimized and benefits of hearing such appeals can be realized. The primary benefit of the City Council hearing appeals is providing a potentially less expensive and timely appeal opportunity to the parties. However, as mentioned in the preceding section of this memo, this intermediate level of appeal could also increase costs to the parties by complicating later appeals to superior court with additional appeal issues (e.g. alleged violations of the appearance of fairness doctrine or alleged council consideration of facts outside of the record). 2 When hearing appeals, the Council may only consider facts entered into the record at the hearing examiner’s hearing. The Council may not take new testimony or consider facts known to it that fall outside of the record created by the hearing examiner. Preventing new facts from coming before the Council can be difficult, in light of the Council allowing public testimony at each of its Council meetings. Moreover, the Council is required to give deference to the hearing examiner. In some cases, that means the Council could be required to affirm a hearing examiner decision that is supported by the evidence even if it would have ruled differently if it were the initial decision maker. AGENDA ITEM #1. a) Ed Prince, Council President Page 6 of 8 July 3, 2018 Other benefits of the City Council hearing quasi‐judicial appeals include: It could potentially allow the City Council to avoid City liability by reversing a hearing examiner decision that deprives a party of property or other rights so as to give rise to a civil cause of action against the City. However, by hiring an experienced attorney as a professional hearing examiner, there is a low probability of a hearing examiner decision leading to civil liability for the City. It provides the Council with first hand experience with how the laws it adopts are applied in practice. As pointed out in the attached MRSC article, this goal could be at least partially accomplished through regular updates to the Council on hearing examiner decisions and/or briefings on any appeals from hearing examiner decisions to the superior court. It allows the Council’s constituents to see that the Council is engaged in overseeing its hearing examiner. However, this benefit could be offset by by the fact that as a quasi‐judical body, the Council would be severely limited in its ability to take testimony from constituents about the underlying subject matter and its role as a quasi‐jucial hearing body could complicate its ability to act on requests for related legislative fixes while the appeal is pending. Potential Modifications to the Quasi‐Judicial Appeals Process To date, staff has identified three options for the Council’s consideration to update the quasi‐judicial appeals pathway. The first two options would minimize the burden and risks on the City and the City Council. The third option would only eliminate the current ambiguity in the code that initially brought this issue to the forefront. Option A: Maintain the current pathway for quasi‐judicial appeals to be brought to the City Council, but amend the RMC to expressly allow the Council to decline to reach the merits of a quasi‐judicial appeal if necessary to avoid an undue burden on the City due to the complexity of the particular quasi‐judicial appeal. Declining to reach the merits of a quasi‐judicial appeal would spare the Council from holding a hearing, reviewing the record, or otherwise considering and deciding on the appeal issues. Instead, the Council would simply “affirm without review” the hearing examiner’s prior decision.3 If this option is selected, the RMC would be amended to specify the measures of a quasi‐judicial appeal’s burden, such as: the number of permits associated with the project, the number of parties of record, the number of governmental 3 Under applicable authority, if the Council acts at all on a quasi‐judicial appeal, it must actually issue a decision, rather than simply deferring or declining. See RCW 35A.63.170 (a hearing examiner decision must constitute one of the following: (1) a recommendation to the City Council; (2) a decision appealable to the City Council; or (3) (except for rezones) the final decision of the City Council)). See also Van Sant v. City of Everett, 69 Wn. App. 641, 646, 849 P.2d 1276 (1993) (City of Everett “declined to review the matter de novo and adopted the hearing examiner’s decision). AGENDA ITEM #1. a) Ed Prince, Council President Page 7 of 8 July 3, 2018 agencies involved from different levels of government, potential issues with applicable treaties, the crossing of multiple municipal or other jurisdictional boundaries, or simply the Council and/or staff availability to schedule and hold a timely hearing. This option would eliminate much of the quasi‐judicial appeal burden on the Council, but still allow the Council to be available and flexible to reach the merits of quasi‐judicial appeals where it would not unduly burden the City to do so. This option would not, however, eliminate the risks associated with the Council hearing appeals in those instances it reaches the merits of an appeal. It would also add a risk that a party could challenge the Council’s discretionary decision to “affirm without review.” Because the decision to not reach the merits of an appeal would itself be a quasi‐judicial decision, the Council would likely need to retain independent legal counsel if the City Attorney’s office had represented the City before the hearing examiner. In addition, amend the ambiguity identified in RMC 4‐9‐070.R. Amending this ambiguity could be achieved through a non‐legislative code interpretation, but resolving the ambiguity legislatively reduces risk of unnecessary challenge. Option B: Amend the RMC to eliminate quasi‐judicial appeals to the City Council. Rather, appeals of administrator decisions would be assigned to the hearing examiner, and appeals of hearing examiner decisions would be assigned to superior court. This option most dramatically reduces the burden on the Council and associated risks because it categorically eliminates City Council quasi‐judicial appeals. In addition, amend the ambiguity identified in RMC 4‐9‐070.R. Option C: Leave unchanged the current system of appeals to City Council, and amend only the ambiguity identified in RMC 4‐9‐070.R. CONCLUSION: Although the ambiguity in RMC 4‐9‐070.R could, if necessary, be reconciled through non‐legislative code interpretations, resolving the ambiguity legislatively reduces risk of unnecessary appeals and litigation costs. This is also an opportunity for the Council to revisit whether and to what extent appeals from the hearing examiner should be heard by the City Council. Upon receiving feedback from the City Council on the three options regarding the pathway for quasi‐judicial appeals, the City Attorney’s Office will present a draft ordinance to the Planning Commission for its further consideration and recommendation. Our goal is to, at a minimum, address the ambiguity in RMC 4‐9‐ AGENDA ITEM #1. a) Ed Prince, Council President Page 8 of 8 July 3, 2018 070.R as soon as possible so that it can be resolved prior to receiving an appeal implicating that ambiguity. Attachment AGENDA ITEM #1. a) Should Legislative Bodies Conduct Quasi-Judicial Hearings? August 31, 2016 by Joseph W. Tovar Category: Land Use Administration, Planning Advisor Photo credit: Michael B. Can you be a legislator and a judge at the same time? Any high school civics student can correctly answer this question with respect to the federal and state governments. The answer is an unequivocal “no” because of the separation of powers doctrine - one of the key principles contained in both the federal and state constitutions. The response to this issue at the local government level, however, has historically been different, particularly with respect to the land use permit review process. People are elected to Congress or the Washington State Legislature to be lawmakers. They make the law by adopting legislation. The administration and enforcement of laws adopted by those legislators is the responsibility of the executive branch. The judicial branch of government plays a very different role - it applies the meaning of the law to cases brought before it. Adjudication requires reviewing evidence and arguments and applying the law to the facts of the case to determine the outcome. In contrast to the legislative and executive branches, which are unquestionably political bodies, the judicial branch at both the federal and state level was designed to be apolitical – rendering judgments based on facts and law, not on popular opinion or campaign promises. This “separation of powers” has been less absolute at the local government level in Washington. Since statehood, local governments have mirrored the distinct roles and functions of the legislative branch (e.g., city, town, and county councils) and the executive branch (e.g., elected mayors). However, until the 1970’s, councils in all Washington cities also played a “quasi-judicial” role with respect to certain land use permits. They were responsible not only for adopting local zoning laws, but sitting in judgment on appeals when zoning permits were approved or denied by an administrator, a board of adjustment, or a hearing examiner. Any party dissatisfied with the council’s decision on such appeals may appeal to superior court. A superior or appellate court may overturn a council’s decision, but significantly, depending on the circumstances, may also impose financial judgments against the city. MRSC - Should Legislative Bodie... http://mrsc.org/Home/Stay-Inform... Page 1 of 4 7/3/2018http://mrsc.org/Home/Stay-Informed/MRSC-Insight/August-2016/Should-Councils-Conduct-Quasi... AGENDA ITEM #1. a) Since the 1970s, many counties and cities have moved away from the “quasi-judicial” role. This movement began with the adoption by local governments of the hearing examiner system to conduct public hearings on many quasi- judicial land use permits, building a record, and adopting conclusions of law to support the decision. Hearing examiners are hired because of their background in land use law and most are lawyers. Their professional training enables them to avoid procedural or other errors that would undermine the legal sufficiency of the permit review and decision. As non-elected officials, hearing examiners are insulated from political pressures and are relied upon to render objective and impartial decisions. Many cities in the state now use hearing examiners to conduct at least some quasi-judicial public hearings. While council action is required on rezones, the law gives councils the option to assign to their hearing examiners authority to make final decisions on other types of quasi-judicial permits. Examples of such permits are conditional use permits, variances, planned unit developments, design review approvals, site plan approvals, and short subdivisions. Over the past decade, many city councils have removed themselves from final approvals and appeals of these types of quasi-judicial decisions, delegating that responsibility to their hearing examiners. This means that any appeals of a hearing examiner’s decision are taken directly to superior court rather than to the council. Why have those cities, including Covington, Kirkland, Mercer Island, Shoreline, and Edmonds, taken this step? Why should your council consider following their lead? There are many reasons, but here are the top three: 1. One major concern is the financial risk of having lay elected officials with no training or background in the law attempting to, in effect, practice law. That is why the Washington Cities Insurance Authority, the risk pool for many cities in the state, strongly encourages councils to divest themselves as much as possible of the quasi-judicial role. There are a number of procedural pitfalls that could expose the city treasury to multi- million dollar judgments. Even the most intelligent, best-intentioned, and detail-oriented people make mistakes. The risk of such mistakes is amplified at least seven-fold when seven non-legally trained council members are involved, rather than a single legally-trained hearing examiner. When sitting as a quasi-judicial body, some city councils conduct not only the hearing but also their deliberations in open session. Some do so in an effort to make the process more transparent, but this practice also increases the surface area for a procedural misstep to occur. A too frequent error is allowing a member of the public to make comment outside the record, after it is closed. Sometimes council members feel compelled to make off-the-cuff remarks in an attempt to mollify unhappy citizens, a practice which is fraught with risk. A hearing examiner listens to public comments at the hearing and may ask questions of clarification, but her/his deliberation is an internal mental process – it occurs after the hearing is over, not while it is still in session. 2. Quasi-judicial cases can be extremely time intensive.The record and written and oral argument can consume many hours of time to be sufficiently reviewed, debated, and discussed. This is typical even for project permits that are fairly small in scope, such as a four-lot short plat or a variance for an individual house. City councils have many demands on their agenda time including issues with far greater impact on the well-being of the entire community. Only the elected council can adopt city budgets, ordinances and programs, and provide overall policy direction to the many functions of the city organization. They cannot delegate those responsibilities to others. With the exception of rezones, councils can delegate the quasi-judicial role. MRSC - Should Legislative Bodie... http://mrsc.org/Home/Stay-Inform... Page 2 of 4 7/3/2018http://mrsc.org/Home/Stay-Informed/MRSC-Insight/August-2016/Should-Councils-Conduct-Quasi... AGENDA ITEM #1. a) About Joseph W. Tovar Joseph W. Tovar writes for MRSC as a Planning Advisor. Joseph W. Tovar, FAICP, helps communities create visions of their preferred futures, and how to implement them through plans, codes, projects, strategies and organizational training. He has served as planning director for the cities of Shoreline, Kirkland and Covington and as Chair of the Growth Management Hearings Board. Now in private practice, Mr. Tovar has provided consultant services to private clients as well as Snohomish and Kitsap counties, the cities of Everett, Lacey, Kirkland, and SeaTac, as well as the Association of Washington Cities. He is a Fellow of the American Institute of Certified Planners and an Affiliate Associate Professor at the University of Washington. He has taught land use decision-making and city planning best practices to audiences of planning commissioners, elected officials, planning directors and graduate students. More information is posted online at www.tovarplanning.com. He can be reached at joe@tovarplanning.com. The views expressed in Advisor columns represent the opinions of the author and do not necessarily reflect those of MRSC. VIEW ALL POSTS BY JOSEPH W. TOVAR 3. The quasi-judicial role frequently places city council members in an untenable lose-lose predicament. Elected officials can be caught between the need to be responsive to the desires of their constituents and their duty to be responsible to the clear legal criteria governing the permit decision before them. For example, elected officials involved in a quasi-judicial hearing may not engage in “ex parte” discussions with community members about the pros and cons of that case, which can be frustrating for both parties. Doing the right thing by the legal criteria for a decision may result in a political cost at the next election, while departing from the legal framework in order to satisfy constituents runs the risk of a potentially catastrophic hit on the city treasury. The reasons for councils to remove themselves from the quasi-judicial role are many and compelling. This does not mean that they can no longer be responsive to the needs of their communities and citizens. Indeed, it should be remembered that every quasi-judicial decision is governed by the applicable land use policies and code standards that are adopted by – the city council! To that end, a council’s time and attention to land use matters is best invested in adopting clear and effective policies and codes that govern all permits, including quasi-judicial ones. Several cities also require an annual report from their staff and hearing examiners summarizing the nature, frequency, and disposition of quasi-judicial permits. Such ongoing monitoring enables them to identify land use policies or standards that should potentially be revised. By playing this legislative role, a role for which they are uniquely suited and which only they can play, a city council can more effectively provide needed direction to the development of their community without exposing the city to needless financial risk. Comments 5 comments on Should Legislative Bodies Conduct Quasi-Judicial Hearings? MRSC - Should Legislative Bodie... http://mrsc.org/Home/Stay-Inform... Page 3 of 4 7/3/2018http://mrsc.org/Home/Stay-Informed/MRSC-Insight/August-2016/Should-Councils-Conduct-Quasi... AGENDA ITEM #1. a) © 2015 MRSC of Washington. All rights reserved. Privacy & Terms. "David offers a good suggestion - although RCW 58.17 requires final plat approval to be done by the legislative body, the nature of that final review is more ministerial in nature than legislative or even quasi-judicial. It is basically a 'check the box' exercise to make sure that all the conditions imposed on the preliminary plat (e.g., installation or bonding of improvements, etc.) have been satisfied. It could be as mechanical a review as the staff review of a building permit. Such reform would save time and money (delayed processing has a cost) for the applicant, staff and the legislative body." Joe Tovar on Sep 22, 2016 8:57 PM "Joe - it would be helpful to get the Legislature to remove the requirement in RCW 58.17 that final plats be approved by the council. the preliminary decision is made by the Hearing Examiner, and then we continue to ask our legislative bodies to approve the final plat. A simple amendment would fix this conflict." David Stalheim on Sep 16, 2016 6:41 PM "Very thoughtful piece. It raises, in my mind, a "flip-side" question of whether the judges on the State Supreme Court should engage in quasi-legislative activities such as rule-making for the state court system. Perhaps court rules should be adopted by a council or commission comprised of judges from all levels, legislators, lawyers and lay people. Then the members of a specific court, like the State Supreme Court, would not have to be in the rule- making business, a legislative task that they are not necessarily suited for--this is similar to Joe's point that city councilmembers might not be suited for acting like judges." Hugh Spitzer on Sep 6, 2016 5:24 PM "Crystal-clear and compelling! Thanks for this fine post, Joe." Ann Macfarlane on Aug 31, 2016 7:05 PM "Many city councils are not comfortable allowing the hearing examiner to make the final decision on a land use case. However, those city councils should be aware that if they believe that the hearing examiner's decision is not supported by substantial evidence (as required by LUPA in RCW 36.70C.130), they can appeal that decision to superior court under LUPA. As long as the city council doesn't request a stay of the decision, such an appeal should not subject the city to a damages claim. See, Hunt Skansie Land v. City of Gig Harbor, U.S. Dist. Court, W.D. Wash. 12-23-10, 2010 WL 5394991. Be sure that you have a permit processing chapter which addresses appeals by identifying the city council as a "aggrieved party," to eliminate unnecessary disputes. later on standing issues." Carol Morris on Aug 31, 2016 7:04 PM MRSC - Should Legislative Bodie... http://mrsc.org/Home/Stay-Inform... Page 4 of 4 7/3/2018http://mrsc.org/Home/Stay-Informed/MRSC-Insight/August-2016/Should-Councils-Conduct-Quasi... AGENDA ITEM #1. a)