The Mayor Takes the Wheel

Who has the final say in land use decisions? Can the Mayor or Council intercede to bypass our state and city land use laws and procedures? That’s what appears to have happened with a proposed 11-unit development in the Wing Point neighborhood when the Mayor, without any apparent authority, essentially gave a developer a second chance to try the same case.

The Rules of the Road

Island land use decisions are initially made by the City Planning Department. When a conditional use permit is involved, the City Planning Director presents the report at a public hearing before the Hearing Examiner. During this process, representatives of the Wing Point Way Neighborhood presented their concerns about Capstone Partners’ plans to develop a thin strip of land along a ravine on Wing Point Country Club property. Following the hearing, the Hearing Examiner (HEX) issued her decision on July 21, 2006, reversing the City Planning Director’s decision and denying Capstone’s Conditional Use Permit (CUP) to build 11 “patio” homes on the 3.9 acre parcel. At that point, either party could appeal the HEX’s decision to Superior Court. Alternatively, either party could ask the Hearing Examiner to “reconsider” her decision if they could demonstrate that a clear mistake had been made or that new evidence had been discovered that could not have been produced at the hearing. Capstone timely filed their appeal in Superior Court on August 8, 2006.

A U-Turn at Superior Court

Something unusual then happened with Capstone. On July 13, 2007, after almost a year of delays, counsel for the City was asked, apparently by Mayor Kordonowy, to join the developer’s attorney in signing a stipulation to grant Capstone a second bite at the apple. The case was remanded, removing it from Superior Court and sending it back to the HEX. There is no record of City Council having agreed to this action. Nor does there appear to be any authority for the mayor to have negotiated the agreement.

What’s extraordinary is that this stipulation was signed by the two parties who lost before the HEX in 2006—Capstone and the City, which had given the development a thumbs up. It was after hearing the comments of the community that the HEX ruled that the City’s approval of the CUP should not be upheld, and denied Capstone’s application for a CUP, in one of just two HEX decisions out of eleven that found for the community and against the City in 2006. Capstone lost not only because the law was against it, but because the community was both angry and alert.

Time to cry “foul”

We all expect our state and municipal laws to apply to all of us, including elected officials – including our Mayor. What happened here? The Hearing Examiner will rehear this matter based, not on “newly discovered evidence,” but rather based on evidence that the developer is now willing to develop (including Revised Site Plans) in order to convince the Hearing Examiner on a second go-around.

It’s time for the community to cry “foul”. There is no notation in the City Council minutes that justifies City intervention in this action by Council or the Mayor. And the recent Council authorization for the Mayor to settle litigation that does not exceed $50,000 was never intended to circumvent state and city land use laws that meticulously set forth rules and procedures for decision making. In addition, an exhaustive search has turned up no mayoral authority under state law to intercede in or settle land use matters.

The Ride’s Not Over Yet

Obviously the Mayor’s intervention in this matter creates quite a coup for Capstone. Not only will this remand allow Capstone to re-argue its case, but it will also allow Capstone to avoid having to file a new Conditional Use Permit. Why is that important? If Capstone applied for a new CUP, it would have to comply with the new and stricter Critical Areas Ordinance, which provides greater protection for our most vulnerable critical land areas, including the steep slope and creek on the property in question. And this intervention is not the only special treatment Capstone has enjoyed in recent months. Amazingly, on June 24, 2007, the Mayor granted a $25,000 no-bid contract to Capstone, a litigant against the City, for a downtown parking garage study.

The Wing Point neighbors, who successfully spoke out against the Capstone development at the 2006 hearing, have remained organized and are speaking out now about these latest developments. They have published a blog to keep the community informed and have asked members of the community to question the mayor regarding her involvement in the case. Go here for more information and updates.