There have long been indications that City Hall is overly susceptible to litigation pressure from the moneyed interests on the Island. Unfortunately, as non-elected citizens, we are at a disadvantage when it comes to monitoring how the City manages its litigation portfolio, as virtually all discussion and negotiation occur behind the veil of executive session. However, sometimes the results of these efforts to appease the disgruntled citizen come to light and demand our attention. Last year, it was docks on Blakely Harbor. This year, it’s patio houses along the Wing Point Ravine.
As a community we are deeply affected by the financial realities of handling constant litigation. Frivolous, legitimate, malicious or well-intentioned, lawsuits bleed the coffers and are a distraction from the real business of running a city government. Therefore, they should be settled when appropriate. But not at all costs. Re-writing laws, manipulating public policy or making special exceptions to satisfy a complainant jeopardizes the integrity and viability of the government and its policies.
Quid Pro Quo
Capstone Partners, dissatisfied with the Hearing Examiner’s (HEX) decision denying its application for a Conditional Use Permit (CUP) to build 11 houses along a ravine near Wing Point Country Club, filed a lawsuit for damages against the City in August of 2006, one week after filing an appeal of the HEX decision. In July of this year, in an apparent attempt to settle the damages claim, the Mayor authorized the attorney for the City to enter into a stipulation of facts in support of and calling for a remand of the CUP matter to the HEX. The Superior Court accepted the stipulation and remanded the case.
The legal authority to authorize the stipulation to the remand, the subject of an earlier article on this blog, is not dispositive of the question of whether this remand and the context in which it occurred are appropriate. The facts available to the public suggest that even if the mayor had had the authority to agree to a legitimate remand, the decision to remand in this case, in the absence of newly discovered evidence and in the context of a settlement agreement, was at best contrary to the public good. Furthermore, it remains unclear as to whether the Mayor had authority to settle the damages claim at all.
As discussed previously on this blog, there appears to be neither newly discovered evidence nor a clear mistake justifying a remand to the hearing examiner. The issue could have been appropriately litigated before the Superior Court, with the City advocating for its Hearing Examiner’s application of its land use code, and with the Court making a decision as to the appropriateness of a remand. But instead the City, at the behest of the Mayor, agreed to the remand in consideration for the dismissal of the damages claim.
Money Changes Everything
As a general rule, the City Council has final authority over the settlement of lawsuits. In March of this year, the City Council, at the request of the administration, granted the Mayor the authority to settle claims by or against the City “in an amount of $50,000 or less”. In the damages claim at hand, Capstone sought relief under RCW 64.40.020 and alleged that the HEX had acted in an “illegal and/or arbitrary and capricious” manner (a high standard consistent with the deference generally granted to governmental action). The damages alleged included “expenses and losses, including lost sales and profits, enhanced construction costs...” and “costs and attorneys fees”.
Clearly, were the plaintiffs to prevail, potential damages would far exceed $50,000. Clearly, Capstone would never have considered settling for an amount less than $50,000, as that would not have even paid their legal bills. And so the question remains: Under what authority did the Mayor act to settle the Capstone lawsuit?
Even if the Mayor had had the authority to settle the damages claim, a critical public policy question remains. Should the outcome, or even status, of a land use decision ever be on the negotiating table when the Mayor, or Council, is contemplating settling a claim against the City? There can be no dispute as to the answer to that question. We are a society of laws. We expect laws and policies to be applied as fairly and consistently as possible. We expect those we entrust with applying the law to correct mistakes made in the application of the law (to reverse, remand or withdraw) but not to change the rules of the game arbitrarily for privileged members of the community. Aside from the fundamental unfairness to the rest of the community who must abide by the rules, and the implications for whatever public good the law was attempting to protect, what message does this send to those with the financial ability and will to sue over any legal action that causes them inconvenience or discomfort?
Whatever the outcome of the Capstone controversy, perhaps it’s time for the City Council to take another look at the scope of authority that it actually granted to the Mayor to settle claims. Was it ever intended that the Mayor, independent of Council, could settle claims, like Capstone, where the actual relief sought is not in the form of monetary damages but in a favorable land use decision? And perhaps Council should revisit the associated grant of authority to the Mayor to approve contracts valued up to $100,000 (recall the $25,000 no bid contract to Capstone for the parking garage). Surely, decisions concerning such significant amounts of our tax money and critical legal issues should be vetted by more than one person and through a more transparent process.
The HEX is scheduled to hold a public hearing on the Capstone matter on September 27th.
Showing posts with label Land Use. Show all posts
Showing posts with label Land Use. Show all posts
Monday, September 17, 2007
Tuesday, August 28, 2007
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.
Thursday, August 16, 2007
John Waldo’s Trojan Horse
It was sad enough to see to see John Waldo’s temper tantrum over the 23rd legislative district’s endorsement in a letter to the Islander, but it was truly ridiculous to see it promoted to front-page news in Wednesday’s Review. Of course, editor Doug Crist is a big time Waldo fan, and we know from experience that when determining the prominence of a story for the Review, friend-of-the-editor is sure to trump newsworthiness
So aside from an endorsement, and access to Page One, is Waldo getting any other special treatment from The Review? That depends on whether or not you believe it's our local paper’s responsibility to investigate and report on a candidate’s potential conflicts of interest, or to at least scratch the paint on a candidate’s shiny new campaign platform.
John Waldo takes on the Comp Plan
In 2005, John Waldo wrote a legal analysis of the implications of the Growth Management Act (GMA) for our Comprehensive Plan (Comp Plan) and its goal of preserving our rural density outside of Winslow. Waldo’s position was that, while admitting our population allocation is not a “quota”, nonetheless “Bainbridge will need to engage in substantial upzoning sooner or later”. Why is upzoning inevitable? That Waldo does not explain.
Waldo admits, the law is in flux. Thus, he could have stated that the City should stand firmly by our Comp Plan mandates. But like many others at the helm of our city today, and those acting behind the scenes, Waldo chooses not to advocate for our unique circumstances as an Island and a rural city. Is this because he feels strongly that it is the correct and unavoidable interpretation of the GMA that we eventually upzone the entire Island to accommodate an endless stream of population growth? Or is it, perhaps, that Waldo has no interest in upholding the goals and intentions of our Comp Plan?
Consider Waldo’s recommendation in that 2005 memo:
“Any way we look at it, then, we will have to upzone portions of the Island sooner or later. To me it makes sense to begin that process now. We could turn the process into a real positive by linking at least some of the upzoning to affordable housing.”
The Wind Beneath his Wings
Now, why would Mr. Waldo advocate for preemptive upzoning? Especially when he acknowledges that development today at one housing unit per 1 –2.5 acre lot would “effectively thwart future development at urban densities.” (Isn’t that what a majority of Islanders have asked for?)
Perhaps the explanation lies in who John Waldo is and what interests he serves. Check out his profile on Lawyers.com which lists as his “representative clients”, Samson Family Land Co, Madison Avenue Development and Hillandale Homes, and his areas of practice as Zoning, Planning and Land Use, Real Estate and Environmental Law, in that order. Any guesses as to which side he represents when the issue is the environment?
Who Needs Zoning Laws Anyway?
It so happens that Waldo currently has before the Planning Commission a proposed amendment to the Comp Plan that may shed some light on what he means by turning upzoning into “a real positive”. With the stated goal of creating a new affordable housing program, it sounds downright altruistic at first blush. That is until you take a closer look at what is being proposed.
It turns out that the plan is to:
“provide an incentive to build affordable housing on Bainbridge Island by allowing such projects to be exempt from the development standards applied to the underlying zone in which the project is sited”.
Just in case you are thinking that that couldn’t mean what it sounds like (a complete gutting of our zoning laws), take a look at this section of the proposed amendment:
“Qualified Affordable Housing Projects may be exempt from the development standards of the BIMC Title 17 Subdivision and Title 18 Zoning, including density, lot coverage, permitting requirements for a specific type of housing ... building-to-building setbacks, building height, on-site parking requirements, tree clearing requirements and required open space.” (emphasis added)
In other words, today you may reside next to a vacant five-acre parcel, zoned one single family home per 2.5 acres, with mandatory setbacks, limited building heights and limits on tree clearing, but under Waldo’s proposal, you could wake up to a three-story, multifamily complex on a clear-cut lot.
And who will benefit from this affordable housing development (besides the developer)? We don’t know. As City staff points out in its analysis of the amendment:
“Typically affordable housing programs specify which household income groups are targeted to benefit from the program...The proposed (amendment) does not indicate what level of affordability would be required for a Qualified Affordable Housing Project.”
Nor does the proposal “identify how the relevant properties would remain affordable over time.” Apparently Waldo saw no need to work out those minor details before submitting the amendment to the City.
So what’s the moral of the story? If it walks and talks like a representative of the development community, it probably is one.
So aside from an endorsement, and access to Page One, is Waldo getting any other special treatment from The Review? That depends on whether or not you believe it's our local paper’s responsibility to investigate and report on a candidate’s potential conflicts of interest, or to at least scratch the paint on a candidate’s shiny new campaign platform.
John Waldo takes on the Comp Plan
In 2005, John Waldo wrote a legal analysis of the implications of the Growth Management Act (GMA) for our Comprehensive Plan (Comp Plan) and its goal of preserving our rural density outside of Winslow. Waldo’s position was that, while admitting our population allocation is not a “quota”, nonetheless “Bainbridge will need to engage in substantial upzoning sooner or later”. Why is upzoning inevitable? That Waldo does not explain.
Waldo admits, the law is in flux. Thus, he could have stated that the City should stand firmly by our Comp Plan mandates. But like many others at the helm of our city today, and those acting behind the scenes, Waldo chooses not to advocate for our unique circumstances as an Island and a rural city. Is this because he feels strongly that it is the correct and unavoidable interpretation of the GMA that we eventually upzone the entire Island to accommodate an endless stream of population growth? Or is it, perhaps, that Waldo has no interest in upholding the goals and intentions of our Comp Plan?
Consider Waldo’s recommendation in that 2005 memo:
“Any way we look at it, then, we will have to upzone portions of the Island sooner or later. To me it makes sense to begin that process now. We could turn the process into a real positive by linking at least some of the upzoning to affordable housing.”
The Wind Beneath his Wings
Now, why would Mr. Waldo advocate for preemptive upzoning? Especially when he acknowledges that development today at one housing unit per 1 –2.5 acre lot would “effectively thwart future development at urban densities.” (Isn’t that what a majority of Islanders have asked for?)
Perhaps the explanation lies in who John Waldo is and what interests he serves. Check out his profile on Lawyers.com which lists as his “representative clients”, Samson Family Land Co, Madison Avenue Development and Hillandale Homes, and his areas of practice as Zoning, Planning and Land Use, Real Estate and Environmental Law, in that order. Any guesses as to which side he represents when the issue is the environment?
Who Needs Zoning Laws Anyway?
It so happens that Waldo currently has before the Planning Commission a proposed amendment to the Comp Plan that may shed some light on what he means by turning upzoning into “a real positive”. With the stated goal of creating a new affordable housing program, it sounds downright altruistic at first blush. That is until you take a closer look at what is being proposed.
It turns out that the plan is to:
“provide an incentive to build affordable housing on Bainbridge Island by allowing such projects to be exempt from the development standards applied to the underlying zone in which the project is sited”.
Just in case you are thinking that that couldn’t mean what it sounds like (a complete gutting of our zoning laws), take a look at this section of the proposed amendment:
“Qualified Affordable Housing Projects may be exempt from the development standards of the BIMC Title 17 Subdivision and Title 18 Zoning, including density, lot coverage, permitting requirements for a specific type of housing ... building-to-building setbacks, building height, on-site parking requirements, tree clearing requirements and required open space.” (emphasis added)
In other words, today you may reside next to a vacant five-acre parcel, zoned one single family home per 2.5 acres, with mandatory setbacks, limited building heights and limits on tree clearing, but under Waldo’s proposal, you could wake up to a three-story, multifamily complex on a clear-cut lot.
And who will benefit from this affordable housing development (besides the developer)? We don’t know. As City staff points out in its analysis of the amendment:
“Typically affordable housing programs specify which household income groups are targeted to benefit from the program...The proposed (amendment) does not indicate what level of affordability would be required for a Qualified Affordable Housing Project.”
Nor does the proposal “identify how the relevant properties would remain affordable over time.” Apparently Waldo saw no need to work out those minor details before submitting the amendment to the City.
So what’s the moral of the story? If it walks and talks like a representative of the development community, it probably is one.
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