Mediation in the hearing examiner’s public hearing process.

by Bill Palmer

Some may have read the Kitsap Sun back in June that the Board of County Commissioners adopted a new mediation process to occur prior to an appeal of a Hearing Examiner’s decision.

The report of the Board’s action on June 8th was somewhat misleading. All the Board did on that date was to amend the Hearing Examiner’s ordinance to allow the Hearing Examiner to recommend mediation if a contested matter would result in an appeal. The process and rules for how mediation would work has not yet been adopted.

This past July 21st, the County Planning Commission began consideration of the mediation language to be inserted in to Kitsap County’s “Procedures Ordinance” also known as Title 21.04 of the Kitsap County Code. The process of mediation has two elemental parts.

The first opportunity for mediation comes when an applicant receives a staff report on his or her project and finds substantive disagreement with proposed conditions of approval or perhaps a recommendation for denial. In this instance the applicant can request “pre-hearing” mediation prior to the formal public hearing before the Hearing Examiner.

In concept two opposing parties, i.e. the applicant and Department of Community Development (DCD) staff would discuss their grievances in the presence of an arbiter who would attempt to help the parties structure a compromise and thereby avoid a later appeal of a hearing examiner decision.

The other avenue to arbitration would come when at public hearing the Hearing Examiner receives opposing testimony from exercised adjacent property owners and interested citizens. In this instance, the Hearing Examiner can recommend mediation as a means by which a compromise might be struck between an applicant and the citizens. If either party rejects the mediation process, the Hearing Examiner will go forward to make a decision. On the other hand if a mediation process is carried out, then the Hearing Examiner can take that “deal” into consideration when he or she renders the decision.

It is both possible and necessary that an aggrieved party may wish to pursue an appeal of a Hearing Examiner’s decision even after “mediation” has occurred. Up until now, if an appeal is filed it goes to the Board of County Commissioners for public hearing. The Board’s hearing is “closed record” meaning they cannot take any new testimony. Rather the Board must decide whether or not the Hearing Examiner made any substantive errors in his or her decision or failed to give proper consideration to testimony provided or ordinance provisions. The Board cannot base its decision on whether or not they like the project or whether the opponents to the Hearing Examiner’s decision, just plain do not want the development “in their back yard.”

A key aspect and really a major change in the appeals process is a companion rider to the mediation process. Once implemented, appeals will no longer go to the Board of County Commissioners; they will go directly to Superior Court. According to DCD Director Larry Keeton, appeals of hearing examiner decision cost an applicant or the public $500.00. However, DCD’s costs can be upwards of $10,000.00. The Board of Commissioners believes the County will save money by changing the appeals process.

Aside from the cost of mediation which was to be compiled by DCD staff for presentation to the County Planning Commission it may or may not prove to be a financial savings to the County. Predictably the applicant’s costs will increase, if for no other reason than he or she must pay for or at least share in the cost of a mediator and he or she loses precious time in the “entitlement” process (the process by which all necessary permits are obtained to develop the project). DCD will still have expenses to bear as the staff will be directly involved in either “pre-hearing” mediation or that mediation recommended by the Hearing Examiner in the final decision making process.

One factor not given much weight in this new process is the “lessons learned” in the current appeal process. Other than fielding phone calls from disgruntled citizens what forum exists where the County Commissioners have the opportunity to witness first hand what works and does not when they adopt ordinances. And other than the appeal’s process where is it that the Board has direct exposure to the decision making process on proposed projects. It is too easy to pass ordinances without checks and balances for whether or not an ordinance is effective, no longer necessary, or achieves the original intent.

Absent a “sunset” review, i.e. a set period of time for the duration of an ordinance after which time its implementation process is assessed, the only hands on experience the Board gets with their ordinances is in the appeals process. Incidentally, Kitsap County does not utilize “sunset review” for their land use planning and ordinance implementation.

For those having interest in what the mediation process might mean to them, it is best to contact DCD Director Larry Keeton and attend the public hearings on the proposed changes. Regarding the public hearings, the Planning Commission will be forwarding their recommendation to the Board of Commissioners in August and the Board will likely conduct their own public hearing in September, possibly October.


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