Commentary: SMP Bainbridge Island SMP Public Notice

CITY FAILURE TO OBSERVE SMP PROCEDURAL REQUIREMENTS FOR THE PUBLIC HEARING SCHEDULED FOR NOVEMBER 20, 2013

From: Linda Young lawfulpatterns@msn.com
To: City Council

1. City Failed to Give Notice Required by BIMC 16.12.400

The City’s November 8, 2013 notice of public hearing on the amendment of the current SMP is inadequate because it failed to adhere to the requirements of BIMC 16.12.400 and RCW 90.58120 for the amendment of the current SMP. The first sentence of BIMC 16.12.400 specifies: “The provisions of the master program may be amended as provided for in RCW 90.58-120…”

The SMA reads in relevant part as follows:

Prior to the adoption… of a master program, or portion thereof…, at least one public hearing shall be held in each county affected by a program or portion thereof for the purpose of obtaining the views and comments of the public. Notice of each such hearing shall be published at least once in each of the three weeks immediately preceding the hearing in one or more newspapers of general circulation in the county in which the hearing is to be held.

(RCW 90.58.120 (1), emphasis added) Echoing this State requirement, the second paragraph of BIMC 16.12.400 reads as follows:

The city council shall approve, modify, or deny… an amendment after conducting at least one public hearing to consider the proposal. Prior to conducting the hearing, the city shall publish notice of the hearing a minimum of once in each of the three weeks immediately preceding the hearing in one or more newspapers of general circulation in the area in which the hearing is to be held. (emphasis added)

State SMP and GMA procedures allow only amendments to existing master programs; despite Ordinance 2013-34 referring to a repeal of the existing SMP, State law does not allow repeals. Resolution 2013-10 referred to the SMP Update as an amendment to the existing SMP. Planning Department head Kathy Cook refers to it repeatedly as an amendment in her memorandum to the City Council dated Nov. 8, 2013, as do the various attachments to that memorandum. The proposed definition of “Existing Development” in Attachment “D” of the agenda packet refers to the 1996 SMP as being amended by this proposed 2013 ordinance. And, as final proof that this is an “amendment,” there is the very process by which the SMP Update was created. The existing SMP was used as the foundation and it was marked up with changes; as a result, some parts of the new document remain unchanged, while other parts are new. In short, the proposed SMP Update constitutes an amendment to the existing SMP and, therefore, under RCW 90.58.120 and BIMC 16.12.400 there must be three weeks’ prior notice before a public hearing can be held prior to any adoption by City Council.

It should also be noted that this notice period should accommodate the requirements of BIMC 2.14.020 such that the hearing be held a minimum of 10 days after the last newspaper notice, so as to allow people sufficient time to review the related documentation. To do otherwise would be to deprive an individual who has only just learned about the public hearing on the final publication date, of his right and ability to make comments.

2. Public Comment Cannot be Restricted at This Last Public Hearing; All Comments Must Be Allowed – Especially on Parts of the SMP Update On Which There Has Never Been Public Comment and any New Issues That Might Arise.

As for the notion expressed in the agenda packet that comments at this final public hearing would be restricted to only those that relate to Ecology’s changes or staff’s suggested changes, the State does not permit such a restriction. While the City may restrict the amount of time that a particular speaker has at this hearing to a reasonable time period, the DOE Guidelines do not envision or, clearly, permit such restriction. The Guidelines provide as follows:

Additional meetings may be necessary if the public hearings provided the county or city with new evidence or information may wish to consider. If during deliberation, the county or city legislative body identifies new information for consideration after the record of adoption has been closed, then it must provide further opportunity for public comment so this information can be included in the record.

(WAC 365-196-600(8)(c), emphasis added. This provision is squarely in the context of what is intended to be the final public hearing before a vote on an amendment; yet it refers to new information that may have been introduced during that hearing. The conclusion is inescapable that the intended-to-be-final hearing must allow even public comment on entirely new evidence or issues.

In the context of this particular SMP draft, there are parts of it – such as most of the appendices – which were never even presented or made available to the public as a proposed SMP rule or regulation, let alone as the subject of public comment. By attaching these documents as appendices to the SMP, the City has made them a part of the SMP. In addition, there were changes made to the SMP that were never ‘presented’ to the public in a manner that would bring anyone’s attention to them. (See below re the March 13, 2013 City’s 17-second ‘introduction’ of the new Section 7 on ‘crimes and punishments’ after more than 5 hours of previous testimony.) These things must be the permissible subject of public comment; to prohibit this would be a gross violation of public participation requirements. It would mean that the City is passing substantive parts of legislation without allowing any public comment on them.

Appendix “A” is inadequate to allow public comment inasmuch as so large a map fails to provide the level of specificity needed for people close to boundaries to know in which designation their home falls. Without knowing what ‘zone’ they are in, people don’t know what regulations apply to them and cannot provide good comments as to how these regulations will impact them. Given that WAC 173-26-110(3) requires that the City provide both a map of the designations and “corresponding boundaries described in text,” it is incumbent upon the City to provide that same level of detail to the people who are actually affected by the regulations they pass for that particular designation.

The entire Appendix “B” (on “Critical Areas”) – as presented to the public by an attachment to the previous public hearing notice of October 18 was underlined – one would assume to indicate that this was all new material compared to what the public saw for the first and last time in April 2012. But in what way was it different? And now, the odd-numbered pages of Appendix “B” indicate that they contain changes made on November 8, 2013, whereas the even-numbered changes indicate that they contain changes made on November 13, 2013. But none of the Appendix “B” pages are redlined to indicate what precise changes were made and where; and there is no matrix to facilitate public review of those changes. Without doing a line-by-line comparison of this 48-page document (in the current draft), the public has no way of knowing what was done to Appendix “B” between April 12, 2012 and November 13, 2013. Incidentally, changes made on November 13th would mean that what was first available to the public starting November 8th or 10th was actually changed during the 10-date notice period – making it a moving target during the comment period, which is completely unacceptable for legal purposes.

Appendix “C” consists of a number of memoranda: one from Libby Hudson and Ryan Ericson to the City Council, with attached memoranda from Herrera Environmental Consultants – one dated August 2, 2011 and one draft memorandum dated August 31, 2011. This appendix has never been presented to the public as a proposed SMP amendment; it unclear whether it was otherwise ever available to the public. At a minimum, Appendix “C” was not part of the April 12, 2012 draft, the May 8, 2013 draft, the May 15, 2013 draft, or the final “Transmittal Draft to the DOE” – at least not in anything the public was allowed to see. So it must be subject to public comment if it is to be part of the SMP regulations affecting people.

As for Appendix “D”, the “Single-Family Residence Mitigation Manual”, while this was referenced in the body of the SMP drafts, it only appeared on the City’s website on October 29, 2013 – which was after the public was given the October 18, 2013 SMP draft for the subsequently-cancelled October 30th public hearing. Appendix “D” was not part of any SMP draft made available to the public prior to October 29, 2013. Even now, there is a question as to whether Appendix “D” is in final form; in “Appendix ‘A’” to Appendix “D” [sic] there is a reference to a supposedly-included list of permissible native plants, but no such list appears either in the body of “‘Appendix ‘A’” to Appendix “D” or as an attachment to either of these. Many an avid gardener lives on Bainbridge and would like to know what they can, and cannot, put in their garden – especially when the penalty for planting non-native vegetation is removal of that vegetation and replanting with native vegetation, which makes the prior activity a waste of time and money.

Appendix “E” – “Special Area Maps” was never presented to the public as part of any proposed SMP draft until it appeared with the October 29, 2013 SMP – once again, after the notice to the public was sent out on October 18th. It is unclear whether it was ever otherwise available to the public. It did not appear as part of the drafts of April 2012, May 8, 2013, May 15, 2013 or the Transmittal Draft to the DOE – at least not as they were presented to the public.

In addition to the appendices, Ordinance 2013-34 has introduced 27 pages of new material in the form of attachments, consisting of revisions to the other City codes that result from the SMP changes. Once again, this is very difficult, technical reading. But these are things the public may nevertheless want to read; certainly, the City has a legal obligation to give them the time to do so. Also, while the ordinance contains Attachments 2-4, it fails to contain an Attachment 1; what is this meant to be? And, could the public please see it?

And, could the public please have the May 8, 2013 SMP Draft back up on the City website? By removing that draft from public view, the City has violated State law on not only public participation, but also on open meetings and transparency of government. The removal of the May 8th draft makes it impossible for people to meaningfully review changes to the last draft they knew – that of May 8th . The November 8, 2013 draft is acknowledged in its footer to include numerous changes from the last draft seen by the public – that of May 8, 2013. While the new draft has notations, there are undoubtedly a lot of people who would like to be able to compare the full prior text to the new language. The public has a right to be able to compare these drafts. They are also entitled to see how the changes proposed in the City’s latest matrices would fit within the language they knew before. The May 8th SMP draft is a part of the official record of the SMP and the City has no authority to remove it from the website. To the extent that the City removed the draft from public view because, as was suggested by rumors, it was attracting too much attention, this is a completely unlawful action for which the City should be held to account.

3. City Fails to Provide Summaries and/or Explanations of the New and/or Completely Revised SMP Appendices and Ordinance Attachments, as Required by the DOE Guidelines.

The DOE Guidelines specifically require that, when a city is amending or adopting an SMP, “at a minimum” that city must do a number of things, one of which is to include along with the public notice “A statement or summary of the proposed changes to the master program.” WAC 173-26-100.

While the City prepared summary matrices of changes to the body of the new SMP, the City failed to provide any summary or explanation of all the other materials that will become a part of the final SMP and the other City codes. All of these materials – the appendices and the attachments to Ordinance 2013-34 – are extremely technical and difficult to understand for the lay person. As such, it is not unreasonable to require that the City prepare some basic, easy-to-understand summaries or explanations, as required by the DOE regulations. Such summaries would facilitate an intelligent discussion by the public of the entire content and impact of the SMP.

4. City Must Allow Time Between Public Hearing and City Council Action on the SMP.

The DOE Guidelines provide as follows:

Adequate time should be provided between the public hearing and the date of adoption for all or any part of the comprehensive plan to evaluate and respond to public comments…

WAC 365-196-600(8). Admittedly, this provision is a recommendation by the department and, in accordance with WAC 365-196-600(1)(c) “errors in exact compliance” can be disregarded “if the spirit of the procedures is observed. However, in the City’s case, there is a great deal of evidence that the spirit of public participation throughout the SMP process has been more than a little lacking.

There are several specific examples that are perhaps most reflective of the City’s unfriendly attitude towards public participation that is critical of the SMP: (1) the City Council and City staff making substantive changes to the SMP following the last public hearing and before transmittal to the DOE, thereby precluding any public input on those changes; (2) the City’s incredibly short 6-page matrix that purports to “respond” to more than 800 pages of public comments from 112 different people, which left unaddressed dozens and dozens of issues raised by Bainbridge citizens; (3) the City’s 17-second vague reference to the new Section 7 that was buried in an agenda packet (further comment below); and, now, (4) the removal of the May 8th draft from the City’s website while all other prior drafts remain – possibly because certain people thought that it being available to the public was attracting too much criticism. The City’s attempt to restrict comments at the upcoming public hearing fall within the same failure to observe the “spirit” of public participation. Given this history, procedural requirements should be strictly enforced by the State against the City.

One particular issue on which the public is most interested to express its views is Section 7 – Violations, Enforcement, and Penalties. As you know, this section was ‘made available to the public’ in a completely unique manner – not as all other new provisions of the SMP Update were introduced. It was not presented to the public as a redlined part of a new draft at a public hearing.

The new Section 7 was not listed on the main agenda for the meeting; it was buried 8 pages down in the agenda packet not for the meeting, but below the agenda for the study session portion of the meeting, after lengthy summaries and matrices attached to a memorandum from Kathy Cook on March 13, 2013 in which she recommended that the City Council not delve into the mire of all the tedious provisions of the SMP, as the Planning Commission had done, but rather confine itself to issues of historical interest to the public. And so the agenda and the meeting did.

However, this strategy ignored/failed to emphasize certain important facts. First, the Planning Commission had never seen this new Section 7 – while there was a short one-liner to this effect on page 5, this should have raised, in the minds of City staff and the Council, the need for giving this new section extra airing before the public. And, since it was newly created, the public had never seen this new Section 7, so extra attention should have been drawn to it. And, lastly the City’s ostensible assumption that the public would not be interested in ‘crimes and punishments’ – to which all shoreline residents could be subjected – was either wrong through lack of consideration or it was duplicitous. The only time the City verbally made mention of this new, extremely punitive section was at the tumultuous April 10, 2013 meeting following the public march of roughly 200 people to City Hall protesting use of the “nonconforming” label. After more than 5 hours of meeting, City staff asked if the City Council had any problems with the new Section 7 and two female members of the exhausted City Council responded “Looks fine” and “Pretty straightforward.” (Media library videotape, April 10, 2013 meeting, at hour, minute and seconds into the meeting 5:47:10 to :28.) So, three lines in seventeen seconds at nearly midnight: that was the entire presentation of this very thorny issue to the public and the only ‘consideration’ given to this section by the City Council. This leads one to question: why was the discussion of such a critical and potentially controversial section put at the very end of a long city council meeting?

Whatever the motives behind the ‘presentation’ of this new section to the public, buried as it was in a sub-link of the March 13th agenda, the public was totally unaware of this provision until long after the final public hearing on May 8th and submission of the SMP to the State in June. It was only in late summer, that just some of the public became aware of Section 7 because they happened to read an internet article by someone who had just discovered it in the May 8th draft, with no redlining or other mark distinguishing it from the previous entire draft. So, after the last entire draft seen by the public – from April 12, 2012, Section 7 suddenly appeared a year later, seemingly out of thin air, in final unmarked form in the May 8th draft with no clear explanation of where it came from, or why it had not been raised as a topic for public discussion. And yet it includes penalties as great as $1,000 a day, the placing of a misdemeanor on someone’s record and up to 90 days in jail. And this is all for doing something as innocuous as pulling out a few dead plants in your existing garden without City pre-approval and immediately replacing them with native vegetation. This is something the public wants to comment on. After the City having so effectively hidden this new section from public scrutiny for so long, is it now really going to restrict comments at this final public hearing so as to, once again, avoid discussion of SMP ‘crimes and punishments’?

5. Staff Recommended/Suggested Changes and New/Revised Appendices and New Ordinance Attachments Must Go Through the DOE Public Comment Process.

The State mandates that all parts of a proposed SMP be subject to public comment through the DOE process of WAC 173-26-120, even though they may have already been the subject of public hearings and public comment at the local government level. While changes required and recommended by Ecology fall outside this stricture, this principle must be applied to language and materials that were not added to the SMP until after the last public hearing on May 8, 2013, as well as any “staff recommended” or “staff suggested” changes put forward at the present date. The DOE 30-day public comment period gives the people whose lives will be affected by the language and documents – which become part of the City’s SMP regulations – a fair amount of time in which to carefully review and submit comments on them to Ecology.

The Ecology process requirement serves the very legitimate function of mandating that careful consideration be given public concerns by both the municipality and the DOE, and mandating that both give considered responses to those comments. Under Washington public participation law, the public is entitled to meaningful response from their governments. This bedrock of Washington law would be completely thwarted if the City of Bainbridge Island were allowed to avoid the DOE process contained in WAC 173-26-120 with respect to language not seen by the public prior to submittal to the State. In short, bad behavior on the part of the City would be rewarded.

As applied to the immediate situation, this DOE Guidelines requirement means that all the new-to-the-public “staff-recommended changes” and “staff-suggested changes” that the City wishes to include in its final SMP Update, as well as all the appendices thereto and the attachments that form a part of Ordinance 2013-34 enacting SMP-related changes to other city codes, must be subjected to the same DOE process set forth in WAC 173-26-120 as the portions of the SMP which the public had seen prior to May 8, 2013.

Thank you for your attention to these matters.

Sincerely,

Linda J. Young, Esq.