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City board balks at extinction

For decades, Oak Harbor’s board of adjustment has served as a common-sense, quasi-judicial sounding board for property owners seeking changes in the city’s land-use codes.

In some cases, for example, land owners asked the board to grant a variance in hopes of building a house on an irregular-shaped piece of property.

In other cases, property owners asked for conditional use permits to build, say, a private club in a residential neighborhood.

The seven-member board, appointed by the mayor and confirmed by the council, looked at individual land-use cases, for the most part, leaving the bigger picture of overall zoning codes to the city’s planning commission.

But last week, the board was hastily convened for a meeting of a different kind. They were told, in essence, that their services may no longer be needed.

Or as long-term board member Hank Lounsberry put it: “We were told (the board) was being fired. You can imagine my concern.”

The council is considering replacing the board by contracting with a professional hearing examiner, an increasingly common practice among Washington’s cities and counties. Most hearing examiners are attorneys, and many have served as judges.

They bring a higher level of legal expertise in land-use cases. They also are able to shore up the recordkeeping in each case they hear, making it that much more difficult to assail in court.

City officials say the change is necessary because the complexity of land use laws has increased over the years and the cost of legal challenges to the city’s planning decisions has grown accordingly.

Few land-use cases have been brought to court against the city in the past 25 years or so, about one every other year. City Attorney Phil Bleyhl said he could remember losing only two. Still, several recent land-use cases seemed much more legally precarious in Bleyhl’s view.

“A couple of cases in the last couple of years changed my view in terms of the city protecting our interests,” he said.

The citizen board, in other words, was becoming a legal liability in the age of high-priced, land use lawsuits.

This didn’t sit well with board members, several of whom attended Tuesday evening’s Oak Harbor City Council meeting. The meeting’s agenda included an action item about the hearing examiner.

But after hearing from several unhappy members from the board of adjustment — who took turns at the microphone — council members agreed to postpone the item and take it up at the next council meeting.

Adjustment board members said as citizens they have a more intimate view of land use decisions that affect city residents.

“I can’t see an appointed attorney from out of town raising that same concern,” said adjustment board member Jim Self.

Nor were board members pleased to find they were about to be axed less than a week before the issue was placed on the City Council’s agenda.

“I hadn’t seen any discussion of this in the paper,” Lounsberry said. “There were no briefings to the board of adjustment.”

Oak Harbor Mayor Patty Cohen told the council she had staff meet with members of the board of adjustment last week to tell them the change was coming.

“This council places great value on the public process,” Cohen said.

But some council members said the city should have done a better job of informing board members their role was on the chopping block.

“What concerns me is we did not notify them,” said council member Paul Brewer. “Volunteers are hard to come by.”

Meanwhile, city officials say they have been working toward a hearing examiner system for the past two years. Contracting with a hearing examiner was part of a broader package of procedural changes in the city’s land-use regulations.

Bleyhl said he presented the issue at a council meeting last May. Another meeting was held with the city’s Planning Commission a few months later.

But no one, it seems, spoke directly to members of the board of adjustment until last week.

Bleyhl said the matter dropped from the radar screen with “the press of business.”

He noted that the City Attorney’s Office has 160 civil matters and 800 criminal cases to contend with each year.

Members of the board of adjustment questioned why they weren’t furnished with more legal training to help them keep their volunteer roles. They also wondered how much a hearing examiner would cost.

Bleyhl originally estimated the cost to be about $50,000 per year. In fact, he said, the cost should be considerably less.

He checked with other cities, such as Mount Vernon and Marysville, and found hearing examiners make about $1,000 per case.

In Oak Harbor, the hearing examiner would hear about six cases this coming year, with a maximum of about 12 cases, Bleyhl said.

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