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HomeMy WebLinkAboutSpecial Council May 25 1989WHATCOM COUNTY COUNCIL SPECIAL COMMITTEE OF THE WHOLE May 25, 1989 The meeting was called to order at 6 :30 p.m. by Council Chairman Don Hansey in the Council Conference Room; a quorum was present. A G E N D A Briefing by attorney on "Seacliffe Appeal" (Hearing Examiner decision A.A. 3 -89) [Meeting may take place in Executive Session, pursuant to RCW 42.30.140 (2)] The meeting took place in Executive Session, adjourning at 7 :10 p.m. SPECIAL COUNCIL MEETING ** May 25, 1989 Council Chairman Don Hansey called the meeting to order at 7 :12 p.m. in a 3rd floor Courtroom. Other Council Members Present: Absent: Tom Burton None. Emily Jackson Corky Johnson Will Roehl Dan Warner Mary Vanderpol Hansey reviewed the agenda. He noted that many people probably were present to talk about excise taxes recently imposed by the Lummi Indian Tribe on reservation residents, but that the County does not have any jurisdiction over the tribe's actions. The county may be able to escape paying a utility tax on the Lummi Island ferry, but may not be able to do anything about the other items being targeted by the tax. He said if the group had two spokespersons, they could make comments later in the evening. Hansey suggested that the ferry ordinance be moved to the top of the agenda. There was no objection. INTRODUCTION /FINAL CONSIDERATION 3. EMERGENCY ORDINANCE AMENDING ORDINANCE 86 -88 BY ELIMINATING MISCELLANEOUS PROVISION (A) [INFORMATION WILL.BE DISTRIBUTED AT THE 5- z5 -89, Page 2 COUNCIL MEETING; OBJECT IS TO RESPOND TO CITIZEN REQUESTS FOR A THIRD CREW MEMBER ON THE LUMMI ISLAND FERRY] WARNER MOVED TO ADOPT THE EMERGENCY ORDINANCE. Hansey noted that five votes were needed to carry the motion, because the Council is considering an emergency ordinance. Motion carried unanimously. Hansey said the ordinance lasts for 60 days, during which time the issue would be considered by the Council for final adoption. He then read the ordinance Into the record. OTHER BUSINESS 1. DECISION REGARDING THE APPEAL OF HEARING EXAMINER'S DECISION ON ADMINISTRATIVE APPEAL NO. 3 -89 ( SEACLIFFE, POINT ROBERTS) [INFORMATION IS ON FILE] [NOTE: IF BOTH THE ATTORNEY FOR WELSH DEVELOPMENTS AND THE ATTORNEY FOR SYLVIA SCHONBERG, ET AL, ARE AVAILABLE, BOTH SIDES WILL BE ALLOWED FIVE MINUTES EACH FOR ORAL COMMENTS BASED ON THE HEARING EXAMINER'S RECORD.] Hansey said he would make a motion to get the matter before the Council, as follows: THAT THE HEARING EXAMINER ERRED IN PREVENTING THE BUILDINGS AND CODES FROM EXTENDING ITS REVIEW PERIOD UNDER RCW 58.17.140 AND WHATCOM COUNTY CODE 21:20.130 SUB 4 FOR THE SEACLIFFE FINAL PLAT AFTER DETERMINING ITS ORIGINAL DENIAL RESULTED FROM INADEQUATE REVIEW AND MISINFORMATION. Warner asked if the attorneys should not have been asked for their arguments first. Hansey said yes, and apologized. Hansey withdrew his motion. Hansey said the Council had-contact the attorneys for both sides, and allow them five minutes each to deliver oral arguments at the meeting. Hansey asked that speakers come as close to the front table as possible, due to the placement of the tape recorder and lack of a sound system. Attorney Phil Serka was asked to present the appellant's (Welsh Development's) arguments, based on the record. Serka said he would like to dispense with oral arguments, instead answering questions posed by the Council. Stafford Smith, attorney for Sylvia Schonberg, et.al, said he would prefer to hear Mr. Serka's arguments because he would like to have full use of his own five minutes. Serka said he would go ahead and make comments. Serka said the original preliminary plat for Seacliffe was filed in 1984. His clients have spent more than $400,000 in obtaining the final plat approval, and the delay has mainly been due to the unavailability of water in Point Roberts. That problem was solved in 1988, when an agreement for water service was made between British Columbia and Point Roberts. Originally, John Tyler of Buildings and Codes had indicated that the department denied final plat approval. Later he agreed to extend the review 5- 25 -89, Page 3 period for 30 days. Buildings and Code had not even decided whether to approve the plat, Serka said. He said his argument is that the Hearing Examiner does not have jurisdiction on appeals of decisions made regarding the processing of a final plat. Roehl asked why Welsh Developments needed an additional review period, when already they'd had four years. He noted that the actual issue seems to be whether the term "additional review" means additional time for submitting information, or additional time for Buildings and Codes to look over material already submitted by the established deadline. Serka said the information must be submitted in proper form before the expiration of the review period. He said it is alright to submit additional material, but the type of material is not made clear in the law. In this case, Welsh Developments was awaiting written permission from the water district that needed to be submitted. Roehl questioned why Welsh had not secured the written permission sooner; if the permission did not accompany the final plat application by the deadline, then the application would seem to be defective. Serka said Welsh offered to provide a bond to cover any conditions that may not have been met by the application, but Buildings and Codes would not accept it. Jackson noted that according to the record, a substantial number of conditions had not been met or addressed at the time of application. Serka said that information is not on the record. He said Buildings and Codes wrote a letter that said it made an error. The Hearing Examiner has acknowledged that he can not consider whether the applicant met the conditions or not. Warner asked for more information about the Hearing Examiner's jurisdiction for examining the Buildings and Codes process. Serka said the Hearing Examiner has jurisdiction to hear administrative appeals, exclusive of long plat design and processing requirements. There was discussion, attempting to define processing requirements. Serka summarized that Welsh believes the Council 1s dealing with this matter prematurely, particularly since Buildings and Codes acknowledged its own error. Roehl asked what basis In law Buildings and Codes has for extending the time for the submission of documents. Serka said it really is not clear how much information can be submitted during a review period. He asked that the Council reverse the Hearing Examiner's decision. Stafford Smith was asked to address the Council. Smith noted that the applicant waited until the last possible date to submit the final plat application. The documentation submitted on November 14 did not meet the requirements; a technical review committee in December unanimously denied the plat because its conditions were not met. The committee wrote a three page letter signed by various officials. Smith said Serka then "went upstairs with his problem" and got a directive from Paul Rushing to have the plat reconsidered. Smith said it was a political decision to overturn the staff's decision. Even then, however, Smith said further review was granted, not further extension of time to submit new documentation. After questions from Roehl, Smith said the reversal of the technical committee's original decision was ordered based on a personal relationship. There was discussion about the time frame and other aspects of the application. Smith said the technical committee never changed its position; the "higher -ups" changed the position for the committee, without considering technical information. Smith said if someone submits technical information on the last day possible, he or she takes the chance that it won't meet an agency's standards. There was more discussion. 5- [5 -89, Page 4 JACKSON MOVED THAT THE COUNCIL UPHOLD THE HEARING EXAMINER'S DECISION. Warner said he was inclined to support Jackson's motion. He talked about the last- minute submission of information, noting that the applicant could have submitted the paperwork ahead of the deadline, thus not needed any extension if a problem was noted. RoehI said it seemed reasonable to establish a cut -off date, otherwise extensions could be granted for months in order to work out problems. If the application had been submitted earlier, the problems could have been resolved without the need for an extension. Hansey said he opposed Jackson's motion because SeacIIffe is a good project, and although the applicant shouldn't have waited until the last minute, it is not a legal basis for turning them down. He said it is not uncommon for people to wait until the last minute for such things. Vanderpol said normally when a department head speaks the Council must accept that his statements are made on behalf of the department. He did not support Jackson's motion. There was more discussion between Warner and Hansey. Johnson asked who the Council can rely on, if not its own staff people; he added that he could not support Jackson's motion. Motion to uphold the Hearing Examiner carried 4 -3, with Hansey, Vanderpol and Johnson against. There was a break in the meeting from 8 :10 p.m. to 8:20 p.m. 2. LUMMI INDIAN TRIBE'S LEVYING OF A UTILITY TAX FOR THE LUMMI ISLAND FERRY [INFORMATION ON FILE; WAS DISTRIBUTED AT 5118 MEETING] Hansey said this item was placed on the agenda so that Randy Watts, Chief Civil Deputy Prosecuting Attorney, could brief the Council on the legal ramifications the County faces in this situation. The Lummi Tribal leaders have decided to impose utility taxes within the reservation; a part of that includes the Lummi Island Ferry. Hansey noted that the Council has no jurisdiction over the utility tax, although it may have something to say about whether the tax should be levied on the ferry. He noted that several residents of the reservation were present, and informed them they could appoint one or two spokespersons to address the Council after Watts had finished. He also indicated that Andy Anderson of U.S. Rep. Al Swift's office was present. Watts said the County could contest the adoption of the Lummi's ordinance by bringing a class action suit on behalf of the citizens of Whatcom County. He explained that the County Prosecutor's Office is limited in the extent that it can take on civil cases that involve the County itself. If the tax is not complied with, and if the County is named as a defendant in court action, the Prosecutor's Office would defend the County. The only way Whatcom County would be named in a lawsuit would be if it did not pay the ferry tax, so the Prosecutor could only defend the county on that basis. Watts exp i a i n ed that the tax does not apply to the Lumm i Island ferry because: 1. The ferry is a transportation system, not a utility. 2. The dock is an extension of the highway, considered to be a road. 5- 25 -89, Page 5 3. The ferry actually operates outside of the reservation boundaries. 4. The loading and unloading takes place just outside the reservation, where the dock meets the ferry. Watts said the Council's alternatives are: 1. To disagree with Watts, and collect and pay the tax. 2. Seek declaratory action and injunction (ie., take the offensive position. 3. Indicate that the County will not collect the tax and have the tribe initiate action if it so desires (ie., a defensive position). There was some discussion of the options. JOHNSON MOVED THAT THE COUNCIL PURSUE THE THIRD OPTION. Jackson asked if it would be appropriate to send a letter to the tribe, indicating that the Council would like to seek a declaratory judgment with the tribe's assistance. Watts said that would be possible. There was more discussion. WARNER MOVED TO AMEND JOHNSON'S MOTION TO INCLUDE THAT WATTS WRITE TO THE TRIBE, TELLING THEM THAT THE COUNCIL DISAGREES WITH THEIR CONTENTION, THE COUNTY WILL NOT COLLECT THE TAX, AND ASKING THEM TO JOIN THE COUNTY IN SEEKING A DECLARATORY JUDGMENT. Johnson said he would accept the amendment if they tribe was only given a short response time. It was decided that a time limit was not necessary. Motion to amend carried. Amended motion carried. Hansey asked if any citizens would care to speak at this time. Tanya Kanderdan (sp ?) of Gooseberry Point said the taxes being imposed on the non - Indian residents of the reservation were unfair; she called it taxation without representation. She asked for Anderson's comments, since he represented the Federal Government. Anderson said due to the extensive legal issues he would not comment; he had attended the meeting only to listen. Robert Bizzone (sp ?), a reservation resident, said the tribe is circumventing the rights of private citizens by imposing this tax. Al Carr asked the Council to help the citizens fight the tax. Roehi said the County doesn't have the power to intervene. Tom Bell asked if the Lummi Tribe had sought the permission of the Department of Interior prior to imposing the tax. Watts said he had not been able to determine whether that had occurred. Earl Barber asked why some of the residents' concerns couldn't be included in any lawsuit having to do with the ferry. Watts said individual taxpayers could challenge the tax, but the Prosecutor's Office only can address what Whatcom County will or will not pay. An unidentified woman asked what her property taxes were being used for, if not to defend residents in their times of need. Watts said the Prosecutor 5- 25 -89, Page 6 must defend Whatcom County the municipal corporation, not Whatcom County the general populace. Carr spoke again, saying that unless the tribe gives non- Indians the right to vote on such decisions, the tax amounts to a violation of the citizens' civil rights. Roehl said if any further information was available or discovered, It would be passed on to interested parties. The meeting adjourned at 9:30 p.m. ATTEST: WHATCOM COUNTY WH_ATCOM COUNTY, Ramona Reeves, Council Clerk onald G. H s"y Chairman