Bill would make it harder to beat city hall - Senator's bill would affect growth hearings boards, court cases involving GMA

Skagit Valley Herald


Sen. Mary Margaret Haugen thinks local government ought to be given more respect, especially when its decisions about growth and land use are challenged.

Haugen has introduced Senate Bill 5354, which would change the legal standard by which such decisions are judged, making it harder to overturn those decisions -- maybe too hard, according to one lawyer.

The measure is one of 10 bills relating to agriculture that Haugen has introduced to the Legislature.

Currently, if a decision on growth or land use is appealed, it can be overturned only if the hearings board or court finds that the decision was "clearly erroneous." Haugen's bill would delete those two words from the law, replacing them with "arbitrary and capricious."

"You'd have to prove the county was acting that way," Haugen said about the purpose of the new terms. "I happen to think that local government is pretty responsible."

But Gerald Steel, a Seattle lawyer who has argued many cases against Skagit County's land-use policies, said "arbitrary and capricious" has a specific legal meaning. Adoption of the bill would make it nearly impossible to overturn a local government's decision, no matter how wrong it is -- or how much it violates state law.

The current standard, "clearly erroneous," means a court or hearings board must find that the decision was just obviously wrong. But to find that a decision is "arbitrary and capricious" means a court must find that the government completely ignored every piece of evidence and testimony that it had.

If the government based its decision on the testimony of one person -- even if that person was obviously wrong, and even if everybody else testified the opposite way -- it wouldn't be "arbitrary and capricious," Steel said.

"'Arbitrary and capricious' is a standard that requires a complete disregard for the facts," he said. "Certainly you can violate the requirements of the Growth Management Act without completely disregarding the facts.

For example, Steel said, if a man came to a meeting and said that people can jump so high that houses with doors 20 feet above the ground don't need stairs, and the county commissioners based a policy on that, it would be "clearly erroneous," but not "arbitrary and capricious."

"It's an inappropriate standard and I'm surprised that Ms. Haugen has suggested it," he said.

When the Legislature adopted the Growth Management Act, which controls how local governments regulate land use and planning, the standard for overturning a local decision was if a "preponderance of evidence" showed it was wrong.

"That meant if the facts weighed toward one decision, and the county commissioners made a different decision, the county commissioners could be overturned," Steel said. "Pretty much everyone agreed that there should be a higher hurdle before the county commissioners could be found to be wrong."

The current standard, "clearly erroneous," was adopted a few years ago, he said. It requires the court to "have a definite conviction that the county has acted wrongly," he said. "And that's a pretty good standard. It's pretty hard to find the county not in compliance with the act."

But Haugen said there are too many people suing governments over decisions. She said Growth Management Hearings Boards, which are quasi-judicial appointed boards that handle land-use cases to keep them from clogging the court system, are too quick to overrule local governments.

"We need to reaffirm that planning choices are to be made by local elected officials," she said.

Some legislators have proposed doing away with the hearings boards entirely, Haugen said. "I think mine is probably the mildest of many bills that have been introduced," she said.

Skagit County Commissioner Ted Anderson said he supports Haugen's bill, although he'd rather see something that would abolish the boards.

"That's what needs to happen, but I don't hold up much hope of that happening," he said.

Anderson has been a longtime critic of the hearings board system, charging that it lets a few people challenge the decisions made by elected officials representing the majority. Even when decisions are upheld -- as most of Skagit County's have been recently -- the system causes delays and costs money, he said.

Steel said the alternative is to let people appeal decisions directly to the court system, which would be even more costly and time-consuming.

Alix Foster, a lawyer for the Swinomish Tribe, which has won several cases against the county forcing it to do more to protect fish, said the bill is an overreaction that will impact everybody in the state.

"To try to change this burden because they don't like the outcome of some previous board decisions in this case is troublesome, because it doesn't affect just this case, it affects all cases," Foster said.

James Geluso can be reached at 360-416-2146 or by e-mail:

This document was modified last on Feb 04, 2003 - 11:35:54 PST


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