By Marcy Stamper
The ordinances adopted last week by the Okanogan County commissioners clarify the role of the hearing examiner and the planning commission, separating the types of land-use proposals and projects each would hear.
In general, the hearing commissioner, who is under contract with the county, will now make decisions about projects like subdivisions and planned developments. The hearing examiner will also rule on conditional-use permits and variances from the county’s zoning code.
The planning commissioners will continue to hear — and advise the county commissioners on — overall county policies such as the comprehensive plan. These are the policies that form the basis for the county’s zoning code permitted uses.
Appeals: streamlined but complex
The changes approved by the commissioners that affect the appeals process for land-use decisions and review under the State Environmental Policy Act (SEPA) are more complex.
The new ordinances mean that only a decision that a project (such as a subdivision or conditional-use permit) could have an adverse impact on the environment — and thus require an environmental impact statement before final approval — could be appealed at the preliminary stage. These decisions — called a determination of significance under SEPA — would be appealed to the hearing examiner.
A determination that a project would not affect the environment could only be appealed once the decision on the project itself is finalized. These appeals will combine an appeal of the environmental review (a determination of nonsignificance) and of the approval of the project itself. They would be appealed in Okanogan County Superior Court.
The county commissioners — who used to hear all SEPA appeals — will no longer hear any appeals, following a recommendation by the county’s risk-pool insurer, according to Okanogan County Planning Director Perry Huston, who helped draft many of the changes.
The county commissioners will continue to conduct hearings on proposals like the comp plan, including both environmental review and the plan itself, said Huston. As before, appeals of these matters will have to wait until a final decision is made, and will be brought in Superior Court.
Latitude in state law
State law gives local governments considerable latitude about how to structure the process for administrative appeals, according to Annie Szvetecz, SEPA policy lead for the state Department of Ecology.
Nevertheless, the proposal to make a distinction as to when and where a decision can be appealed spurred some pointed public comment when the commissioners first considered the change two weeks ago.
Most comments came from Methow Valley residents. A common concern was that the changes could favor developers by allowing them to appeal a decision earlier in the process than ordinary citizens. Several people said the changes could encourage litigation, increasing costs to the county and to citizens.
Okanogan County appears to be sending appeals of different types of decisions through different appeals processes, said Szvetecz, who said the language in the ordinance was somewhat confusing. “The bottom line is, if people don’t understand what the appeals process is, they don’t really have an appeals process,” she said.
Combining the appeal of the decision on the environmental review with the decision on the project could streamline the process, said Szvetecz. By the same token, it could make sense to allow a determination of significance to be challenged at an earlier stage, since the applicant would probably want to appeal before doing an in-depth environmental impact statement. An environmental impact statement is required if a project would have significant environmental consequences.
But if the county affords one “pre-decisional” appeal (before the appeal of the underlying proposal), it can be efficient to allow an appeal process in all cases, said Szvetecz. “The crux of SEPA is to build in more public analysis,” she said.
“You still have the option to challenge the SEPA review — it’s just a little later in the process,” said Szvetecz.
