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HomeMy WebLinkAbout072506 . . . CITY OF PORT TOWNSEND CITY COUNCIL MINUTES OF THE SPECIAL SESSION OF JULY 25, 2006 CALL TO ORDER AND PLEDGE OF ALLEGIANCE The City Council of the City of Port Townsend met in special session this twenty-fifth day of July, 2006, at 6:30 p.m. in the Port Townsend temporary Council Chambers in the Port Townsend Fire Station conference room, Mayor Mark Welch presiding. ROLL CALL Council members present at roll call were Frank Benskin, Laurie Medlicott, Catharine Robinson, Michelle Sandoval, Scott Walker and Mark Welch. Geoff Masci was absent. Staff members present were City Manager David Timmons, City Attorney John Watts, and City Clerk Pam Kolacy. Special Council Steve DiJulio was present via telephone. Closed Record Public Hearing on Procedural Matters: Rosecrans Terrace Appeal Mayor Welch read the order of business and noted that materials had been received from Appellant Pipia after the deadline set for submittals. He stated the Council would discuss whether the late materials were admissible and then discuss the nature of the deliberations such as whether they will be done in executive session as allowed. Mayor Welch read the procedural rules for the closed record appeal hearing and noted that the appellant would receive five minutes; then a five-minute response would be allowed and finally a two-minute rebuttal. Mayor Welch noted that City Attorney Watts has recused himself from the proceedings based on a request from the appellant. Acting in his place is Steve DiJulio of the Foster Pepper law firm. Mayor Welch asked if any Council member had any disclosures to make which may show demonstrated bias or prejudice for any party, prejudgment of the issue prior to the facts on record, ex parte communication with any party, or any financial interest in the outcome of the matter. Ms. Robinson stated that Mr. Pipia phoned her a few days ago to ask if she would be present at the meeting tonight; she said she would and that was the extent of the conversation. Special Business Meeting Page 1 July 25, 2006 . Ms. Sandoval stated she received a phone call today from a citizen who wanted to discuss the matter but she did not engage in conversation. Mayor Welch asked if anyone in the audience objected to the participation of any Council member. Daryl Moegling stated he is the father of one of the partners in Strider Construction; he objected to Mr. Walker's participation based on viewing a City Council meeting where Mr. Walker sounded as though he had a relationship with Mr. Pipia when he engaged the Council and City Manager. Mr. Welch asked Mr. Walker if he has any prejudice in this matter. Mr. Walker stated he knows the appellants but that his questions for staff at the meeting referred to were substantive in nature, such as whether the Council should be determining this and staff responded that Council needed to hear all the evidence before determining the outcome. He stated he did not know if that would require him to recuse from the proceedings. Mayor Welch called on Mr. DiJulio who stated that first, it is not clear that the speaker challenging Council member Walker is a party to this appeal and has standing to raise the issue. He then stated he heard nothing in the presentation by the speaker that would indicate that Mr. Walker would have a bias or prejudice in the case as it is typical of a Council member to ask a probing question, and the fact that . those questions may be challenging is not an indication of pre-judgment. Mr. Welch stated that both parties received transcripts of the meeting and neither raised objections. Andrew Lane, counsel for Strider Development stated that the original Council motion had allowed for ten minutes for initial arguments and five minutes for rebuttal. Council agreed to revise the original proposal for time limits as indicated by Mr. Lane. Regarding the matter of late materials received (Monday morning after Thursday deadline) from Mr. Pipia, it was proposed that Mr. Pipia's argument cover both the submittal of late materials and the substance of his appeal; Mr. Lane could respond to both issues; then Council can ask questions and deliberate both issues rather than trying to bifurcate at this time. Joey Pipia: . In response to the assertion that his letter last Thursday did not address state law (land use petition act); he stated that with regard to Hearings Examiner decisions, state law is expressly inapplicable. The law's stated intention is to inform judicial review of land use revision by the local jurisdiction's body with the highest level of Special Business Meeting Page 2 July 25, 2006 . . . authority, including those with appeal. He stated the highest authority in this jurisdiction is the City Council, not the Hearings Examiner and therefore the rules do not apply decisions of the Hearings Examiner. He stated that the same standard applies to the computation of time: state law does not overrule local law. He stated that the Port Townsend Municipal Code has provisions that exclusively govern procedures for appeals of the Hearing Examiner; there is no reference to state statute because it does not apply. Mr. Pipia began to pass out written material to the Council. Mr. Lane objected. Mayor Welch stated that no new material could be presented to the Council this evening. Mr. Pi pia cited the history of correspondence, including e-mail and conversation, among parties relating to the timely filing of an appeal. Mr. Lane objected to statements he said constituted speculation about what he advised his client. Mr. Welch upheld the objection. Mr. Pipia related his experience in another matter where his appeal was filed four minutes late and stated that the Hearing Examiner ruled on that issue, and said that if he allowed the appeal to be filed even four minutes late, the court and judicial system would not look kindly on that decision. Andrew Lane, Attorney for Strider Development: Mr. Lane stated that when a motion for dismissal is filed, the burden is on the moving party to prove that the submittal was not timely; they must also prove that reconsideration does not toll the deadline. In order to prove this, they must show that the substance of the matter is that when the appeal deadline falls on a weekend. He stated there is no question that all agree the 14-day deadline fell on Sunday, May 21. Appellants are arguing that the deadline was then the Friday prior to that date. He stated that appellants are asking Council to take a view of law and procedures that is unlike anyone else has ever taken. Court rules apply the standard that if a deadline falls on a weekend or legal holiday, it is the day after the weekend or holiday, not the day before. He stated there has been no proof or examples to support the assertion that the filing deadline would be Friday. He stated he does not believe the code intends to shorten the time allowed for filing due to weekends and holidays. He stated that according to the Port Townsend Municipal Code, if reconsideration is denied, the previous action shall become final upon a certain date; this means the action is not final yet. In this case, the action did not become final until after the decision on reconsideration was filed per the regulations. If, under the original Special Business Meeting Page 3 July 25, 2006 . . . decision, the appeal date was May 19, and the revised decision arrives on May 21, it doesn't make sense to adhere to the filing date attached to the original decision. He stated that reconsideration tolls the appeal period and therefore June 5 would have been the appropriate deadline in this case. Rebuttal Mr. Pipia stated that the Port Townsend Municipal Code states that if the request is denied, the previous action shall become final; "shall" is mandatory. He asserted this does not mean that if the action is denied, the previous action becomes final on the date of the decision; it just says the previous action becomes final and that does not impact the filing deadline. He added that the appellants were so sure that reconsideration didn't stop the clock; it affected their work on an amended appeal. He stated that there are references to the RCW in the municipal code, but not with regard to the Hearings Examiner, that those references would apply just to the City Council's decision. Although the code may need changing, it must be read as written for this series of actions. Mr. Lane stated that the logical way to interpret the language in the code that states "shall become final" must be read as "shall become final in the future..." not that it has already been determined to be final. IN other words, once you receive the decision on the reconsideration, then the decision is final - not that the timeline reverts back to the date of the original decision. He then stated that state law, court rules, agency procedures, and all other cities and councils he has dealt with in the last ten years support the assumption that when an appeal deadline falls on a weekend, the deadline is the day after the weekend, not the day before. He stated the appellant has not showed evidence that convinces otherwise and has brought forward no examples of any jurisdiction that treats deadlines in the way appellants have presented. He added that as a policy decision, the Council must keep in mind that if the intent of the Code is to provide a 14-day appeal period, why would you want to give someone only 9 days in reality. Ms. Sandoval asked if there is anything in the Port Townsend Municipal Code that states a specific reference about the deadline following onto the next day as opposed to "last business day." Mr. DiJulio stated there appears to be nothing in the PTMC that defines time or provides counting rules similar to state statute. EXECUTIVE SESSION The Council adjourned to executive session for deliberations at 7:20 p.m. Special Business Meeting Page 4 July 25, 2006 . . . RECONVENE The meeting was reconvened at 8:10 p.m. Mr. Welch stated there was no decision at this time, but a decision would be announced at the regular meeting on August 7. ADJOURN There be no further business, the meeting was adjourned at 8: 11 p.m. Attest: Qz tJ, C:+~jl!c{cy Pam Kolacy, CMC City Clerk Special Business Meeting Page 5 JUly 25, 2006