County won’t waive zoning appeal fees

Opponents must pay to challenge proposed zone changes in which the beneficiaries don’t have to pay, two county commissioners said in a decision the third commissioner called “hocus pocus.”

Commissioners Todd Mielke and Mark Richard accepted Chief Civil Deputy Prosecutor Jim Emacio’s opinion that county regulations don’t allow anyone – even commissioners – to waive environmental appeal fees.

The county regulation that allows environmental review fees to be waived applies only to those that are “erroneously paid or collected,” Emacio told commissioners.

Besides, Mielke said, “We would be under-writing somebody to appeal the work of our own county staff, and that doesn’t quite make sense.”

Offering free appeals could bring government “to a standstill,” Richard said.

“This sounds like sleight of hand to me, and it gives some segments of the public the short end of the stick,” said Commissioner Bonnie Mager, who last week called for waiving fees in three appeals related to proposed zone changes.

Mager was responding to a request by Center for Justice attorney Rick Eichstaedt on behalf of clients who are challenging a zone change that would allow the McGlade’s Market restaurant at the corner of Yale and Day-Mt. Spokane roads to reopen.

Owners Shawn and Theresa Gabel closed the restaurant in January under pressure from planning officials who ruled the Gabels improperly converted a fruit stand eatery into a regular restaurant with a liquor license. The previous operation already was a “nonconforming use” that was allowed to continue under a “grandfather clause.”

Neighbors Dan Henderson, Larry Kunz, Trevert Shelley and Neil Membrey – represented by Eichstaedt – had to pay $294 to appeal an environmental review that opened the door to rezoning the restaurant’s 4 1/2-acre site from “urban reserve” to “limited development area (commercial)” zoning.

Eichstaedt asked that the fee be waived under a county ordinance that makes exceptions where land-use review fees would be “fundamentally unfair.” In this case, Eichstaedt argued, the Gabels weren’t required to pay $3,171 in fees the county ordinarily would have charged to process the change they wanted.

There was no charge because county commissioners agreed to sponsor 13 rural and six urban zone-change requests as part of an overdue requirement to update the county comprehensive plan. The county doesn’t pay to process its own requests.

Mielke said commissioners were responding to repeated delays in the first five-year update of the county comprehensive plan required by the state Growth Management Act.

“Isn’t it nice that every five years we can give out free passes to everybody who wants to develop?” Mager said. “I would hope that we wouldn’t engage in this kind of hocus-pocus in the future.”

Richard said he hopes neither the unusual procedure nor the two-year delay in updating the comprehensive plan will be repeated.

“I don’t think it’s any of our intentions to continue this forever,” Richard said.

Eichstaedt said the disputed appeal charge was listed in a fee schedule that “specifically includes the waiver provisions.”

He scoffed at the idea that county commissioners can’t waive a fee they established, and said the legal ruling fails to address the question of fairness.

However, Eichstaedt said he plans to focus on the merits of the clients’ appeal.

The county improperly declared in a single document that 13 proposed zone changes need no formal environmental review because no project application has been filed, according to Eichstaedt.

He said McGlade’s Market needs no permit; it has already been built and can reopen as soon as a zone change is approved.