Commissioners Tend To Closed Sessions Citizens Will Have Less Access To Land-Use Decisions

Six words spoken Tuesday by Spokane County Commissioner John Roskelley indicate that county residents now have less access to the discussions that go into land-use decisions.

“We discussed this in executive session,” Roskelley said, as he started to explain why he was voting against a zone change for 109 acres in the Spokane Valley.

Executive sessions are meetings held behind closed doors. Citizens can’t attend.

County officials say Roskelley misspoke. The meeting in which commissioners discussed the proposed Orchards at Liberty Lake subdivision was actually a “closed session,” not an executive session.

The difference is largely academic and the result is the same.

In recent years, any discussion between commissioners about a zoning issue was conducted in public. Tuesday night’s audience was not privy to the debate that went into the 2-1 vote against the controversial subdivision.

Commissioner Kate McCaslin, who voted with Roskelley to oppose the development, said Wednesday that past commissioners used closed sessions to discuss requested zoning changes. The board stopped having closed sessions sometime before she took office in 1997.

McCaslin said commissioners likely will get back into the closed-session habit to avoid giving either party in a dispute information that might be used to appeal commissioners’ decisions in court. Often during a debate, one commissioner plays devil’s advocate, raising issues for the sake of ensuring every possible argument is explored, McCaslin said.

“I might not feel comfortable doing that in public because it might be misconstrued,” she said. “People will take whatever you say and use it against you at the next level.”

Roskelley and Commissioner Phil Harris said the closed session for the Orchards subdivision amounted primarily to an opportunity for county attorney Rob Binger to advise commissioners about fine points of the law. Commissioners didn’t take a vote during the meeting, they said. to participate,” Harris said.

“If we’re going to start making decisions behind closed doors, I’m not going. State law cites only a few instances in which governing bodies can meet in executive sessions, such as the four sessions the commissioners held Tuesday. The topic for each of the four was listed on the weekly meeting schedule as “pending litigation.” Other common topics for executive sessions include pending real-estate deals and labor negotiations.

Even when an executive session would be legal, commissioners can decide instead to discuss a matter in public.

Meetings defined as “closed sessions” are more restricted than executive sessions. State law says they can be used when the board is ruling on “a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group.”

A land-use zone change is a quasi-judicial matter, since the board is acting as judge between two sides.

In the case resolved Tuesday, developer Rex Harder wanted to create 37 lots on 109 acres where small lots normally would not be allowed. County hearing examiner Mike Dempsey approved the necessary zone change last July. The Liberty Lake Property Owners Association appealed the decision to county commissioners, saying the development would pollute the lake.

In November, commissioners conducted a hearing for supporters and opponents of Harder’s request. Tuesday night, they reversed Dempsey’s decision. Between those two events, commissioners discussed the matter in private.

County attorney Rob Binger said the dispute qualified for a closed session because it was between named parties, Harder and the neighborhood group.

But the phrase “general effect on the public” suggests that a decision that could impact a public lake should be debated in public, said attorney Duane Swinton, who represents The SpokesmanReview.

Binger interprets that phrase differently, saying it applies only to sweeping changes in zoning regulations that would affect large numbers of landowners.

“You could make arguments both ways,” said attorney Bob Meinig of the Municipal Research Center in Kirkland, Wash. “Unfortunately, the language (in the law) isn’t real good. It’s not very precise and it’s subject to interpretation” that hasn’t yet been provided by the courts.

Meinig, who advises a variety of cities, said some conduct such deliberations in public and some conduct them in private.

This sidebar appeared with the story: FAST FACTS Open meetings law State law says “closed sessions” can be used when the board is ruling on “a quasi-judicial matter between named parties as distinguished from a matter having general effect on the public or on a class or group.” A land-use zone change is a quasijudicial matter, since the board is acting as judge between two sides.

danh@spokesman.com.