Olympia council members decided this June to review their Hearing Examiner contract with an eye toward opening another RFQ “to get a gauge on the market.” This could lead to appointment of a new hearing examiner.
This is the right time to look not only at the current hearing examiner (HEX), but more importantly, to explore how the examiner interprets the city’s plans and rules to shape the community. As policy-makers and legislators, Council members need a solid grasp of how the Comp Plan and the Municipal Code play out on the ground—and the Hearing Examiner can tell them.
Hearing Examiner Mark Scheibmeir has wielded a substantial influence over the shape of Olympia for the past 8 years. Since he was appointed in 2013, Scheibmeir has approved dozens of residential developments ranging from the most consequential to the relatively insignificant.
Among the most controversial, he approved all proposed downtown market rate apartment buildings, some of which required conditional shoreline permits; he denied standing to people challenging the city’s rezone known as “missing middle;” he rejected a request that the City be required to conduct an environmental impact assessment before giving West Bay Yards a 15-year exemption from complying with new development regulations; among many less well-known subdivisions and other development approvals.
Olympia has chosen to give its hearing examiner the most discretion possible over development decisions. He has authority over public hearings for permit or other land use approvals; and he decides on appeals of staff actions or decisions. Under Olympia’s code, the hearing examiner’s decisions are final. An appeal must be submitted to the Superior Court, not to the City Council. This contrasts with Thurston County actions, where rules provide for an appeal of a hearing examiner decision to the elected County Commissioners.
Because they stand-in for elected City Council members, Hearing Examiners are appointed by Council and responsible to them for their performance. The Hearing Examiner and the City Manager are the only two city officials answerable to the City Council—the only ones they hire and the only ones they can fire.
In order to maintain their responsibility as the policy-making body, many councils require an annual report from the staff and hearing examiner summarizing the nature, frequency and disposition of matters the examiner has heard.
After being appointed in 2013, Mr. Scheibmeir didn’t meet with the Olympia City Council until 2018. There was a briefing in 2019 and again this June. These briefings lasted 40 to 45 minutes and focused on the importance of having a hearing examiner. Council members asked no substantive questions.
Mr. Scheibmeir observed in 2018 that appeals were “on the rise,” but did not discuss the significance of this. In 2021, for the first time, he provided a (3-page) written report. It enumerated his duties in Olympia and assessed the success of remote hearings. About land use issues adjudicated in 2020 and going forward, he said there was nothing much to tell, except that established neighborhoods “struggle with infill…but this is simply a by-product of urban development.”
Who is Mark Scheibmeir?
Scheibmeir is an attorney with a firm in Chehalis who in 2013 described his practice as involving primarily real estate, business and municipal contracts. He is the registered agent for a number of LLCs that own property and car dealerships in Olympia.
Scheibmeir was one of four finalists interviewed in 2013 to replace Tom Bjorgen who won a seat on the Court of Appeals. Interviewers (two Council Members, the City Attorney and a retired judge) were provided with an evaluation matrix containing criteria drafted by the staff and approved by the Council.
The first criterion was knowledge and experience, with 12 substantive areas ranging from Growth Management, SEPA and shoreline development to public works and engineering standards. Another five criteria focused mainly on legal and procedural knowledge. In response to a request for records about the selection of the new hearing examiner, the City provided application materials submitted by the finalists, but could find no trace of the interviews nor of the scoring matrix the interviewers used to evaluate the candidates.
Scheibmeir’s application listed neighboring jurisdictions where he served as Hearing Examiner, but was missing the required “method and approach” that would have covered such things as handling of public participation and conflicts of interest—issues significant for the role of hearing examiner. 1 Despite the absence of this required document, Scheibmeir was put on the full Council Consent Calendar with a unanimous recommendation, and was duly given a 2-year contract. It has since been renewed through 2022, now for an hourly rate of $225.
The Hearing Examiner’s decisions
While it’s true that the HEX has a lot of authority over how Olympia develops, he shares that power with the staff. The Community Planning and Development Department (CP&D) staff reviews all development proposals. For major land use projects, the staff makes a recommendation to the hearing examiner who is required to give “deference to the expertise and experience of the staff” in making his decision, which is final.
The staff has authority to make final decisions about certain other land-use matters, including SEPA threshold determinations. Those can be appealed to the hearing examiner. In practice, most if not all of Scheibmeir’s decisions adopt or ratify the staff position. There are no appeals from the hearing examiner to the City Council. Any appeal of a hearing examiner decision in Olympia goes to a state tribunal (Superior Court, or special state boards).
A meaningful role for the community in development decisions?
Public comment. Olympia provides for a public hearing when the HEX is making the development decision. Members of the public who take time from work or daily activities to research a proposal and submit comments should understand that neither their views nor their knowledge and experience related to a given proposal will matter.
Scheibmeir explained to the City Council this June that he cannot take into account the feelings or comments of members of the public in making his decision about a project: “it’s not a popularity contest.” He also does not report significant levels of public response with City Council Members who might take this into account when making policy.
For example, in development approvals where the staff has recommended new street connections, public comment based on community impacts is generally overwhelmingly opposed. If the Council members were made aware of this, it might prompt a reexamination of the City’s commitment to traffic flow embodied in its “connected streets” policy.
Appealing a decision. Once the staff or the hearing examiner has acted on a development-related proposal, the only recourse is to accept or to appeal the decision. The barriers to making an appeal are substantial. An appeal is costly, as anyone the Hearing Examiner rules against quickly discovers. It starts with $1000 to the City; the expenses mount from there—for transcripts, for attorneys, etc.
Once you have paid the fee and hired an attorney, your appeal might be denied before it even gets heard because the hearing examiner finds you lack standing. Generally, you only have the right to appeal if you can show that the proposed action or development personally and directly harms you. There is no avenue for demonstrating harm to a community or the environment.
The Growth Management Act ushered in a new era for land use decisions
In 2018 a group of neighbors (Olympians for Smart Development) appealed the city’s decision that changes to Olympia’s zoning code known as the “Missing Middle” would have no significant environmental impact. Scheibmeir denied the appeal, and—wrongly—informed the group that a challenge to his decision would need to be made Washington Superior Court. He cited “provisions of RCW30.70C” but that chapter of Washington laws actually establishes that appeals like the one Scheibmeir denied are made to the Growth Management Board.
This isn’t a trivial error, as the Growth Management Act of 1990 ushered in Comprehensive Plan requirements and changed the focus of certain land use appeals from individual projects to “legislative” challenges like the Missing Middle appeal. The Act created the Growth Management Board to hear appeals about whether local governments were meeting the requirements of the Act.
Of all things, a hearing examiner must be deeply versed in the distinction between development projects and legislative acts, and the role of the Growth Management Board.
When the Smart Development group took their appeal to the Growth Management Board, it found the City had violated the Growth Management Act and based its finding of no significant environmental impact on insufficient information. The Board invalidated elements of the Missing Middle rezone and directed the City to make revisions. The City rejected the Board’s instructions in favor of appealing the ruling to Superior Court. After two years, the case will be heard on November 5, 2021.
As it considers opening the Hearing Examiner position, the City Council has an opportunity to explore the role of that official, and to evaluate its own responsibilities
When the city is faced with a project that is subject to the State Environmental Policy Act, it makes an initial determination as to whether the project is likely to have a significant environmental impact. The City routinely finds that none have a significant impact. (In response to a recent request, a city official couldn’t locate anything where there was a finding of a significant impact.) Many of these findings of “no significant impact” have been appealed to the Hearing Examiner, who uniformly rules in favor of the City.
As it considers opening the Hearing Examiner position, the City Council has an opportunity to explore the role of that official, and to evaluate its own responsibilities related to that role. The community—residents, developers and professionals—has a role to play as well.
Bethany Weidner is a frequent contributor to Works in Progress.
(1) There is also an unexplained discrepancy in his letter of qualification. It states that he graduated from the University of Kansas with a Bachelor of Science in Business Administration in 1987 and then moved to Washington to “attend the U.W. Law School and graduated from there in 1981.” Did Mr. Scheibmeir graduate from the University of Washington Law School six years before he received an undergraduate degree? A typo possibly, but worrisome in a letter of application from an attorney.
Ongoing monitoring by the City Council is basic to the HEX system
It should be remembered that every decision [by the hearing examiner] is governed by the applicable land use policies and code standards that are adopted by—the city council!
To that end, a council’s time and attention to land use matters is best invested in adopting clear and effective policies and codes that govern all permits, including quasi-judicial ones.
Several cities also require an annual report from their staff and hearing examiners summarizing the nature, frequency, and disposition of quasi-judicial permits.
Such ongoing monitoring enables them to identify land use policies or standards that should potentially be revised. By playing this legislative role, a role for which they are uniquely suited and which only they can play, a city council can more effectively provide needed direction to the development of their community without exposing the city to needless financial risk.
—from the article Should Legislative Bodies Conduct Quasi-judicial Hearings, Joseph Tovar, August 2016, available at MRSC