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Presentation to Edmonds City Council on Delay Publishing CAO

by on 12/21/2010

I am here tonight to make one request of Council. I am asking that you investigate the delay publishing of the Critical Areas Ordinance (CAO) and hold those responsible, accountable.

You have in your packet my presentation to the hearing examiner regarding Development Application of Thuesen Custom Homes, File #S-05 /SD-05-8, received by the city on March 15, 2006. As you can see in that presentation, among other things, I reference the delay publishing of the critical areas ordinance. To refresh your memories, the new CAO was passed by council on November 23, 2004, but was not published until February 10, 2005, 79 days later. The development application, referenced, was submitted on January 18, 2005.

At the time of my presentation I, and my neighbors, were aware of the delay in publishing the CAO, but were not aware that the delay publishing did not delay the effective date of the ordinance. It’s reasonable to assume that citizens of Edmonds would not understand this legal point. My question to you is, why did our city attorney, Scott Snyder, who co-signed the ordinance with the former mayor, not know that the delay publishing did not delay the effective date of the ordinance?

Publishing an ordinance is a ministerial duty only. A delay in publishing an ordinance cannot legally delay the effective date of the ordinance. In this case, the ordinance was passed by council on November 23, 2004 and became effective in December of 2004, despite the fact that the ordinance was not published until February of 2005. Council president Bernheim has been forwarded detailed research on case law which supports this conclusion.

The reason this is so important is that the developer was allowed to vest under the old CAO. If Mr. Snyder had simply informed staff that the CAO was in effect PRIOR TO Mr. Thuesen’s application date of January 18, 2005, hundreds of thousands of taxpayer dollars in litigation costs, staff time, and court costs could have been saved, and private citizens would have been spared the expense, time, and stress of the last five and a half years. In addition, a valuable resource would have been protected from the serious damage that it has sustained.

My family moved into our home near this wetland over 21 years ago. We witnessed a beautiful (approximately) 10,000-square foot-wetland that became a pond in the winter, and a home to numerous ducks, disappear into a haven, not for critters and native plants, but for noxious weeds. There is no pond in the winter. The wetland has been partially filled, cleared, and graded by the property owner.

For over five years, my neighbors and I have been involved in this stressful, contentious, legal mess that was the responsibility of the city. I am appealing to council, tonight, to finally, take the burden off of private citizens and investigate the delay publishing of the CAO. Those responsible MUST be held accountable.

From → Edmonds

One Comment
  1. Ken Reidy permalink

    Regarding the 2004 critical areas update….the following are my opinions. I am not an attorney, I have researched the laws to the best of my abilities and am of the opinion that the following is accurate.

    The City Clerk, as well as administrative staff, did not possess the legislative authority to delay the effective date of the new Critical Areas Ordinance No. 3527, or any other ordinance. The City Clerk and administrative staff could not do so merely by delaying the performance of the ministerial duty to publish the ordinance promptly. If one thinks about it, this makes simple and complete common sense. If it were otherwise, a non elected official could delay the effective date of new laws whenever they wanted to merely by delaying the performance of the ministerial duty to publish the ordinance promptly.

    The City Council is the entity vested with discretionary legislative powers. The City Clerk was assigned the ministerial duty to publish the new Critical Areas Ordinance promptly. A “ministerial” act is one that “involves obedience to instructions or laws instead of discretion, judgment, or skill.” BLACK’S, supra, at 1017. If the “ministerial act” is “mandatory, it is also termed a ministerial duty.” BLACK’S, supra, at 26. Similarly, the Washington State Court of Appeals has stated that “[a]n act is ministerial if the individual is performing a duty that is mandatory for the person to perform and there is no discretion in how that act is performed.” Willowbrook Farms LLP v. Dep’t of Ecology, 116 Wn. App. 392, 398, 66 P.3d 664 (2003).

    The City Clerk did not have the authority to delay the effective date of the new Critical Areas Ordinance No. 3527 by waiting for 79 days to publish the ordinance instead of publishing it promptly. Had the City Council, the entity vested with discretionary legislative powers, wanted the effective date delayed, the City Council would have taken the required legal steps to delay the effective date. Per Edmonds Municipal Code 1.03.030 Publication – Effective date of ordinances: Promptly after adoption, every ordinance of the city of Edmonds shall be published at least in the official newspaper of the city; provided, that the city reserves the right to publish ordinance summaries as authorized by law. The City Clerk had the ministerial duty to publish the new Critical Areas Ordinance promptly. By a long established pattern of publishing in 11 days or less, the City has established a precedent of what it considers to be “promptly”. 79 days certainly is not “promptly”. The Oxford English Dictionary defines promptly to mean “readily, quickly, directly, at once, without a moment’s delay.

    In Gutschmidt, 78 Wn. App. at 657, the court determined that a city clerk’s duties to authenticate and record an ordinance, as provided by RCW 35A.12.140, are ministerial duties. Id. at 663. Specifically, the court found that “[w]here the law prescribes and defines an official’s duty with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the performance of that duty is a ministerial act.” Id. at 662. The court further noted that when a clerk’s duty is to authenticate and record an ordinance and the statute “directing these duties is precise and definite [and] admits no discretion on the clerk’s part to test the validity, effect, purpose or constitutionality of the enacted ordinances or the adopted statutes,” then the clerk’s duties are purely ministerial. Id. at 663. The Gutschmidt court concluded that RCW 35A.12.140 “does not vest any legislative authority, but imposes ministerial duties on the clerk.” Id.

    Consistent with Gutschmidt, in 145 Wn. App. 196, CITY OF WENATCHEE V. OWENS, the court concluded that attestation, as provided for in RCW 35A.12.130, is a ministerial duty of the city clerk. As noted previously, the use of the term “shall” in the statute imposes a mandatory duty on the part of the city clerk to attest to the ordinance. Dodd, 120 Wn.2d at 14. As a result, RCW 35A.12.130 leaves no room for the clerk to independently exercise his or her discretion or judgment. Accordingly, the city clerk’s duty to attest to an ordinance is purely ministerial.

    The same concept applies to the City Clerk’s duty to publish an ordinance passed by the City Council promptly as required under RCW 35A.12.160, as well as EMC 1.03.030 . The City Clerk cannot legally delay the effective date of an ordinance by delaying the publishing of the ordinance.

    Furthermore, after determining that the city clerk’s authentication and recording duties are “purely ministerial,” the Gutschmidt court held that any failure to perform those duties does not invalidate an ordinance. Gutschmidt, 78 Wn. App. at 663-64. The court further stated:

    Irregularity in the clerk’s authentication and recording duties, at least in the case of the RCW, does not make uncertain what version of the RCW the city council adopted. If the nonperformance of required duties (ministerial acts) can invalidate the exercise of discretionary power there is no discretionary power. A legislative decision would be susceptible of invalidation (or delay) by mere nonperformance of the duty. The Washington State Court of Appeals has held that any irregularity in the nondiscretionary or ministerial duties of authenticating and recording by the city clerk cannot invalidate an ordinance enacted by the authorities vested with discretionary legislative powers.

    Id. at 663-64 (emphasis added).

    This position is supported by Eugene McQuillin, a well-established authority on municipal corporations:

    Related to Critical Areas Ordinance No. 3527, the City Clerk’s duty to publish promptly pursuant to RCW 35A.12.160, was entirely ministerial. As a result, the clerk’s failure to comply with the prompt publishing requirement of RCW 35A.12.160 did not legally delay the effective date of Ordinance No. 3527. To hold otherwise would vest powers in the City Clerk that are not provided for by statute.

    Hence, the new Critical Areas Ordinance (“CAO”) No. 3527 was effective as law sometime in early December, 2004, consistent with the City Council’s intent when they voted and passed the new CAO on November 23, 2004. I am of the strong opinion that had the City Attorney merely understood this basic Municipal law, he could have clarified this critical point early on and prevented everything. Citizens rely on the City Attorney to know these laws and the delay publishing was brought to the City’s attention long ago.

    Hence, the delay publishing Ordinance No. 3527 did not legally delay the effective date of the new critical areas ordinance. This was the act that opened the door to a massive waste of public and private resources. How the City missed this critical point is extremely difficult to comprehend.

    This is a big deal. The time has come to address why situations like this take place in Edmonds.

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