We reviewed three appeals tonight on city council, all of them as “quasi-judicial” land-use hearings. In quasi-judicial cases, council is not allowed to take new testimony, and instead is required to make appeal findings strictly from the public record that is already captured in the project file. In this special situation, the council is not acting as a normal political body, but is instead serving the role of judges or juries (hence, quasi-judicial).
In one of tonight’s three cases, the case of the Blueberry Haven Appeal, the public record contained contested testimony about whether Kennydale Creek in the highlands flows year-round; If it does, then it is not a class 4 “intermittent creek” as the city has officially classified it, and it requires larger land-use buffers than the applicant proposed. The Hearing Examiner has already had a hearing on this decision, and he heard testimony from a representative from the State Department of Fisheries, and from numerous citizens, indicating that this was a year-round creek. But the applicant insisted if flows only intermittently, and can not support life. This is similar to the official city classification that was assigned to the creek a few years.
After 20 years of living in the highlands, I have my own observations about Kennydale Creek. To me, it appears that the creek flows year round, every year. I have never seen it stop flowing in 20 summers.
Since I have made this observation on countless walks through my neighborhood, I could not think of a way to keep from being biased by my own observation that this creek seems to always be flowing.
I have seen attorneys reject potential jury candidates based on the candidate being too intimately familiar with a location or other aspect of a case. I understand judges recuse themselves for a similar reason in some cases. Since this was a legal matter based on the existng record, not a political question, I recused myself instead of arguing my belief that this stream is always flowing.
However, I still think it flows year round.
Council Member Marcie Palmer, a resident of lower Kennydale, recused herself for the same reason (as I understand it).
I should add that I feel that my other five council colleagues (who do not live near this creek) did an honorable job of evaluating the case record, and I don’t blame them for the decision they made.
I might introduce the idea that we have a new study commissioned to once-and-for-all decide if we have an intermittent creek or a year-round creek. It probably won’t affect the subject property, but it could affect others.
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