Gagged by the City Council

author : Janet Blanding topic : Friends of the Waterfront | Olympia City Council

by Janet Blanding

Who needs to hear from the public when you already have a "mandate"?

If you want to tell the Olympia City Council about how Mt. Rainier is about to erupt and we had all better put on our lava-proof hats, you will be given three minutes at the beginning of the meeting. If you want to plug your upcoming pie-eating contest or say you like the new trees on Legion Way, they’re happy to hear about it. But if you want to address important community issues being decided by the city council, you may find yourself gagged.

The proposed amendment to the city’s comprehensive plan which would change the height limits on the isthmus between Capitol Lake and Budd Inlet has generated a tremendous amount of public controversy. But the Olympia City Council will no longer allow comments about the rezone during the Public Communications portion of council meetings.

On July 15, Friends of the Waterfront activist Thad Curtz went to the Council meeting to speak about objections he had to the proposed rezone during the portion of the meeting normally earmarked for comments from the public. Before going to the meeting, Curtz asked a city planner about the rules. He was told that testimony about the rezone would be allowed, and the planner read him from the rules about public communication from the previous meeting’s agenda. But Curtz was given incorrect information. In a change from the wording on previous agendas, the Public Communications section of the agenda for 7/15/2008 read “During this portion of the meeting, citizens may address the Council regarding any item related to City business, including items on the Agenda, except on agenda items for which the City Council either held a Public Hearing in the last 90 days, or will hold a Public Hearing within 90 days.” (A public hearing before the City Council regarding the rezone is scheduled for September 16.)

Curtz chose to use his three minutes of public communication to comment on this newly disclosed policy. “The new rule means there is no space for testimony between the planning recommendation and the council hearing,” said Curtz. “It means that if you have one hearing about an important matter like this, there is half a year in which you [the city council] are unwilling to take public comments.” He described some of the difficulties citizens experienced in trying to speak against the rezone at the planning commission hearing, where the meeting room reached capacity 40 minutes before the hearing began, leaving many people unable to speak, or even listen to the hearing. Further limiting comment at council meetings after so many would-be speakers were disappointed at the hearing is an odd response. “This seems like precisely the wrong direction to go,” said Curtz. “You seem to have decided to close yourself off from dealing with the public.”

Curtz wasn’t the only one caught off guard by this change of council protocol; councilmember Karen Messmer remarked that she was surprised by the language change on the city council agenda restricting public communication. “Because [the agenda] is a public document and it has now become an official protocol, I would have appreciated some notification,” Messmer said. Referring to the isthmus rezone, she went on to say, “This issue is controversial, and people are going to want to speak. 180 days is a long time. I am not comfortable with that 180 days window now that it is represented in text as a firm policy of ours.” Mayor Doug Mah, however, was unfazed by this change; he remarked that it was “my responsibility for inserting the language. I asked the staff to make that change to reflect what I believe is current council practice.”

After some further discussion by the Council, Curtz was allowed to speak, mostly at the behest of Rhenda Strub, who felt it would be unfair to deny him the opportunity to testify, given that staff had not advised him that testimony on the issue would be restricted.

Who changed the rule, and when?

Has this pre-hearing communication restriction truly been council practice? Former councilmember TJ Johnson explained that during his tenure on the council, the policy had been changed so that comments would be closed when there had been a hearing within the previous 90 days. “The record had to close. But you can’t close the public record before you’ve had a public hearing. And that’s what they’re trying to do.” He thinks this new policy is an effort to reduce public input. “This is a council that does not want to hear from the public as much as previous councils,” said Johnson. “That is pretty clear from the way they are doing things.”

Former councilmember Matthew Green recalls the protocol similarly. “The policy that the council set when I was on the council was to close the issue if we had a hearing within the past 90 days. We wanted to hear all of the comments by the public hearing, and then basically close the issue. We never meant to restrict discussion only to the public hearing.” Green thinks this change in protocol is about more than keeping the record straight. “The new council is imposing a gag rule,” says Green. “They don’t want to listen. “

The Olympia City Council Protocols are posted online. The current protocol does indeed state that public communication excludes “items that have been the subject of a public hearing within the previous 90 days and items for which the City Council has scheduled a public hearing to be held within 90 days.” However, at the end of the protocol document is a statement that reads “Last updated: 7/18/2008.” This update, then, was posted three days after the meeting where this issue arose. The previous council protocol, posted on 2/12/08 (during the tenure of the current city council) does not mention anything about restricting public communication 90 days in advance of a hearing; instead it simply excludes, “items that have been the subject of a public hearing within the previous 90 days and items that are appeals of a quasi-judicial matter.”

Email queries to councilmembers yielded confusing results. Several councilmembers stated that they believed this had always been council practice. Cathie Butler, communications manager for the city, stated that this policy had been changed at the City Council retreat in January 2008, and she had overlooked updating the website until after the confusion arose at the 7/15/08 meeting. No councilmember, however, was willing to make a firm statement that the policy was explicitly changed at the retreat; most evaded the question, or responded vaguely. “The protocol was not changed,” wrote Craig Ottavelli in an email, “rather a needed clarification in the language was addressed.” Former councilmembers Matthew Green and TJ Johnson state that this was not the case. “The bottom line,” says Green,” is that this was not the protocol before 2008.”

Is Conversation Still Allowed?

Although zoning issues are generally not considered quasi-judicial ,concerns have been raised about ex-parte communications with interested members of the community regarding the isthmus rezone. Most councilmembers affirm that they are willing to meet with constituents on any matter, but some are beginning to exhibit reluctance to have one-on-one conversations with their constituents about this matter. At the July 15 City Council meeting, Rhenda Strub stated that “I am not by any means avoiding anyone who wants to speak about this,” but mentioned that the city attorney, Tom Morrill, advised the council to “be careful, lest you set yourself up for appeal.” In an email communication to me, Joan Machlis wrote “Although the legal issues on this one are less clear than on a single site rezone proposal, I am choosing now to not meet with individuals to discuss this issue. The reason is that I do not want to jeopardize my ability to participate in the process.” An email requesting clarification from Morrill as to whether the rezone issue was quasi-judicial was not answered.

Former councilmember TJ Johnson was puzzled by these concerns on the part of current councilmembers, first, because he did not believe the rezone fit the criteria for a quasi-judicial matter; zoning matters are not considered quasi-judicial unless an action is appealed. Even if it were, he explained, “that doesn’t prevent the council from talking to people about it. All it requires is that if there is an appeal that comes to them, they have to disclose they have had an ex parte conversation. It is just a matter of disclosure, that they’ve had the communication at that point, not that they can’t have that communication.”

Put it in an email

The council’s new mantra seems to be “put it in an email.” But not everyone has access to a computer, and many people with economic or educational disadvantages may find writing a letter difficult. Even for people without such barriers, writing or emailing the city council hasn’t always proven to be a very satisfactory method of communication. In my own experience of trying to get information about the council protocol change, I found councilmembers Karen Messmer and Joan Machlis to be promptly responsive. However, when I wrote to question the protocol change and expressed my concerns about the way the Planning Commission hearing was run, other councilmembers replied in a distinctly bristly manner. Rhenda Strub replied that “I disagree that there is any appearance ‘that both the Planning Commission and the City Council have very little regard for the feelings of the public regarding this matter.’ Furthermore, while I care very much what my constituents think about this issue, I find myself increasingly weary of hearing arguments about how they feel.” Apparently, although Strub has regard for the feelings of the public, it’s a weary regard.

Some councilmembers, including Mayor Mah, declined to respond at all. Other Olympia citizens have noted that Mah is unresponsive to email communications. Rob Richards, a local activist who has been involved with a variety of local issues, including Olympia’s Tent City, the Poor People’s Union, public campaign financing, and homeless advocacy, reports that it is difficult to engage Mayor Mah via email. Despite writing numerous emails about city business, Richards has only received one response from the mayor. Email queries to Mah regarding the plans for the September 16 hearing also went unanswered.

Some email responses are worse than silence. When real estate agent Rhonda Olnick wrote to Jeff Kingsbury about her objections to the rezone, citing factual information about condominium sales in the Olympia area which argued against the likelihood of ready sales of million dollar units, Kingsbury responded by questioning Olnick’s credentials. “I was surprised that he didn’t thank me for the factual information I provided the City Council,” said Olnick. “Instead, he attacked my character, and made it appear that since I wasn’t a realtor, I wasn’t qualified to be stating those facts.” Other email correspondents have been put off by Kingsbury’s tendency to make certain statements using all capital letters, a practice which is considered “shouting” in an email.

Heard at the Hearing?

Will opponents to the rezone truly have a chance to speak their piece at the hearing on September 16? The Planning Commission Hearing on June 24, held in the Olympia Center, left many Olympia citizens who wanted to voice their opinion about the rezone feeling frustrated and unheard. The hearing room has a maximum capacity of 277 people; more than 350 showed up for the hearing. Even people who arrived 40 minutes early were unable to enter the hearing room. Bridget Irish reported that, “I got there early, like a bunch of other people, and was disappointed that the space had filled so quickly.” But, she added, she was “surprised and excited by the size of the turn-out.” Irish waited by the door for 15 or 20 minutes, hoping more people might be allowed to enter, but when it became evident that wasn’t going to happen any time soon, she wrote a letter to the council expressing her opposition to the rezone, and left. Diana Arens had a similar experience. “Even though I arrived very early,” Arens recounted, “I was disappointed when the room reached capacity and I wasn’t able to speak or even attend the hearing. “ Downtown business owner Pit Kwiecinski also arrived well ahead of time, but was told the room was full and he could not enter. Kwiecinski went instead to the city council meeting, which was occurring at the same time, and before testifying against the proposed noise ordinance, told the council that there were a lot of disgruntled people stuck in the lobby of the Olympia Center.

An Appearance of Bias

People who were able to gain admittance to the hearing had complaints, as well. Although it appeared that the opponents of the rezone outnumbered the proponents significantly, there was no opportunity to gauge precisely how the community stacked up, for and against. In a letter to Planning Commission Chair Amy Tousley, Emily Ray of Friends of the Waterfront wrote, “Normally, one signs up to indicate interest in an issue, indicates pro or con, and THEN whether one intends to speak. You did not have a way to capture of the opinions of people who did not want to speak, nor did you ask for a hand vote to get a true sense of the division of opinion. This practice did a disservice to the many people who had a strong opinion but who did not wish to speak in that setting.” Although 142 people signed in to speak against the proposed rezone amendment and 62 signed in to speak for it, speakers were taken alternately; to be truly representative of the will of the community, time should have been weighted proportionately. Furthermore, Tousley gaveled down crowd response far more frequently for the opponents of the rezone, although this may have been partially because there was more support in the room for speakers against the rezone, resulting in louder and longer applause. Chair Tousley also enforced time limits more strictly when speakers against the rezone exceeded their allotted three minutes than she did for rezone proponents. However, when Triway’s presentation of their proposal exceeded its scheduled 15 minutes, and members of the audience began to call “Time!” as Tri Vo continued speaking, Tousley scolded audience members for their rudeness.

The structure of the hearing was also unfair for working people, since people needed to either line up hours in advance of the hearing to sign in, or send an underling to do so for them. People who can’t leave work until 5 p.m. might find themselves shut out of the process. When asked about the procedure for signing in to testify at the hearing, Olympia Senior Planner Jan Weydemeyer told me that speakers were taken on a first come, first served basis. I asked if even people like Fred King, Chair of the Capitol Campus Design Advisory Committee, a retired architect who now resides in Tacoma, drove down to Olympia in the mid-afternoon to line up early. She replied that Fred King had arrived at 4:15 and was third in line when the sign-in process began. However, in an interview with King, (page ___), he stated that he had not stood in line at all, but sent a staffer from General Administration to sign him in. While King, speaking on behalf of the committee that advises the state’s General Administration on campus design issues, presented informed and valuable testimony, there is an appearance of unfairness when the opportunity to speak at a public hearing is more readily available to people whose job standing allows either flexible work schedules or the subordinates to stand in line for them.

When the hearing ended at 10:15, many of the people who had wished to speak had no choice but to leave without doing so. This is unfortunate, as some of these silenced community members had valuable information to impart. For instance, a resident of the Cooper Crest subdivision developed by Triway Enterprises, had prepared testimony regarding the company’s poor environment record. She, and others who left without having a chance to speak, were once again asked to submit comments in writing.

“Naysayers show up more”

An initial tabulation of the written comments to the Planning Commission shows that 552 separate communications were received regarding the isthmus rezone, with 151 supporting the rezone, and 401 opposing it. These communications have been posted on the Friends of the Waterfront website where the public can read them. It is interesting to note that among the approximately 27% of the comments that are pro-rezone, many were written by people who have a stake in changing the zoning: people who have an obvious connection to Triway Enterprises (the developer who proposed the rezone amendment), people in the construction or real estate business, or downtown business or property owners who believe the completion of the Larida Passage project will benefit them financially

At the Planning Commission meeting on July 21, Commissioner Cary Retlin dismissed the fact that the majority of the communications opposed the rezone, saying, “Naysayers show up more,” adopting the moniker for opponents to the isthmus rezone popularized by The Olympian. But many people disagree, believing that people who stand to profit from the rezone show up, too. When former councilmember and Triway project manager Jeannette Hawkins sent out an email to 281 members of the local business community, urging them to write to the Commission about the project, many of them did. As Thad Curtz remarked, “It isn’t just that people might like to get business from Triway, which has forty projects in the works, including 7,000 houses and 3 million square feet of commercial and public space around Cabela’s. People in the business of developing property have a vested interest in making an extra effort to support rezoning in general, for anybody who wants to build a project.”

At the Commission meeting, Commissioner Matthew Litwin argued very aggressively in favor of the rezone, and was perceived by many people in the audience to be attempting to dominate the discussion. Until recently, Litwin served on the editorial board of The Olympian as a community representative. When an editorial was published strongly urging the Planning Commission to recommend raising height limits on the isthmus (“End the blight, raise the height”), he recused himself from the editorial board’s discussion and drafting of the editorial, because of his role as a planning commissioner. However, there was no indication that Litwin refrained from participation in The Olympian’s glowing editorial introducing Oly2012. Peter Stroble, who serves on the steering committee of Oly2012, has known Litwin since at least 1996 when, according to the Seattle Post-Intelligencer’s archives, they rowed together on the Yale Varsity Men’s Crew team. At the time the editorial was published on April 6, Oly2012 had not yet publicly stated a position on the isthmus rezone. However, in May, the group recommended changing the height limits on the isthmus to allow Triway’s Larida Passage project.

During commission deliberations on July 21, Litwin echoed Retlin’s sentiments about naysayers, and remarked that many of the communications from opponents of the rezone were “intellectually bankrupt.” Observers of the meeting, many of whom who had communicated with the Commission on this matter, were nonplussed by this characterization. Perhaps in an effort to demonstrate how intellectual bankruptcy could be avoided, Litwin studded his comments with colorful metaphors; he used the phrase “where the rubber meets the road” three times in the first hour of the meeting. Later, he perked up the discussion by using the term “mental masturbation” to describe what the Commission’s decision-making process might become if it wasn’t accomplished in the way he envisioned.

Litwin got his way. The process wasn’t mere “masturbation”: Olympia really got screwed. The Planning Commission voted 7:3 to recommend raising building heights on the isthmus, despite the overwhelming preponderance of public communication objecting to the rezone. Commissioners Larry Leveen, Roger Horn, and James Reddick voted against changing the zoning. Commissioner Sarah Ryan, who was out of the country at the time of the meeting, wrote a statement opposing the rezone and stating that she would have voted against it.

Concerns about the September 16 hearing

Now that the public’s sole opportunity to speak about the rezone is the September 16 hearing before the City Council, the stakes are high. Clearly, the venue for the Planning Commission hearing was too small, and since a large crowd is anticipated for the upcoming council hearing, adequate accommodations with regard to both space and time should be provided. When several people heard a high-ranking city official remark that, “We’re going to make it a small room because we don’t want that kind of numbers showing up,” concern was aroused, although witnesses were uncertain whether or not he was joking. Councilmember Jeff Kingsbury and city communications director Cathie Butler have since assured anxious community members that this will not be the case.

Using the council’s preferred mode of communication, email, I asked councilmember Kingsbury about this rumor, writing “How is the council working to ensure that the September 16 hearing on the rezone will better accommodate those members of the public who wish to weigh in with their opinions? I heard a rumor that city staff is planning to hold the September 16 hearing in a smaller venue than the Olympia Center.” Kingsbury assured me that “You have indeed heard ‘rumors’ regarding our council public hearing, WHICH HAS ALWAYS BEEN INTENDED TO BE IN A LARGE, ACCOMMODATING VENUE. At no time has there been any discussions that I am aware of to make it a small venue.” Butler is keeping the community abreast of details regarding meeting location and time via the city’s website News and FAQ page; she also posted a comment on Olyblog, a “hyperlocal” website, assuring the community that “the Sept 16 Public Hearing will be in a large facility - most likely the Washington Center.”

“A Timelined Protest Pen”

A number of groups have arisen to oppose the rezone and develop alternatives to huge luxury condos in this environmentally sensitive and culturally valuable area. One group, mostly comprised of twenty-somethings concerned about the effects of gentrification on downtown Olympia’s unique cultural milieu, is now calling itself “People for a Participatory City (PPC). “ One member of PPC, 19-year-old Jamie Hellerman, was dismayed to learn that she would be unable to share her thoughts on the rezone with the city council before the hearing on September 16, comparing the restriction on comment to the barricaded areas sometimes used to contain protesters at G8 summits and political conventions. “It’s a temporal free speech zone,” remarked Hellerman. “You can only comment in a timelined protest pen. It reaffirms my suspicion that the people on City Council don’t really care about people who aren’t white middle class property owners.” Another member of PPC, Jason Marrero, called the restriction “a prompt to talk about everything else that is linked to the condo proposal as other elements in the general move toward gentrification.”

Ideas Worth Hearing

Opposition to the rezone unites a wide swathe of the Olympia Community: From Nihilists Against Gentrification (NAG), who express themselves via vandalism and anonymous online statements; to the People for a Participatory City (see press statement, page ___); to the mostly retired yet tireless longtime community members who comprise the Friends of the Waterfront; to Olympia 20/20, a group that is calling for non-local professional planning intervention for downtown Olympia; to a newly forming group, called the “Steering Committee for Public Acquisition,” led by former Planning Commissioners Jeff Jaksich and Jerry Reilly, which is exploring the feasibility of a public/private partnership that would enable public acquisition of most of the isthmus. Only NAG seems to take ironic pride in being negative -- stating on Portland Indymedia that “NAG is every broken window, every shadow against your wall, every creak in your stairs, every ghost under your bed.” The rest of these groups, people whom the Olympian dismisses as “naysayers,” are actually generating positive ideas about the future of Olympia. These are ideas worth hearing. More communication, not less, is the answer to taking our city into a better future.

What Do You Think? What Do You Feel?

The council may not want to hear it, but we do! Next month, Works In Progress will be publishing 99 reasons to oppose the rezone of the isthmus (this number may be subject to expansion). What are your reasons? Please write to us at olywip@gmail.com or P.O. Box 295, Olympia, WA 98507