Radach v. Gunderson

Last year, I joined my fellow council members in rejecting an ADB application for the Old Mill Town remodel. I was accused by my opponent of exposing the city to a lawsuit. I wrote this and tried unsucessfully to get it printed.

Tomorrow, we talk about the "appearance of fairness doctrine." It sort of ties in now.

I hope you like it:


Sometimes on the council, I have to hear appeals of various development applications. Re-zones, sub-division appeals, architectural design board appeals are a few of the quasi-judicial decisions I have to make on the council.

A small set of individuals always complain if I don’t always side with a developer on these appeals. They want me to “rubber stamp” the opinion of the so-called experts: that is, staff and the developers. I say look at what happened in Ocean Shores.

A couple in Ocean Shores, Mr. and Mrs. Radach, noticed that a new house was going to built ten feet closer to the ocean than the law allowed. They went to the city and complained, but the city ignored them and allowed the house to be built.

The Radach’s took their case to court.

And the courts were not amused at the city’s behavior.

In the landmark decision, Radach v. Gunderson, the state Supreme Court ordered the house moved and they ordered the city to pay for it. Normally, courts are reluctant to hold cities financially accountable for permitting SNAFU’s, but the courts make a special exception: a city that knowingly fails to enforce codes assumes the financial consequences of not doing so.

The Radach’s told the city of Ocean Shores there was a problem, but the city would not stop construction of the house. Had the city enforced the codes as soon they knew of the problem, the city would not have had to pay, but the city chose to ignore their citizens, so the courts made the city pay to fix the problem.

Radach v. Gunderson teaches council members an important lesson: we cannot waive codes or grant special favors on land-use appeals. Therefore, if I determine that an application doesn’t meet the code, I have to deny the application regardless of my feelings, or I expose the city to great financial risk.

Some developers (just like some citizens) have a tendency towards passion, characterizing any decision that doesn’t go their way as “arbitrary and capricious”; a legal term used to describe the situation where a council makes up code on the spot, something the Edmonds city council has never done. In my time on the council, no developer has ever successfully overturned a council decision, because the council does not hold developers to standards that don’t exist.

The real problem with the council is their tendency to rubber stamp. In my second term, the council was overturned twice by courts for essentially rubber stamping decisions. In each of these cases, the majority of the council followed the advice of the so-called experts and I dissented, citing valid legal points brought up by citizens.

We can’t have a “rubber stamp” mentality on the council. A “rubber stamp” mentality can cost the taxpayers serious money, just like it did in Ocean Shores; and more importantly, rubber stamping denies the citizens of the protections they deserve.