Chapter 1.26
CITY COUNCIL ADMINISTRATIVE PROCEDURES

Sections:

1.26.010    Procedures for filing and dismissal of closed record appeals of hearing examiner decisions under BMC 2.56.050(A).

1.26.020    Rules of decision for closed record appeals to the city council under BMC 2.56.050(A).

1.26.030    Hearing procedures for closed record appeal to city council.

1.26.040    Procedures for decisions based on recommendation of the hearing examiner or other determination of city council.

1.26.050    Rules of decision for decisions based on recommendation of the hearing examiner or other determination of city council.

1.26.060    Ex parte contact with council members.

1.26.010 Procedures for filing and dismissal of closed record appeals of hearing examiner decisions under BMC 2.56.050(A).

Closed record appeals pursuant to BMC 2.56.080 shall be as provided in this section. In the event of a conflict with procedures for appeal to city council set forth elsewhere in the Bellingham Municipal Code, the procedures set forth in this chapter shall supersede those procedures consistent with the laws of the state of Washington.

A. Unless otherwise specifically provided by this code or by RCW 36.70B.110, an aggrieved party or a city department shall file an original and two copies of the notice of appeal or other docketing request with the city council within 14 days after the date that the decision of the hearing examiner is mailed to the appellant. The notice shall contain a statement of the legal authority for bringing the matter to city council. The appellant shall also send the notice, along with procedural information provided by the city, to participants of record in the proceeding before the hearing examiner.

B. A copy of the notice of appeal shall be provided to the hearing examiner and the city attorney. City council may on its own motion or upon motion of a party to the appeal dismiss the appeal if it finds that the notice of appeal was not timely filed or that closed record review is not authorized by law. Upon joint request of the appellant and city staff, city council may also decline to hear the appeal thereby rendering the quasi-judicial process final for the purposes of judicial review.

C. A fee, as prescribed by resolution of the city council, shall be paid upon filing the notice of appeal. The fee shall not apply to appeals taken by a city department. Upon submittal of proof of payment of the fee, the hearing examiner shall cause the administrative record or portions of the record as may be designated by stipulation of the parties, to be transmitted to city council.

D. Upon transmittal of the record of the proceedings before the hearing examiner, director, commission, or board to the city council, the appeal proceeding shall be scheduled as soon as reasonably possible, but in any event, no sooner than the first regularly scheduled meeting falling after 21 days from the delivery of the record of proceedings to city council. Appropriate notice of the date and time of the appeal proceedings shall be sent to the parties who participated in the proceeding before the hearing examiner or as otherwise required by ordinance and the laws of the state of Washington. [Ord. 2002-10-069 § 4].

1.26.020 Rules of decision for closed record appeals to the city council under BMC 2.56.050(A).

A. The decision of the city council shall be based upon the record established in the hearing examiner’s proceedings, written argument submitted by the parties of record, and such oral argument as may be allowed at the discretion of the city council.

B. Discretion of Council. With regard to the matters described in BMC 2.56.050(A), the city council may affirm the decision of the hearing examiner, or modify or reverse the decision of the hearing examiner, or remand the matter to the hearing examiner with instructions for further proceedings.

C. Standard of Review. Review by the city council shall be a closed record review. Appellate review by council shall be limited to argument regarding the legality and sufficiency of the record of the proceedings before the hearing examiner and no new evidence shall be considered. The city council must affirm the decision of the hearing examiner unless the council concludes that the decision is contrary to law, or that it is not supported by substantial evidence on the record, or that the proceedings before the hearing examiner are inconsistent with the appearance of fairness. Substantial evidence on the record means that there must be credible evidence on the record sufficient to support the hearing examiner’s decision.

D. Burden of Proof. The decision of the hearing examiner is presumed to be sufficient, legal and regular. Appellant has the burden of demonstrating that the decision of the hearing examiner is contrary to law, is not supported by substantial evidence on the record, violates appellant’s right to due process or otherwise so deviates from the appearance of fairness that appellant was denied the opportunity to be heard.

E. Decision of the Council.

1. City council may modify or reverse the decision of the hearing examiner and shall make findings of fact and conclusions of law to explain its decision if it finds:

a. That the decision of the hearing examiner is contrary to law; or

b. That the substantial, relevant, and probative evidence on the record supports a decision different from that of the hearing examiner.

2. The council may remand the matter to the office of the hearing examiner if it finds:

a. That evidence in existence at the time of proceedings before the hearing examiner was omitted from the record and that a reasonable person could conclude that the hearing examiner may have reached a different decision had the omitted evidence been considered; or

b. That the record, in whole or in part, is not sufficient for the council to make a reasoned decision on the appeal; or

c. That the proceedings before the hearing examiner exhibited the absence of the appearance of fairness. [Ord. 2002-10-069 § 4].

1.26.030 Hearing procedures for closed record appeal to city council.

A. In the absence of an order of city council providing otherwise, the appellant and parties of record who are challenging the decision of the hearing examiner shall cause written argument to be delivered to council and other parties, by no later than the end of the business day of the second Tuesday before the appeal is scheduled to be heard. Written argument shall be limited to 10 pages typed, double-spaced with specific reference being made to the record where appropriate.

B. In the absence of an order of city council providing otherwise, the parties supporting the decision of the hearing examiner or who are otherwise offering argument in opposition to appellant shall cause written responses to be delivered to council by no later than noon of the Wednesday before the day the appeal is scheduled to be heard. Written argument by respondents and responding parties shall be limited to 10 pages typed, double-spaced with specific reference being made to the record where appropriate.

C. Council has discretion to dismiss any appeal upon failure of the appellant to timely submit written argument on time. Council shall disregard any argument based on the facts or evidence that is outside the record. Council may also disregard any argument that does not appropriately reference the portions of the record upon which argument is being made, or that fails to clearly specify the provision of law being argued.

D. Oral argument will be heard at the discretion of council. Unless council decides otherwise, oral argument is limited to the petitioning party and respondent and argument shall not exceed 15 minutes for each. Appellant shall argue first and may reserve five minutes for rebuttal.

E. Council may issue its determination after oral argument is heard or may take the matter under advisement. If council modifies the decision or remands the matter to the hearing examiner, such determination will be reduced to writing by the office of the city attorney as soon as reasonably practicable and upon approval by council, a notice and the written decision shall be mailed to parties of record who participated in the review proceeding.

F. The decision of the city council shall be final for the purposes of judicial appeal as provided by the laws of the state of Washington. [Ord. 2002-10-069 § 4].

1.26.040 Procedures for decisions based on recommendation of the hearing examiner or other determination of city council.

A. Upon application or submittal of the recommendation of the hearing examiner, other recommending body, or department, council shall cause a hearing date to be set as soon as reasonably practicable or as otherwise required by law.

B. Appropriate notice of the date and time of the appeal proceedings shall be sent to the parties who participated in the proceeding before the hearing examiner, other recommending body, or department, or as otherwise required by ordinance and the laws of the state of Washington.

C. Applicants or parties of record desiring to submit written materials shall cause the same to be delivered to council by no later than noon on the Wednesday before the day the appeal is scheduled to be heard. Written argument by respondents and responding parties shall be limited to 10 pages typed, double-spaced with specific reference being made to the record or other evidence where appropriate.

D. Council has discretion to dismiss any matter upon failure of the applicant to submit written materials on time.

E. Council may issue its determination after oral argument is heard or may take the matter under advisement. City council’s decision shall be reduced to writing by the office of the city attorney as soon as reasonably practicable and upon approval by council, a notice and the written decision shall be mailed to parties of record who participated in the proceeding. [Ord. 2002-10-069 § 4].

1.26.050 Rules of decision for decisions based on recommendation of the hearing examiner or other determination of city council.

The rules of decision for quasi-judicial, open-record hearings before city council as provided by BMC 2.56.050(C) and (D) or other ordinance shall be as follows:

A. Quasi-judicial decisions of the city council shall be based upon the record established in the hearing examiner’s proceedings or proceedings before another recommending body or department, oral and written testimony, evidence, and written argument submitted by the parties of record, and such oral argument as may be allowed at the discretion of the city council.

B. Discretion of Council.

1. With regard to the matters described in BMC 2.56.050(C) and (D), city council may accept the recommendation or reject the same in whole or in part. If council rejects the recommendation in whole or in part, then it shall make findings and conclusions explaining its decision.

2. For other quasi-judicial matters in which no recommendation of a director, commission, or board is part of the record, the city council shall make findings of fact and conclusions of law and shall issue its decision consistent with the same.

C. The decision of the city council shall be final for the purposes of judicial appeal as provided by the laws of the state of Washington. [Ord. 2002-10-069 § 4].

1.26.060 Ex parte contact with council members.

After a matter described in BMC 2.56.050(A) or (C) is filed for docketing with the city council for a determination on the record, or otherwise upon submittal of a quasi-judicial matter to council for determination, and until such time as the council disposes or is otherwise foreclosed from review of any such matter, an applicant or proponent, or anyone acting on behalf of an applicant or proponent, or staff witness shall refrain from communicating or attempting to communicate regarding the substance or the merits of the matter with any member of the city council. If communication or an attempt to communicate is made regarding the substance of a pending matter, the council member shall disclose the nature of the communication by no later than the beginning of the proceeding and the council member may recuse himself or herself if the member believes that he or she is unable to exercise detachment and objectivity regarding the pending matter or if the member believes that the ex parte contact has created an appearance of unfairness. The council may in its discretion dismiss any review proceeding on the basis of violation of this section. This section shall not be construed as to inhibit or foreclose communications with council members regarding purely procedural issues or with regard to any legislative issue or matter. [Ord. 2002-10-069 § 4].