Chapter 2.56
HEARING EXAMINER

Sections:

2.56.010    Purpose and creation.

2.56.020    Appointment – Term.

2.56.030    Qualifications.

2.56.040    Conflict of interest – Freedom from improper influence.

2.56.050    Powers and jurisdiction.

2.56.060    Annual report and meeting with city council.

2.56.070    Procedures.

2.56.080    Appeals to city council.

2.56.090    Fees.

2.56.100    Pending applications.

2.56.010 Purpose and creation.

Recognizing the need:

A. To provide an efficient and effective administrative adjudicatory system for acting upon quasi-judicial matters and for review of contested administrative determinations;

B. To ensure, to the extent possible, that quasi-judicial administrative decisions are made in a fair and impartial manner; and

C. To ensure that the principles of due process and appearance of fairness are adhered to in regard to quasi-judicial matters.

The office of hearing examiner is hereby created under the authority provided by Article 11, Section 11 of the Washington State Constitution and Chapter 58.17 RCW in order to best satisfy these needs. The office shall be independent of city departments, boards and commissions and shall be responsible for impartial administration of administrative hearings in accordance with the provisions of this chapter. The term “hearing examiner” shall include the hearing examiner pro tem. [Ord. 2000-05-023].

2.56.020 Appointment – Term.

The hearing examiner shall be appointed by the mayor, with the concurrence of not less than four members of the city council, for an initial term of two years. Reappointment shall be for a term of two years. The hearing examiner may be removed from office during a term by the mayor with the concurrence of at least four members of the city council only for just cause. One or more hearing examiners pro tem may be appointed by the mayor, for such terms as may be specified at the time of appointment, to serve in the case of a conflict or absence of the hearing examiner.

The hearing examiner shall be exempt from civil service. [Ord. 2014-09-054 § 1; Ord. 2002-07-050; Ord. 2000-05-023].

2.56.030 Qualifications.

The hearing examiner shall be appointed solely with regard to qualifications for the duties of such office and shall have such training and experience as will qualify the hearing examiner to conduct administrative quasi-judicial proceedings, including at least five years’ experience in land use planning and law. The hearing examiner shall be an attorney, or possess such other qualifications as may be specified by ordinance. [Ord. 2000-05-023].

2.56.040 Conflict of interest – Freedom from improper influence.

The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing examiner has a direct or indirect personal interest which might exert such influence upon the examiner that might improperly interfere with the decision-making process. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict and the examiner shall abstain from any further proceedings in the matter unless all parties agree in writing to have the matter heard by that hearing examiner.

No person shall attempt to interfere with or improperly influence the hearing examiner in the performance of designated duties. This provision shall not prohibit the city attorney from providing legal advice to the hearing examiner. [Ord. 2000-05-023].

2.56.050 Powers and jurisdiction.

The hearing examiner shall have the power to receive and examine available information, conduct public hearings and prepare a record thereof and enter decisions as provided by ordinance.

A. The decision of the hearing examiner on the following matters which shall be within the jurisdiction of the hearing examiner notwithstanding any other provision of the Bellingham Municipal Code shall be final unless such decision is appealed to the city council as provided in this chapter:

1. Applications for preliminary plat approval for subdivisions exceeding nine lots under Chapter 18.16 BMC;

2. Applications regarding five- to nine-lot cluster subdivisions and two- to four-lot cluster subdivisions with density bonus under BMC 18.32.050;

3. Variances from the terms of BMC Title 18 relating to preliminary plats, two- to four-lot cluster subdivisions with density bonus, and five- to nine-lot cluster subdivisions.

B. The decision of the hearing examiner on the following matters which shall be within the jurisdiction of the hearing examiner, notwithstanding any other provision in the Bellingham Municipal Code, shall be final, subject only to judicial challenge:

1. Appeals provided for in BMC 4.74.155 (admission tax) and BMC Title 6 (business taxes, licenses and regulations), except only as specifically provided by this code with respect to cable, utility, and telecommunication franchises under Chapters 6.17 and 6.70 BMC;

2. Appeals of determinations of the parks and recreation director provided for in BMC Title 8 or Chapter 13.40 BMC;

3. Appeals and applications provided for in BMC Title 10 (criminal code);

4. Appeals as provided by BMC 11.38.090 and hearings related to towing and impoundment, pursuant to Chapter 11.18 BMC, subject to appeal as provided by BMC 11.18.040 and 11.18.050;

5. Appeals of determinations and variances by the public works director or other decision-making body or board provided for in BMC Title 13 and Chapter 19.06 BMC (traffic impact fees);

6. Applications for variances and other determinations by the hearing examiner as provided for in BMC Title 13;

7. Appeals of the interpretation and/or decisions of the public works department regarding latecomer matters as authorized in BMC 14.02.180;

8. Appeals from the decisions of the utility hearings board relating to water and sewer services as provided by BMC 15.04.120;

9. Unless otherwise provided by law, appeals as provided in BMC Title 16, including but not limited to appeal decisions assigned to the hearing examiner in Chapter 16.20 BMC, Environmental Procedures;

10. Shoreline conditional use applications; provided, that the procedures for decision and appeal shall be as contained in Chapter 21.10 BMC;

11. The following matters as provided by BMC Title 18:

a. Appeals from determinations of the planning director regarding lot line adjustments under Chapter 18.10 BMC, and short subdivisions under Chapter 18.12 BMC including two- to four-lot cluster subdivisions;

b. Appeals from decisions regarding general binding site plans under BMC 18.24.040;

c. Applications for two- to four-lot cluster subdivisions with hearing under BMC 18.32.060(B);

d. Applications for minimum lot size exception under BMC 18.36.020(A)(4)(c);

e. Variances relating to lot line adjustments and short subdivisions including one- to four-lot cluster subdivisions;

12. Applications for conditional use permits pursuant to Chapter 20.16 BMC, and adaptive use permits pursuant to BMC 17.90.080;

13. Applications for variance pursuant to Chapter 20.18 BMC;

14. Appeals from decisions relating to permits, administrative determinations, and interpretations of the planning director provided for in BMC Title 20 and BMC 17.82.030;

15. Applications for co-housing developments pursuant to BMC 20.10.048;

16. Appeals of orders, decisions, or determinations made by the building official relative to the application and interpretation of the city’s building, residential, existing building, electrical, fire, mechanical, fuel gas, plumbing, or property management codes.

C. On the following matters, which shall be within the jurisdiction of the hearing examiner notwithstanding any other provision in the Bellingham Municipal Code, the hearing examiner shall enter findings of fact, conclusions of law, and recommendations to the city council:

1. Formation of a local improvement district.

2. Approval of local improvement district assessments.

a. After the hearing examiner conducts the assessment roll hearing, he or she will reduce his or her findings and recommendations to writing and file the written report with the finance director. Within five business days of receiving such report, the finance department will mail notice that the report has been filed to any person who filed a written protest at or prior to the public hearing on the assessment roll, in accordance with RCW 35.44.080. A copy of the hearing examiner’s report will be available to the public in the office of the finance director.

b. Upon receipt of the hearing examiner’s report of his or her findings and recommendations, the city council will review the same. As soon as all timely appeals from the findings and recommendations have been decided or the time allowed for filing appeals has expired with no appeals having been filed, the city council may accept the assessment roll as prepared, or may correct, revise, raise, lower, change or modify the roll or any part thereof, or may set aside the roll and order the assessment to be made de novo, and at the conclusion thereof, confirm the assessment roll by ordinance. If an appeal has been filed from the findings or recommendations of the hearing examiner, it shall be heard and determined and the results thereof incorporated into the assessment roll before it is confirmed.

c. An appeal may be filed only by a party who timely submitted a written objection to the assessment roll at or prior to the assessment roll hearing. The notice of appeal shall state clearly (i) the number of the local improvement district, (ii) the appellant’s name and address and of the appellant’s attorney or other agent, if any, (iii) address and assessor’s parcel number of property to be assessed, (iv) the recommendation being appealed, (v) the error of fact, law, or procedure alleged to have been made by the hearing examiner and the effect of the alleged error on the recommendation, and (vi) state the redress sought by the appellant. The notice of appeal shall be filed, together with a fee of $250.00, in accordance with BMC 1.26.010(A).

d. The city council will set a time and place for a hearing on the appeal before the city council, provided the time shall be as soon as practicable in order to avoid accumulating additional interest on the obligations of the local improvement district. Notice of the time and place for the appeal proceeding shall be sent to the appellant.

e. Review by the city council on appeal shall be limited to and shall be based solely on the record from the public hearing; provided, however, that the city council may permit oral or written arguments or comments when confined to the content of the record of the hearing below. Written arguments will not be considered unless filed in accordance with BMC 1.26.030(A). No new evidence may be presented.

f. In respect to the matter appealed, the city council may adopt or reject, in whole or in part, the findings and recommendations of the hearing examiner or make such other disposition of the matter as is authorized by RCW 35.44.100 and subsection (C)(2)(c) of this section. The city council will reduce its determination to writing, file the original in the record of the local improvement district, and transmit a copy of the same to the appellant. No ordinance confirming an assessment roll may be enacted by the council until all appeals to the council are decided.

g. Any appeal from a decision of the city council regarding any assessment may be made to the superior court within the time and in the manner provided by law.

3. Formulation of latecomer preliminary assessment reimbursement areas and amounts as provided in BMC 14.02.070.

4. Petitions for street and alley vacations.

D. Notwithstanding provisions of other chapters of the Bellingham Municipal Code the following matters shall be determined by the city council. Council may in its discretion refer any of the following matters to the hearing examiner for a recommended decision:

1. Applications for utility and telecom franchises as provided by Chapters 6.17 and 6.70 BMC;

2. Expansion of existing water and sewer service zones outside the city limits as provided by BMC 15.36.030;

3. Appeals from determination of the city attorney on applications for remission and mitigation of civil penalties relating to stormwater management pursuant to BMC 15.42.070(D)(2)(d).

E. In the performance of duties prescribed by this chapter or other ordinances, the hearing examiner may:

1. Administer oaths and affirmations, examine witnesses, rule upon offers of proof, receive relevant evidence, and conduct discovery procedures which may include propounding interrogatories and taking oral depositions pursuant to Washington State Court Rules; provided, that no person shall be compelled to divulge information which he could not be compelled to divulge in a court of law;

2. Upon the request of the planning department or any party, or upon the hearing examiner’s own volition, issue and cause to be served subpoenas for the attendance of witnesses and for the production for examination of any books, records, or other information in the possession or under the control of any witness; provided, that such subpoena shall state the name and address of the witness sought, and if for the production of books, documents or things, shall specifically identify the same and the relevance thereof to the issues involved;

3. Regulate the course of the hearing in accordance with this chapter and other applicable ordinances;

4. Hold conferences for the settlement or simplification of the issues by consent of the parties;

5. Dispose of procedural requests or similar matters;

6. Take any other action authorized by ordinance.

In case of failure or refusal without lawful excuse of any person duly subpoenaed to attend pursuant to such subpoena, or to be sworn, or to answer any material and proper question, or to produce upon reasonable notice any material, books, records or other information in his possession and under his control, the hearing examiner may invoke the aid of the city attorney who shall apply to the appropriate court for an order or other court action necessary to secure enforcement of the subpoena.

F. The hearing examiner is hereby empowered to act in lieu of the board of adjustment, the city council, the planning commission and such other officials, boards or commissions as may be assigned for those matters listed in subsections (A), (B) and (C) of this section. Wherever existing ordinances, codes or policies authorize or direct the board of adjustment, or other officials, boards or commissions to undertake certain activities which the hearing examiner has been assigned, such ordinances, codes or policies shall be construed to refer to the hearing examiner.

G. The hearing examiner may include in a decision any conditions of approval that are necessary to ensure that the proposal complies with all applicable code criteria and comprehensive plan policies and does not adversely affect surrounding properties. [Ord. 2016-09-034 § 2; Ord. 2015-12-053 § 4; Ord. 2011-09-053 § 1; Ord. 2009-04-010; Ord. 2005-08-066; Ord. 2003-03-012; Ord. 2002-10-069 § 1; Ord. 2002-03-020; Ord. 2001-02-007; Ord. 2000-11-077; Ord. 2000-05-023].

2.56.060 Annual report and meeting with city council.

The hearing examiner shall report in writing and meet with the city council at least annually for the purpose of reviewing the administration of the land use policies and regulatory ordinances and any amendments to city ordinances or other policies or procedures which would improve the performance of the hearing examiner process. Such report shall include a summary of the hearing examiner’s decisions since the last report. If requested by the city council or the mayor, the hearing examiner shall provide additional written reports as deemed appropriate by the city council or mayor. [Ord. 2015-12-055 § 1; Ord. 2000-05-023].

2.56.070 Procedures.

The hearing examiner shall adopt rules concerning procedures for scheduling and conduct of hearings, including providing for waiver of filing fees upon proof of indigence, and as otherwise related to the duties of the office, not inconsistent with the terms of this chapter. [Ord. 2002-10-069 § 2; Ord. 2000-05-023].

2.56.080 Appeals to city council.

The decision of the hearing examiner on those matters specified in BMC 2.56.050(A) shall be final excepting those matters for which appeal of the decision of the hearing examiner to city council is permitted and then only in the event that an aggrieved party or a city department files a written notice of appeal with the city council within 14 days, or as otherwise provided by this code or RCW 36.70B.110, of the final decision of the hearing examiner. [Ord. 2002-10-069 § 3; Ord. 2000-05-023].

2.56.090 Fees.

Each application for a permit or approval which requires a hearing before the hearing examiner, and each appeal to the hearing examiner, shall be accompanied by payment of a fee which shall be set by resolution of the city council. [Ord. 2000-05-023].

2.56.100 Pending applications.

Applicants and appellants in matters which were filed prior to the effective date of the ordinance codified in this chapter may opt to have their applications and appeals heard by the bodies which were authorized to hear them at the time they were filed, or by the hearing examiner as provided in this chapter; provided, that this option shall expire no later than 120 days after the effective date of the ordinance codified in this chapter and all such applications and appeals assigned to the hearing examiner in this chapter not heard prior to that date shall be heard by the hearing examiner. [Ord. 2000-05-023].