Chapter 11.12
OPEN RECORD PUBLIC HEARINGS

Sections:

11.12.001    General.

11.12.002    Responsibility of director for hearing.

11.12.003    Conflict of interest.

11.12.004    Ex parte communications – Appearance of fairness.

11.12.005    Burden of proof.

11.12.006    Order of proceedings.

11.12.007    Findings and notice of decision.

11.12.008    Calculation of time periods for issuance of notice of final decision.

11.12.009    Reconsideration of a hearing body decision.

11.12.010    Appeals of Type II decisions.

11.12.001 General.

Open record public hearings shall be conducted on all Type III and Type IVA project permit applications and on appeals of decisions of the Director on Type II permit applications, in accordance with this chapter. Open record public hearings shall not be conducted on Type I, Type II or Type IVB applications; however, the requirements in this chapter concerning the issuance of notices of decision (NODs) shall apply to Type II and Type IVB applications. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.002 Responsibility of director for hearing.

The community development director shall:

A.    Schedule Type III, IVA, and administrative appeals of Type II applications for review and public hearing.

B.    Give the required notice as set forth in Chapter 11.19 BMC.

C.    Prepare the staff report on the above applications, which shall be a single report stating all of the decisions made as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall state any mitigation required or proposed under the development regulations or the city’s authority under SEPA. If the threshold determination other than a determination of significance has not been issued previously by the city, the report shall include or append this determination. The report shall include a written recommendation to the hearing body. The staff report shall be transmitted to the hearing body and available to the public at least 10 calendar days prior to the hearing.

    In the case of a Type I or II project permit application, this report may be the permit.

D.    Prepare the notice of decision, and mail a copy of the notice of decision to those required by this code to receive such decision. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.003 Conflict of interest.

The hearing body shall be subject to the code of ethics and prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23 RCW, as the same now exists or may hereafter be amended. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.004 Ex parte communications – Appearance of fairness.

A.    Quasi-judicial land use decisions of the hearing body shall be subject to Chapter 42.36 RCW, Appearance of Fairness.

B.    No member of the hearing body may be disqualified by the appearance of fairness doctrine for conducting the business of his or her office with any constituent on any matter other than a quasi-judicial action then pending before the hearing body.

C.    Prior to declaring as a candidate for public office or while campaigning for public office as defined by RCW 42.17.020(5) and (25), no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine.

D.    During the pendency of any quasi-judicial proceeding, no member of a decision-making body may engage in ex parte communications with opponents or proponents with respect to the proposal which is the subject of the proceeding unless that person:

1.    Places on the record the substance of any written or oral ex parte communications concerning the decision or action;

2.    Provides that a public announcement of the content of the communication and of the parties’ rights to rebut the substance of the communication shall be made at each hearing where action is considered or taken on the subject to which the communication related. This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or data from such parties relative to the decision if both the request and the results are a part of the record. Nor does such prohibition preclude correspondence between a citizen and his or her elected official if any such correspondence is made a part of the record when it pertains to the subject matter of a quasi-judicial proceeding.

E.    Anyone seeking to rely on the appearance of fairness doctrine to disqualify a member of a decision-making body from participating in a decision must raise the challenge as soon as the basis for disqualification is made known to the individual. Where the basis is known or should reasonably have been known prior to the issuance of a decision and is not raised, it may not be relied on to invalidate the decision.

F.    In the event of a challenge to a member or members of the hearing body which would cause a lack of a quorum or would result in a failure to obtain a majority vote as required by law, any such challenged member(s) shall be permitted to fully participate in the proceeding and vote as though the challenge had not occurred, if the member or members publicly disclose the basis for disqualification prior to rendering a decision. Such participation shall not subject the decision to a challenge by reason of violation of the appearance of fairness doctrine.

G.    Except for Type V actions, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or decision unless the member has reviewed the evidence received. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.005 Burden of proof.

Except for Type V actions, the burden of proof for demonstrating compliance with development regulations and consistency with SEPA is on the applicant. The project permit application must be supported by proof that it conforms to the applicable elements of the city’s development regulations and comprehensive plan and that any significant adverse environmental impacts have been adequately addressed. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.006 Order of proceedings.

The order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate.

A.    Before receiving information on the issue, the following shall be determined:

1.    Any objections on jurisdictional grounds shall be noted on the record and if there is objection, the hearing body has the discretion to proceed or terminate.

2.    Any abstentions or disqualifications shall be determined.

B.    The presiding officer may take record notice of known information related to the issue, such as:

1.    A provision of any ordinance, resolution, rule, officially adopted development standard or state law;

2.    Other public records and facts judicially noticeable by law.

C.    Parties requesting record notice of any matter per subsection B of this section shall do so on the hearing record. However, the hearing body may take notice of matters listed in subsection (B)(2) of this section if stated on the hearing record. Any matter given record notice may be rebutted.

D.    The hearing body may view the subject area with or without notification to the parties, but shall place the time, manner and circumstances of such view on the record.

E.    Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.

F.    When the presiding officer has closed the public hearing portion of the hearing, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.007 Findings and notice of decision.

A.    Following the hearing procedure described in this chapter, the hearing body shall act as follows:

1.    If the subject of the hearing is an appeal of a Type II decision, the hearing body shall affirm, reverse or remand the decision;

2.    If the subject of the hearing is a Type III project permit application, the hearing body shall approve, conditionally approve, or deny the application;

3.    If the subject of the hearing is a Type IVA project permit application, the hearing body shall make a recommendation to the city council. The city council shall subsequently consider the recommendation of the hearing body in closed record review as set forth in Chapter 11.14 BMC and shall issue its decision.

B.    A written decision shall be issued within 10 working days after the hearing on a Type III project permit application or an administrative appeal of a Type II decision; and within 10 working days of the council decision on a Type IV project permit application. The written decision shall be issued within 120 calendar days of the notice of a complete application pursuant to BMC 11.12.008(A). The time frames set forth in this section and BMC 11.12.008 shall apply to project permit applications filed on or after April 1, 1996.

C.    The city shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for administrative appeal, if any. For Type II, III and IV project permit applications, the notice of decision on the issued permit shall contain the requirements set forth in BMC 11.12.002(C).

D.    The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.

E.    Notice of the decision shall be provided to the public as set forth in Chapter 11.19 BMC.

F.    If the city is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision.

G.    The director shall provide notice of the decision to the county assessor’s office of the county or counties in which the property is situated. (Ord. 1815 § 1, 2000; Ord. 1691 §§ 1, 3, 1997; Ord. 1628 § 1, 1996).

11.12.008 Calculation of time periods for issuance of notice of final decision.

A.    The city shall issue a notice of decision for all Type II, III, and IVA permit applications within 120 calendar days after the city notifies the applicant that the application is complete pursuant to the following sections. Except that, for Type IVA preliminary subdivisions and preliminary short subdivision applications, the time periods shall be consistent with Chapter 58.17 RCW.

B.    In determining the number of days that have elapsed after the local government has notified the applicant that the application is complete for purposes of calculating the time for issuance of the notice of decision, the following periods shall be excluded:

1.    Any period during which the applicant has been requested by the city to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the city notifies the applicant of the need for additional information until the earlier of the date the city determines whether the additional information satisfies the request for information or 14 calendar days after the date the information has been provided to the city.

2.    If the city determines that the information submitted by the applicant under subsection (B)(1) of this section is insufficient, it shall notify the applicant of the deficiencies and the procedures under subsection (B)(1) of this section shall apply as if a new request for studies had been made.

3.    Any period during which an environmental impact statement is being prepared following a determination of significance pursuant of Chapter 43.21C RCW, if the city by ordinance has established time periods for completion of environmental impact statements, or if the city and the applicant in writing agree to a time period for completion of an environmental impact statement.

4.    Any period for administrative appeals of project permits, if an open record appeal hearing or a closed record appeal, or both, are allowed. The time period for consideration and decision on appeals shall not exceed:

a.    Ninety calendar days for an open record appeal hearing; and

b.    Sixty calendar days for a closed record appeal.

The parties may agree to extend these time periods.

5.    Any extension of time mutually agreed upon by the applicant and the city in writing.

C.    The time limits established in this title do not apply if a project permit application:

1.    Requires an amendment to the comprehensive plan or a development regulation;

2.    Requires approval of the siting of an essential public facility as provided in RCW 36.70A.200; or

3.    Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete under BMC 11.06.003. (Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997; Ord. 1628 § 1, 1996).

11.12.009 Reconsideration of a hearing body decision.

Reconsideration of a hearing body’s decision regarding a Type III or Type IVA application, or the decision on an appeal of a Type II director’s decision, shall be subject to the following:

A.    Any party of record may file, at their discretion, a written petition for reconsideration within 10 calendar days following the date of the hearing body’s written decision. The petition shall be filed with the director. The timely filing of a petition for reconsideration shall not stay the effective deadline for commencing administrative or judicial appeal of the hearing body’s decision and any administrative appeal filed on the application until such time as the reconsideration has been disposed of by the hearing body; provided, that if an administrative appeal is timely commenced, such appeal shall be stayed pending final resolution of the petition for reconsideration.

1.    The grounds for seeking reconsideration shall be limited to the following:

a.    The hearing body exceeded its jurisdiction;

b.    The hearing body failed to follow the applicable procedure in reaching its decision;

c.    The hearing body committed an error of law or misinterpreted the applicable comprehensive plan, provisions of this code or other city or state law or regulation;

d.    The hearing body’s findings, conclusions and/or conditions are not supported by substantial evidence in the record;

e.    Newly discovered evidence alleged to be material to the hearing body’s decision which could not reasonably have been discovered or produced at the hearing; or

f.    Minor changes to the application proposed by the applicant in response to deficiencies identified in the decision; provided, that the changes do not substantially modify the original proposal.

2.    The petition for reconsideration must:

a.    Contain the name, mailing address and daytime telephone number of the petitioner, together with the signature of the petitioner or of the petitioner’s attorney, if any;

b.    Identify the specific findings, conclusions, actions and/or conditions for which reconsideration is requested;

c.    Describe the specific relief requested including the specific reasons for which relief is requested;

d.    Where applicable, identify the specific nature of any newly discovered evidence and/or changes proposed by the applicant; and

e.    Contain a statement that the petitioner has read the petition for reconsideration and believes the contents to be true, followed by the petitioner’s signature.

B.    The petition for reconsideration shall be deemed to have been denied if one of the actions specified in subsection C of this section has not been taken within 30 working days of the end of the reconsideration period established in subsection A of this section.

C.    The petition for reconsideration shall be disposed of in writing by the same hearing body who rendered the decision. The hearing body may at its discretion:

1.    Deny the petition; or

2.    Grant the petition and issue an amended decision in accordance with the provisions of BMC 11.12.007 following reconsideration; or

3.    Accept the petition and give all parties of record the opportunity to submit written comment. Notice of the filing, together with a copy of the petition for reconsideration shall be sent to all parties of record. Parties shall have 10 working days from the date of the reconsideration notice to submit written comments. Within 14 calendar days after the close of the comment period, the hearing body shall either issue a decision in accordance with the provisions of BMC 11.12.007 or issue an order setting the matter for further hearing in accordance with subsection (C)(4) of this section; or

4.    Accept the petition and set the matter for further open record public hearing to consider new evidence, proposed changes in the application and/or the arguments of the parties. Notice of such further hearing shall be mailed not less than 21 days prior to the hearing date to all parties of record. The hearing body shall issue a decision following the further hearing in accordance with the provisions of this chapter.

D.    A decision which has been subjected to the reconsideration process shall not again be subject to reconsideration.

E.    The hearing body may consolidate for action, in whole or in part, multiple petitions for reconsideration of the same decision where such consolidation would facilitate procedural efficiency. (Ord. 1871 § 1, 2002; Ord. 1815 § 1, 2000).

11.12.010 Appeals of Type II decisions.

Any person aggrieved by the decision of the director on a Type II permit application may file an appeal with the director for an open record review hearing before the hearing body subject to the following:

A.    Time to File. An appeal of the director’s decision must be filed within 14 calendar days following issuance of the director’s written decision. Appeals and the appeal fee, if applicable, shall be delivered to the department of community development by mail or personal delivery before 5:00 p.m. on the last business day of the appeal period.

B.    Computation of Time. For the purposes of computing the time for filing an appeal, the date the director’s decision is rendered shall not be included. The last day of the appeal period shall be included unless it is a Saturday, Sunday, or a day designated by RCW 1.16.050 or by the city’s ordinances as a legal holiday, in which case such day or days are also excluded and the filing must be completed on the next city business day. (RCW 35A.21.080.)

C.    Content of Appeal. Appeals shall be in writing, be accompanied by an appeal fee, and contain the following information:

1.    Appellant’s name, address and phone number;

2.    Appellant’s statement describing his or her standing to appeal;

3.    Identification of the application which is the subject of the appeal;

4.    Appellant’s statement of grounds for appeal and the facts upon which the appeal is based. The statement of grounds for appeal must include issues the appellant is requesting to be heard in the appeal hearing. Issues not stated in the appeal documents shall not be considered by the hearing body. Additional information on each of the stated appeal issues may be submitted at any time up to and during the appeal hearing;

5.    The relief sought, including the specific nature and extent; and

6.    A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.

D.    Effect. The timely filing of an appeal shall stay the effective date of the director’s decision until such time as the appeal is adjudicated by the hearing body or withdrawn.

E.    Notice of Appeal. The community development director shall provide public notice of the appeal as provided in Chapter 11.19 BMC. (Ord. 1871 § 1, 2002; Ord. 1815 § 1, 2000; Ord. 1691 § 1, 1997. Formerly 11.12.009).