Chapter 2.35
HEARING EXAMINER
Sections:
2.35.050 Freedom from undue influence – Conflict of interest.
2.35.070 Power of hearing examiner.
2.35.080 Report of building official.
2.35.100 Decision of hearing examiner.
2.35.110 Request for reconsideration.
2.35.120 Final decision and order.
2.35.130 Repealed.
2.35.140 Repealed.
2.35.150 Repealed.
2.35.160 Repealed.
2.35.190 Repealed.
2.35.010 Purpose.
The purpose of this chapter is to establish a system of land use regulatory hearings which will satisfy the following basic needs:
(1) A prompt opportunity for a hearing and decision of alleged violations of land use regulations and such other regulations as may be assigned to the hearing examiner;
(2) An efficient and effective system for deciding variances, appeals from administrative decisions and other land use issues;
(3) To insure procedural due process and the appearance of fairness by conducting hearings before a neutral party, competent in the field of land use and procedural requirements. [Ord. 317 § 1, 1996]
2.35.020 Office created.
The office of hearing examiner, referred to in this chapter as examiner, is hereby created. The examiner shall perform the following duties:
(1) Interpret, review and implement land use regulations;
(2) Hear all applications for variances to HPMC Title 18;
(3) Hear all appeals of the building official’s or town engineer’s interpretations of HPMC Title 18;
(4) Hear appeals of all notices of violation;
(5) Hear all other quasi-judicial appeals of administrative decisions, except those specifically prescribed by state law to be heard by the town council; and
(6) Perform other duties as may be assigned by the mayor or council by ordinance. [Ord. 406 § 1, 2002; Ord. 349 § 1, 1998; Ord. 317 § 2, 1996]
2.35.030 Appointment.
The hearing examiner shall be appointed by the mayor and confirmed by a majority of the town council. The hearing examiner will be appointed and shall serve as hearing examiner under such terms and conditions as are set forth in a written contract between the parties. The compensation of the hearing examiner shall be established by contract, which shall be approved by a resolution of the town council or may be established by the terms of an agreement with any other city or county to provide for a joint hearing examiner procedure. The duties and responsibilities of the hearing examiner shall be quasi-judicial in nature. [Ord. 328 § 1, 1997; Ord. 317 § 3, 1996]
2.35.040 Qualifications.
The hearing examiner shall be appointed solely with regard to qualifications for the duties of the office and will have such training and experience as will qualify him or her to conduct administrative or quasi-judicial hearings and to discharge the other functions conferred upon the office. An examiner shall hold no other elective appointive office or position in the town of Hunts Point. Examiners shall be appointed solely with regard to their qualifications to the duty of the office which shall include, but not be limited to, appropriate educational and practical experience in urban planning or law. [Ord. 317 § 4, 1996]
2.35.050 Freedom from undue influence – Conflict of interest.
(1) No person shall attempt to influence an examiner in any matter pending before him, except publicly at a public hearing duly called for such purpose, or to interfere with examiner in the performance of his duties in any other way; provided, that this section shall not prohibit the town attorney from rendering legal services to the examiner.
(2) No examiner shall conduct or participate in any hearing or decision in which the examiner has direct or indirect substantial financial or other interest, or concerning which the examiner has had substantial prehearing contacts with proponents or opponents wherein the issues were discussed; nor shall any member of the town council who has such an interest or who has such contacts participate in the consideration thereof. The office of the examiner shall be separate from and not a part of the building department or any other agency of the town. This section is not intended to prohibit necessary or prompt inquiries on matters as scheduling but, whenever possible, such inquiries shall be in writing and be entered into the official record of the hearing. [Ord. 317 § 5, 1996]
2.35.060 Rules for hearings.
The examiner shall provide rules for scheduling and conduct of hearings and other matters relating to the duties of his office. Such rules shall provide for the admission of evidence, examination and cross-examination of witnesses, rebuttal evidence and all other matters relevant to the conduct of the hearing. The examiner may limit the time allowed to parties testifying on an equal basis, may establish time limits for initial or rebuttal evidence, may limit cross-examination of witnesses and may limit the number of witnesses to be heard. [Ord. 317 § 6, 1996]
2.35.070 Power of hearing examiner.
The examiner shall receive and examine available information, conduct public hearings, prepare a record and tape recording thereof, and enter written decisions as provided for in this section.
(1) The written decision of the examiner on land use and building decisions, requests for variances and appeals shall be final and the only appeal therefrom shall be to the King County superior court.
(2) In the performance of duties set forth in this chapter, the examiner may:
(a) Administer oaths and affirmations, examine witnesses, rule on offers of proof, receive relevant evidence, conduct discovery procedures which may include interrogatories and oral depositions pursuant to Washington State Court Rules; provided, no person shall be compelled to divulge information which could not be compelled in a court of law;
(b) Upon the request of the town, or any party, or upon the examiner’s own request, 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 of or under the control of any witness; provided, that such subpoena must state the name and address of the witness sought and if for the production of books, documents or things, shall specifically identify the same;
(c) Regulate the course of the hearing in accordance with this chapter and other applicable ordinances;
(d) Hold conferences for the settlement or simplification of the issues by consent of the parties;
(e) Dispose of procedural requirements or similar matters;
(f) Take any other action authorized by ordinance;
(g) 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 or proper books or records or other information in the witness’s possession or under the witness’s control, the examiner may invoke the aid of the town attorney who may apply to an appropriate court for an order or other court action necessary to secure enforcement of the subpoena. [Ord. 467 § 1, 2008; Ord. 422 § 2, 2003; Ord. 328 § 2, 1997; Ord. 317 § 7, 1996]
2.35.080 Report of building official.
On any land use issue coming before the examiner, the town building official shall coordinate and assemble the reviews of all town departments, agencies and other interested parties and shall prepare a report summarizing the factors involved and the building official’s findings and recommendations. Said report shall be filed with the examiner at least seven calendar days prior to the scheduled hearing and copies thereof shall be mailed to the applicant and made available for public inspection. Copies thereof shall be provided to all interested parties upon payment of reproduction costs. [Ord. 317 § 8, 1996]
2.35.090 Public hearings.
(1) Prior to rendering a decision on any land use matter, the examiner shall hold at least one public hearing. Public notice shall be given when required by HPMC 11.10.160 or other notice provisions in this code.
(2) All evidence, including records of documents in the possession of the building department, which the examiner desires to consider, shall be offered and made a part of the record. After all interested parties have had an opportunity to speak, in accordance with the examiner’s rules for conducting the hearing, the examiner shall either close the hearing, continue the hearing to a specified date, or invite additional testimony or evidence restricted only to issues in which, in the opinion of the examiner, there is a need for additional testimony. [Ord. 467 § 2, 2008; Ord. 328 § 3, 1997; Ord. 317 § 9, 1996]
2.35.100 Decision of hearing examiner.
The examiner shall render a written decision within 10 working days of the conclusion of the hearing, unless a longer period is agreed to by the applicant. The decision shall include at least the following:
(1) Findings of fact and conclusions of law based upon and supported by the record;
(2) A decision on the application to grant, deny or grant with conditions, modifications or restrictions based on applicable codes, ordinances and regulations;
(3) A statement that there is no administrative appeal of the hearing examiner’s decision, and that judicial appeals may be brought under Chapter 36.70C RCW;
(4) A statement of any threshold determination made under Chapter 43.21C RCW;
(5) The examiner shall state in the decision, if applicable, any conditions associated with granting of the relief including the time limit after which any approval shall expire if not utilized;
(6) The decision of the hearing examiner shall be filed with the town clerk who shall, within three working days thereafter, mail copies 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. The town clerk shall also provide for notice to the public of the decision as required by other applicable ordinances or codes. [Ord. 467 § 3, 2008; Ord. 328 § 4, 1997; Ord. 317 § 10, 1996]
2.35.110 Request for reconsideration.
Any party to the proceeding who is aggrieved by the decision of the examiner may submit a written request for reconsideration of the examiner by filing a request with the town clerk within 14 calendar days of the examiner’s decision. Such request shall specify the error of law or fact, procedural error or new evidence which could not have been reasonably available at the time of the hearing conducted by the examiner which is the basis for the request. Within 10 working days from the date the hearing examiner receives a request for reconsideration, a decision shall be issued on whether or not to reopen the hearing. Said decision shall be mailed to all parties of record within three days after the examiner’s decision is made. [Ord. 317 § 11, 1996]
2.35.120 Final decision and order.
The decision or order of the examiner shall become a final decision or order upon issuance unless appealed in King County superior court pursuant to Chapter 36.70C RCW. [Ord. 467 § 4, 2008; Ord. 328 § 5, 1997; Ord. 317 § 12, 1996]
2.35.130 Notice of violation.
Repealed by Ord. 467. [Ord. 317 § 13, 1996]
2.35.140 Contents of notice of violation.
Repealed by Ord. 467. [Ord. 317 § 14, 1996]
2.35.150 Hearings on notices of violation.
Repealed by Ord. 467. [Ord. 317 § 15, 1996]
2.35.160 Collection of civil penalty.
Repealed by Ord. 467. [Ord. 317 § 16, 1996]
2.35.170 Legal counsel.
(1) At the request of the examiner, the town attorney shall be present at public hearings or meetings to advise the examiner on matters of law and procedure.
(2) All interested parties to a hearing before the examiner may be represented by legal counsel. [Ord. 317 § 17, 1996]
2.35.180 Conduct of hearing.
(1) The format of the hearing will be of an informal nature yet designed in such a way that the evidence and facts relevant to the issues will become the most readily and efficiently available to the hearing examiner.
(2) Prior to the hearing, the examiner may hold conferences for settlement, simplification of the issues, or for any other proper purpose.
(3) Subject to revision by the examiner, the public hearing shall normally contain the following elements: A brief introductory statement by the hearing examiner; a report by town staff which shall include introduction of the official file, reference to maps and visual aids, and a summary of the recommendation of the staff; testimony by the applicant or petitioner; testimony in support of the application; testimony of opposing parties; cross examination and rebuttal; and opportunities for questions by the hearing examiner.
(4) The record of the hearing conducted by the hearing examiner shall include but not be limited to the following materials:
(a) The application or petition;
(b) The departmental staff reports;
(c) All evidence received or considered, which shall include all exhibits and other materials filed;
(d) Statement of all matters officially noticed;
(e) A decision containing the findings and conclusions of the hearing examiner;
(f) A recording of the hearing made on electronic equipment;
(g) A record of the town assigning the matter to the hearing examiner for decision.
(5) Rules of Evidence.
(a) Burden of Proof. In each particular proceeding, the petitioner or the proponent of an individual petition or application shall have the burden of proof.
(b) Admissibility. The hearing generally will not be conducted according to technical rules relating to evidence and procedure. Any relevant evidence shall be admitted if it is the type which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The rules of privilege shall not be effective to the extent recognized by law. The examiner shall retain discretion on the admissibility of all evidence.
(c) Copies. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available.
(d) Official Notice. The examiner may take official notice of judicially admissible facts and in addition may take notice of general, technical or scientific facts within the examiner’s specialized knowledge. When any recommendation or decision of the hearing examiner rests, in whole or in part, upon the taking of official notice of a material fact not apparent in evidence of record, opportunity to disprove such notices of fact shall be granted to any affected person making a timely motion therefor. The examiner shall not take notice of disputed facts that are at the center of a particular proceeding.
(e) Evidence Received Subsequent to the Hearing. If additional evidence is submitted after the public hearing, it will be considered only upon a showing of significant relevance and just cause for the delay in admission. All parties of record will be given notice of the consideration of this evidence and have an opportunity to review such evidence and file rebuttal statements.
(f) All parties will be allowed an opportunity to make a record of evidence admitted or denied during the course of the hearing. This record shall include offers of proof from any party.
(g) All costs of preparing and copying documents and transcribing the hearing shall be paid for by the applicant. [Ord. 328 § 6, 1997; Ord. 317 § 18, 1996]
2.35.190 Process for use of hearing examiner.
Repealed by Ord. 349. [Ord. 317 § 19, 1996]