Chapter 18.37 HEARING EXAMINER

C. To provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters;

D. To provide for consistency and predictability in decision-making and the application of policies and regulations adopted by the city; and

E. To separate land use policy formulation from land use policy administration processes. (Ord. 957 § 1 (Exh. A), 2011)

18.37.020 Creation of the office of the hearing examiner.

The office of the hearing examiner, hereinafter referred to as “examiner,” is hereby created. The examiner shall interpret, review, and implement land use regulations as provided in this title and other ordinances, with regard to issues and matters as assigned, delegated and/or referred to the examiner. The term “examiner” shall likewise include the examiner pro tem. (Ord. 957 § 1 (Exh. A), 2011)

18.37.030 Appointment and terms.

The city council shall appoint the examiner for terms which shall initially expire one year following the date of original appointment, and thereafter expire three years following the date of each reappointment. The council may also, by professional service contract, appoint for terms and functions deemed appropriate by the council, examiners pro tem to serve in the event of the examiner’s absence or inability to act due to conflict of interest as the examiner or as the examiner’s hearing schedule requires. (Ord. 957 § 1 (Exh. A), 2011)

18.37.040 Qualifications.

The examiner and examiners pro tem shall be appointed solely with regard to their qualifications for the duties of such office and shall have such training and experience as will qualify them to conduct administrative or quasi-judicial hearings on regulatory matters and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointive office or position in city government. (Ord. 957 § 1 (Exh. A), 2011)

18.37.050 Removal.

An examiner may be removed from office for cause by majority vote of the council. (Ord. 957 § 1 (Exh. A), 2011)

18.37.060 Organization.

The office of the examiner shall be under the administrative supervision of the examiner and shall be separate from and not a part of the planning department. (Ord. 957 § 1 (Exh. A), 2011)

18.37.070 Authority and duties.

A. The examiner is vested with the duty and authority to hold public meetings and hearings and render final decisions on the following matters:

1. Preliminary plats and planned unit developments when subject to public review;

2. Preliminary binding site plan approvals when subject to public review;

3. Conditional use permits, when subject to public review;

4. Zoning code variances, when subject to public review;

5. Shoreline substantial development permits when subject to public review, shoreline conditional development permits, shoreline variances, and appeals of administrative determinations;

6. Variances from the city’s sign code;

7. Variances from the city’s floodplain management code;

8. Such other regulatory, enforcement or quasi-judicial matters as may be assigned to the examiner by the city council;

9. Complaints by citizens or city staff seeking administrative enforcement of provisions of city land use codes or conditions in development permits and approvals, or seeking rescission or modification of such permits or approvals;

10. Type II site plan review.

B. The hearing examiner shall make decisions on the following appeals:

1. Administrative appeals from decisions and interpretations by city staff relating to land use codes, SEPA and permits;

2. Appeals from administrative decisions on short plats;

3. Appeals from administrative decisions on critical area alteration decisions;

4. Appeals from administrative decisions on shoreline exemptions, shoreline substantial development permits, shoreline conditional use and shoreline variance decisions, and appeals of rescissions of such permits;

5. Appeals of administrative decisions/interpretations of the flood damage prevention ordinance;

6. Appeals regarding administrative zoning code enforcement, zoning variances, interpretations of the zoning code, and zoning setback reduction;

7. Appeals of all State Environmental Policy Act (SEPA) threshold determinations. SEPA exemption decisions are not appealable;

8. Appeals of enforcement orders issued by the planning official, including shoreline enforcement orders and those enforcement orders where the civil penalties for violation are set forth in RCW 90.50.210.0;

9. Appeals of administrative revocation of approvals or permits;

10. Appeals of decisions of the public works director;

11. Appeals of decisions of the city building official; and

12. Appeals of decisions by the city council.

C. The hearing examiner may:

1. Administer oaths and affirmations.

2. Issue subpoenas.

3. Rule upon offers of proof and receive evidence.

4. Conduct view trips.

5. Regulate the course of the hearing and the conduct of the parties.

6. Question any party presenting testimony at the hearing.

7. Require briefs on legal issues.

8. Consider and rule upon procedural and other motions.

9. Make decisions.

D. The hearing examiner may hold pre-hearing conferences to clarify issues or structure the proceeding, provided all affected parties receive reasonable notice and either attend or waive their right to attend. At the hearing, or by pre-hearing order, the hearing examiner shall communicate for the record the time, purpose, and result of the conference.

E. Where it would assist the examiner in clarifying or understanding the evidence adduced at hearing, the examiner may inspect property subject to an appeal, application or recommendation. The site inspection shall be taken out of the presence of any interested party whenever feasible. If accompaniment by an interested party is necessary to fully view the property no substantive discussion shall occur during the inspection. An accompanied site inspection should be, but is not required to be, disclosed at the outset of the hearing.

F. No elected official, officer, employee, or agent of the city shall supervise or direct the hearing examiner’s adjudicative functions. (Ord. 1005 § 3, 2014; Ord. 1004 § 4 (Exh. E), 2014; Ord. 957 § 1 (Exh. A), 2011)

18.37.080 Ex parte communication – Appearance of fairness – Conflict of interest.

A. The appearance of fairness doctrine, as specified in Chapter 42.36 RCW, shall apply to hearing examiner proceedings and shall result in the examiner’s disqualification when necessary. The hearing examiner shall not participate in any proceeding in which the examiner has a prohibited personal interest which might influence the examiner. In the event of a conflict of interest, the hearing shall be conducted by a hearing examiner pro tem. The hearing examiner shall not communicate ex parte directly or indirectly with any person, or his or her agent or representative, having an interest in an application before the hearing examiner.

B. If a prohibited ex parte communication occurs, it shall be publicly disclosed in accordance with Chapter 42.36 RCW, and the hearing examiner shall determine whether to disqualify himself or herself for that application. (Ord. 957 § 1 (Exh. A), 2011)

18.37.090 Rights and responsibilities of applicants, appellants, and parties of record.

A. Hearing attendees shall conduct themselves civilly and courteously or be removed from the hearing.

B. All testimony before the hearing examiner shall be given under oath to tell the truth, administered by the hearing examiner.

C. The applicant and any parties planning to present legal briefs or testimony shall provide the planning official and the hearing examiner with the material at least one week in advance. Such materials shall be available to the public, subject to payment therefor.

D. The applicant or appellant shall have the right of notice, cross-examination, presentation of evidence, objection, motion, argument, timely access to the city’s staff report, and all other rights essential to a fair hearing.

E. Applicant or appellant shall have the right to present evidence and testimony at hearings. The right of applicant or appellant to cross-examine, object, submit motions and arguments shall be at the discretion of the hearing examiner.

F. When an applicant or appellant consists of more than one individual, or as a group, organization, corporation, or other entity, the applicant or appellant shall designate an individual to be its representative and inform the hearing examiner of the name, address and telephone number of that designated representative. The rights of such applicant or appellant shall be exercised by the person designated as the party representative. Notice or other communication to the applicant or appellant representative is notice or communication to the party.

G. The hearing examiner may reasonably limit the number of witnesses heard and the nature and length of testimony. Cross-examination is permitted as necessary for a full disclosure of the facts, but the hearing examiner shall control the amount and style of cross-examination.

H. Participants in hearings, including the city itself, may be represented by legal counsel. (Ord. 957 § 1 (Exh. A), 2011)

18.37.100 Rights and responsibilities of the planning official.

A. In addition to duties elsewhere stated, the planning official shall deliver a staff report, a statement or proof of notices published, and any necessary plans and documentation to the hearing examiner at least seven days prior to a hearing. The planning official shall also provide a copy of said documents to the applicant or appellant. The planning official shall also present materials at the hearing as necessary.

B. The planning official may present evidence and testimony, object, make motions, arguments, recommendations, and all other rights essential to a fair hearing. (Ord. 957 § 1 (Exh. A), 2011)

18.37.110 Scheduling hearings.

A. To the extent practicable and consistent with requirements of law, hearings shall be conducted expeditiously. At every stage in the proceedings, all parties shall make every reasonable effort to avoid delay.

B. Promptly following receipt of a timely appeal, the hearing examiner shall schedule a hearing consistent with the requirements of this chapter. A notarized affidavit attesting to the written notice of a given public hearing shall be made a part of each official case record.

C. Applications requiring a hearing examiner decision shall be scheduled for hearing promptly upon notification by the department that the application is complete and ready for scheduling.

D. All applicable fees, unless waived in accordance with the Langley Municipal Code, shall be paid prior to scheduling a hearing in any matter.

E. Where practical, feasible, and consistent with ordinance requirements, all matters under the jurisdiction of the hearing examiner relating to the same matter should be consolidated for hearing. The hearing examiner may order consolidation with or without a request from any applicant or appellant. (Ord. 957 § 1 (Exh. A), 2011)

18.37.120 Elements of public hearing.

A public hearing usually will include but not be limited to:

A. The hearing examiner’s brief explanation of the process.

B. Presentation of staff report.

C. Testimony by the applicant, petitioner or appellant and cross-examination of same. All testimony before the hearing examiner at hearing shall be taken under oath or affirmation to tell the truth.

D. Testimony in support.

E. Testimony of opposing parties.

F. Opportunity for cross-examination and rebuttal.

G. Opportunity for questions by the hearing examiner.

H. Opportunity for public comment. (Ord. 957 § 1 (Exh. A), 2011)

18.37.130 Expected conduct.

A. All persons appearing before the hearing examiner shall conduct themselves with civility and courtesy to all persons involved in the hearing.

B. No party or other person shall communicate with an examiner presiding over a matter or with any employee of the hearing examiner’s office in an attempt to influence the outcome or to discuss the merits of that matter, except on the record.

C. Except for communications regarding procedural matters (which are permitted), no party or other person shall make or attempt ex parte communication with the examiner regarding a pending appeal, application or other contested case.

D. If a substantial, prohibited ex parte communication is made, such communication, including a summary of the substance and participants, shall be publicly disclosed by the examiner. Any written communications shall be made available to the parties for review. Parties shall have an opportunity to rebut those communications. Ex parte communications that are disclosed in this manner shall not be grounds for disqualification of the examiner. (Ord. 957 § 1 (Exh. A), 2011)

18.37.140 Evidence.

A. The applicant or appellant shall have the burden of proof to show compliance with applicable laws and regulations of Washington State and the city of Langley.

B. An initial exhibit list shall be prepared by the office of the hearing examiner identifying all documents submitted to the examiner as part of the record prior to preparation of the agenda for the hearing. This list shall be included in the agenda packet for the hearing.

C. The hearing generally will not be conducted according to strict legal rules of evidence and procedure. Any relevant and probative evidence shall be admitted. The rules of privilege shall be effective to the extent recognized by law. The hearing examiner shall decide the admissibility of evidence.

D. Documentary evidence may be received in the form of copies. Upon request, parties shall be given an opportunity to compare the copy with the original.

E. The hearing examiner may take judicial notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within his/her specialized knowledge. The hearing examiner shall not take notice of disputed adjudicative facts that are determinative of the outcome of a particular proceeding.

F. If a document is referred to at a public hearing and the hearing examiner requests a copy of the document, said document may so enter the record.

G. All parties will be allowed opportunity to make a record of evidence admitted or denied during the course of the hearing. This record shall include offers of proof. (Ord. 957 § 1 (Exh. A), 2011)

18.37.150 Continuation of hearing.

The hearing examiner may continue the hearing until a date and time certain to allow all comments to be heard or to gather more information. No further notice of that hearing need be given. Any applicant or appellant may request a hearing be continued, which request the hearing examiner shall grant or deny. (Ord. 957 § 1 (Exh. A), 2011)

18.37.160 Additional evidence.

A. At any time prior to the filing of a recommendation or the final decision, the hearing examiner may reopen the proceeding to receive evidence that was unavailable at the time of the hearing. Such reopening may be initiated by an applicant or appellant requesting permission to present such evidence. The hearing examiner shall grant the request only upon a showing of significant relevance and good cause for delay in its submission. All parties of record will be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttals.

B. If within seven calendar days after the public hearing any applicant or appellant petitions the examiner for a reopening of the hearing, the examiner shall have the discretion to reopen the hearing to consider new testimony or new evidence that was unavailable at the time of the hearing. (Ord. 957 § 1 (Exh. A), 2011)

18.37.170 Record of hearing.

Hearings shall be electronically recorded and such recordings shall be a part of the official case record, all components of which shall be available to the public, provided the requester pays reasonable costs of copying or transcripts. No minutes of the hearing will be kept. The record of hearing shall include:

A. The application or petition.

B. The staff report.

C. A statement of notices published.

D. Evidence received, including oral testimony and exhibits.

E. Electronic recordings.

F. The decision together with findings and conclusions.

G. The SEPA threshold determination and other environmental documents, if applicable. (Ord. 957 § 1 (Exh. A), 2011)

18.37.180 Decision.

A. The hearing examiner’s written decision shall include:

1. The nature and background of the proceeding.

2. Concise findings of fact addressing contested issues of fact, based exclusively on the record.

3. Conclusions of law referencing permit criteria and other specific provisions of the law, together with reasons and precedents relied upon.

4. The hearing examiner’s determination of the appropriate rule, order, or relief, based upon a consideration of the whole record and supported by reliable, probative and substantial evidence.

5. The time frames for reconsideration and appeal.

B. The hearing examiner shall deliver the written decision to the planning official, who then shall mail copies of the decision to all parties of record who have requested in writing a copy of the decision. (Ord. 957 § 1 (Exh. A), 2011)

18.37.190 Reconsideration.

Within 10 days of the date of the hearing examiner’s decision, a party of record may request reconsideration. The request shall set forth alleged errors of fact, law, or procedure, or issues omitted from the hearing examiner’s decision. Any request for reconsideration shall stay further issuance of city permits but shall not stay the time frame for appeal of the hearing examiner’s decision. Within seven days after receiving the request, the hearing examiner shall either:

A. Correct or amend the decision without an additional public hearing; or

B. Set the matter for additional public hearing, in which case notice shall be published anew, including to all parties of record, requesting such notice, not less than 10 working days prior to the hearing date; or

C. Confirm the original decision.

If an additional hearing is reconvened, the examiner’s written decision shall be rendered within 15 working days of the conclusion of the hearing. (Ord. 957 § 1 (Exh. A), 2011)

18.37.200 Decision final action by city.

Unless specifically provided otherwise by ordinance, all decisions of the hearing examiner shall be final action by the city. (Ord. 957 § 1 (Exh. A), 2011)

18.37.210 Subsequent appeal.

Hearing examiner decisions shall be appealable to the Island County superior court pursuant to the Land Use Petition Act, Chapter 36.70C RCW, within 21 days of the date the decision or action became final, unless another applicable appeal process or time period is established by state law or local ordinance. Provided, in the case of appeals from the city’s final decision on shoreline management substantial development permits, appeals shall be to the shoreline hearings board. (Ord. 957 § 1 (Exh. A), 2011)

18.37.220 Continuing jurisdiction.

The hearing examiner shall retain continuing jurisdiction over all variances and conditional use permits. Upon a petition being filed by any person with a substantial and direct interest in a variance or conditional use permit, or by any public official, alleging that a condition has been violated or that modifications to the variance or conditional use permit are necessary, the hearing examiner may call a public hearing for the purpose of reviewing that variance or conditional use permit. Notice of the public hearing shall be as provided in accordance with the requirements of the applicable section of the Langley Municipal Code, as amended. Immediately upon a petition for review being accepted by the hearing examiner, the planning official may, for good cause shown, issue a stop work order to temporarily stay the force and effect of all or any part of the variance or conditional use permit in question until such time as the review is finally adjudicated.

Following a hearing the hearing examiner may reaffirm, modify or rescind all or any part of the variance or conditional use permit being reviewed. Appeal of the hearing examiner decision shall be to the Island County superior court pursuant to Section 18.37.210. (Ord. 957 § 1 (Exh. A), 2011)

18.37.230 Examiner’s quarterly report.

The examiner shall report quarterly in writing to the city council. Each quarterly report shall include a summary of the examiner’s decisions since the last quarterly report and any recommendations the examiner may have for improving the city’s land use regulatory framework.

The examiner shall meet with the city council at a public meeting at least annually for the purpose of reviewing the administration of the city’s land use policies and regulatory ordinances. Such meetings may be held on a quarterly or semi-annual basis if the planning director determines that emergent issues require more timely review. (Ord. 957 § 1 (Exh. A), 2011)

18.37.240 Repealer.

Any and all ordinances or parts of ordinances in conflict with the provisions of this chapter are hereby repealed. (Ord. 957 § 1 (Exh. A), 2011)