Chapter 1.20 HEARING EXAMINER SYSTEM

Chapter 1.20
HEARING EXAMINER SYSTEM

Sections:

1.20.010 Purpose.

1.20.020 Office created.

1.20.030 Appointment and terms.

1.20.040 Removal.

1.20.050 Qualifications.

1.20.060 Examiner pro tem.

1.20.070 Freedom from improper influence.

1.20.080 Functions relating to area zoning.

1.20.090 Decisions appealable to the Council.

1.20.100 Recommendations to the Council.

1.20.110 Decisions of the Examiner which are final.

1.20.120 Hearing procedures.

1.20.130 Public hearing.

1.20.135 Appeal hearing.

1.20.140 Procedural notice requirements.

1.20.150 Planning Department report.

1.20.160 General criteria for Examiner decisions.

1.20.170 Additional criteria for pending area zoning – Recommendations.

1.20.180 Additional criteria for zoning decisions.

1.20.190 Additional criteria for subdivision decisions.

1.20.200 Additional criteria for variances.

1.20.210 Examiner actions.

1.20.220 Appeal to Examiner – Notice and content and supplemental information.

1.20.230 Appeal to Council – Notice.

1.20.240 Appeal to Council – Content.

1.20.250 Appeal to Council – Consideration.

1.20.260 Appeal to Council – Council action.

1.20.270 Reconsideration of final action.

1.20.280 Review of final decisions.

1.20.010 Purpose.

The purpose of this chapter is to establish a hearing examiner system under the provisions of Chapter 35A.63 RCW to hear and decide applications for amendments to land use regulations and other matters as specifically assigned by ordinance. (Ord. 90-1045 § 1)

1.20.020 Office created.

The office of Hearing Examiner is hereby created to act on behalf of the City Council by considering and applying zoning and regulatory ordinances to the land as provided herein. The Examiner shall also exercise administrative powers and such other quasi-judicial powers as may be granted by ordinance. (Ord. 90-1045 § 2)

1.20.030 Appointment and terms.

The Examiner shall be appointed by the City Manager, subject to confirmation by the Council, to serve for a term of two (2) years. (Ord. 90-1045 § 3)

1.20.040 Removal.

The Examiner may be removed from office at any time for just cause by the affirmative vote of a majority of the whole membership of the Council. (Ord. 90-1045 § 4)

1.20.050 Qualifications.

The Examiner shall be appointed solely on the basis of qualifications for the duties of the office with special reference to training, actual experience in, and knowledge of administrative or quasi-judicial hearings on zoning, subdivision and other land use regulatory enactments as may be granted by ordinance. (Ord. 90-1045 § 5)

1.20.060 Examiner pro tem.

In the event of the absence or the inability of the Examiner to act on an application, a Hearing Examiner pro tem may be appointed, in the manner specified in SMC 1.20.020, for such application or period of absence, and shall have all the duties and powers of the Examiner. (Ord. 90-1045 § 6)

1.20.070 Freedom from improper influence.

Individual Councilmembers, City officials or any other persons shall not interfere or attempt to interfere with the performance of the Examiner’s designated duties. (Ord. 90-1045 § 7)

1.20.080 Functions relating to area zoning.

Prior to adopting new area zoning, the Council may choose to have the Examiner conduct public hearings to consider individual property requests for changes to the proposed area zoning, in which case such decisions shall be considered as recommendations to the Council. (Ord. 90-1045 § 8)

1.20.090 Decisions appealable to the Council.

For the following cases, the Examiner shall receive and examine available information, conduct public hearings, prepare records and reports thereof, and make decisions, which shall be given the effect of an administrative or legislative decision appealable to the Council:

A. Preliminary subdivisions;

B. Preliminary planned unit developments;

C. Rezone(s) initiated by the property owner(s);

D. Appeals from permit denials or conditions imposed on environmental grounds pursuant to the State Environmental Policy Act;

E. Appeals from threshold determinations concerning applications subject to Council action;

F. Other applications or appeals which the Council may refer by ordinance, specifically declaring that the Hearing Examiner’s decision shall be appealable to the Council. (Ord. 96-1019 § 1: Ord. 96-1008 § 2; Ord. 90-1051 § 2: Ord. 90-1045 § 9)

1.20.100 Recommendations to the Council.

A. Other applications or matters which the Council may refer by ordinance specifically declaring that the Hearing Examiner shall make a recommendation to City Council.

B. Applications for shoreline environment redesignation. (Ord. 96-1008 § 3: Ord. 90-1051 § 1)

1.20.110 Decisions of the Examiner which are final.

For the following cases, the Examiner shall receive and examine available information, conduct public hearings or appeal hearings, prepare records and reports thereof, and make decisions, which shall be final and conclusive:

A. Applications for major conditional use permits;

B. Applications for variances;

C. Applications for shoreline permits when a public hearing is required;

D. Appeals from the decision of the City Manager or designee on applications for short subdivisions and lot line adjustments;

E. Appeals from threshold determinations concerning applications not subject to Council action;

F. Appeals from notices and orders issued as code enforcement actions;

G. Appeals from decisions regarding the abatement of nonconforming uses;

H. Appeals from administrative decisions or determinations by City officials where the governing ordinance provides for an appeal to the Examiner;

I. Other applications or appeals which the Council may prescribe by ordinance;

J. Appeal for a sign amortization extension;

K. Appeals from administrative decisions regarding minor conditional use permits;

L. Conditional use permit – Essential public facilities (CUP – EPF). (Ord. 03-1020 § 4: Ord. 98-1037 § 3; Ord. 97-1011 § 1; Ord. 96-1008 § 4; Ord. 95-1012 § 1: Ord. 90-1045 § 10)

1.20.120 Hearing procedures.

The Examiner shall have the power to prescribe procedures for the conduct of hearings subject to confirmation of the Council; and also to issue summons and subpoena to compel the appearance of witnesses and production of documents and materials, to order discovery, to administer oaths, and to preserve order. (Ord. 90-1045 § 11)

1.20.130 Public hearing.

A. Before rendering a decision on any application, the Examiner shall hold at least one public hearing which shall be electronically recorded. For applications subject to Council action, the public hearing by the Examiner shall constitute a hearing by the Council.

B. Whenever a project requires more than one permit or approval, the Examiner shall order a consolidation of and conduct the required public hearings to avoid unnecessary costs or delays. Decisions of the Examiner to order and conduct consolidated hearings shall be final in all cases. (Ord. 03-1020 § 5: Ord. 96-1008 § 5; Ord. 90-1045 § 12)

1.20.135 Appeal hearing.

The appeal hearing shall be electronically recorded and each party shall have the right to call and cross-examine witnesses. (Ord. 03-1020 § 6)

1.20.140 Procedural notice requirements.

Unless otherwise provided by ordinance, the City Manager, or designee, shall cause notice of the time and place of public hearings to be mailed to all persons of record at least fourteen (14) calendar days prior to the scheduled hearing. Notice of appeal hearings shall be given to the appellant at least thirty (30) days prior to the hearing. Additional notice shall be given as provided in the ordinance governing the particular type of application or appeal. Public hearings may be continued or reopened by the Examiner with written notice to all persons of record at least fourteen (14) calendar days prior to the rescheduled hearing. Public hearings may be continued by the Examiner without additional written notice provided the continuance is made during open session to a specific date, time, and location. (Ord. 03-1020 § 7: Ord. 95-1012 § 1: Ord. 90-1045 § 13)

1.20.150 Planning Department report.

When an application or appeal has been set for hearing, the planning department shall coordinate and assemble the reviews of other departments and governmental agencies having an interest in the subject application or appeal and shall prepare a report summarizing the factors involved and the department findings and recommendation or decision. At least fourteen (14) days prior to the scheduled hearing the report shall be filed with the Examiner and copies thereof shall be mailed to all persons of record who have not previously received said materials. (Ord. 03-1020 § 8: Ord. 90-1045 § 14)

1.20.160 General criteria for Examiner decisions.

A. Each decision of the Examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision.

B. The Examiner’s findings and conclusions shall set forth and demonstrate the manner in which the decision is consistent with, carries out and helps implement applicable State laws and regulations and the regulations, policies, objectives and goals of the Comprehensive Plan, the zoning code, the subdivision code and other official laws, policies and objectives of the City, and that the decision will not be unreasonably incompatible with or detrimental to affected properties and the general public.

C. The Examiner shall accord substantial weight to the recommendation of the Planning Department. (Ord. 90-1045 § 15)

1.20.170 Additional criteria for pending area zoning – Recommendations.

When the Examiner considers individual property owner requests for pending area zoning, the Examiner shall prepare a report which contains additional findings based on the applicable proposed Comprehensive Plan causing the pending area zoning. (Ord. 90-1045 § 16)

1.20.180 Additional criteria for zoning decisions.

When the Examiner issues a decision regarding an application for a reclassification of property, the decision shall include additional findings which support the conclusion that at least one of the following circumstances applies:

A. The property is potentially zoned for the reclassification being requested and conditions have been met which indicate the reclassification is appropriate; or

B. The adopted Comprehensive Plan or area zoning specifies that the property shall be subsequently considered through an individual reclassification application; or

C. The applicant has demonstrated with substantial evidence that the requested reclassification is required in the public interest. (Ord. 96-1008 § 7; Ord. 90-1045 § 17)

1.20.190 Additional criteria for subdivision decisions.

When the Examiner issues a decision regarding an application for a subdivision of property and there are conflicts between adopted plans, portions of plans, or zoning, the following criteria shall apply:

A. In case of conflict in use and density designations between adopted Comprehensive Plans, the most current adopted plan shall govern.

B. In case of conflict in use and density designations between adopted Comprehensive Plans and present zoning, the zoning shall govern. (Ord. 90-1045 § 18)

1.20.200 Additional criteria for variances.

A variance shall not be granted unless the Examiner finds:

A. The variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application was filed is located; and

B. That such variance is necessary, because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located; and

C. That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated.

D. That the special circumstances necessitating the variance have not resulted from any action of the applicant.

E. That the requested variance will not create a use not generally permitted within the zone in which the subject property is located. (Ord. 90-1051 § 3: Ord. 90-1045 § 19)

1.20.210 Examiner actions.

Within ten (10) days of the conclusion of a hearing or rehearing, the Examiner shall render a written recommendation or decision and shall transmit a copy thereof to all persons of record.

A. The Examiner’s decision may be to grant or deny the application or appeal, or the Examiner may grant the application or appeal with such conditions, modifications and restrictions as the Examiner finds necessary to make the application or appeal compatible with the environment and carry out applicable State laws and regulations and the regulations, policies, objectives and goals of the Comprehensive Plan, the zoning code, the subdivision code and other ordinance, policies and objectives of the City.

B. The conditions, modifications and restrictions that the Examiner may impose include additional setbacks, screenings in the form of landscaping or fencing, covenants, easements and dedications of additional road right-of-way. Performance bonds or equivalent measures may be required to insure compliance with the conditions, modifications and restrictions. (Ord. 90-1045 § 20)

1.20.220 Appeal to Examiner – Notice and content and supplemental information.

A. All notices of appeal regarding any decision being appealed to the Examiner shall be filed with the City Clerk only on forms provided by the City Clerk within fourteen (14) days from the date of the decision, together with a filing fee in the amount specified in the City’s schedule of fees by resolution of the City Council.

B. An appellant must file any supplemental written reports, arguments, or briefs within twenty-one (21) days of filing the appeal. (Ord. 03-1020 § 9: Ord. 00-1036 § 1; Ord. 90-1045 § 21)

1.20.230 Appeal to Council – Notice.

Decisions by the Examiner on cases subject to Council action may be appealed to the Council by an aggrieved party by filing a notice of appeal with the City Clerk within fourteen (14) calendar days of the Examiner’s written decision, together with a filing fee in the amount of fifty dollars ($50.00) or in such other amount as may be specified by resolution of the City Council. If no appeal is filed within fourteen (14) calendar days, the Examiner’s decision shall be considered as final and conclusive. (Ord. 03-1020 § 10: Ord. 90-1045 § 22)

1.20.240 Appeal to Council – Content.

If a notice of appeal has been filed, the appellant shall file any written arguments within twenty-one (21) calendar days of the date of the Examiner’s written decision. The written arguments should specify the basis for the appeal and any arguments in support of the appeal. If appeal arguments are not timely filed, the Examiner’s decision shall be considered as final and conclusive. (Ord. 03-1020 § 11: Ord. 90-1045 § 23)

1.20.250 Appeal to Council – Consideration.

Consideration by the Council of the appeal shall be based upon the record of the Examiner’s public hearing and upon written appeal statements based upon the record; provided the Council may allow parties a period of time for oral argument based on the record. The Examiner may conduct a conference with all parties to the appeal for the purpose of clarifying or attempting to resolve certain issues on appeal, provided such conference shall be informal and shall not be part of the public record. If, after consideration of the record, written appeal statements and any oral argument the Council may:

A. Affirm the decision of the Examiner; or

B. Determine that an error in fact or procedure may exist or additional information or clarification is desired, the Council shall remand the matter to the Examiner; or

C. Determine that the recommendation of the Examiner is based on an error in judgment of conclusion, the Council may modify or reverse the decision of the Examiner. (Ord. 90-1045 § 24)

1.20.260 Appeal to Council – Council action.

The Council shall take final action by ordinance or resolution on an Examiner’s recommendation on area zoning or on any appeal of an Examiner’s decision and when doing, the Council shall make and enter findings of fact and conclusions from the record which support its action. Said findings and conclusions shall set forth and demonstrate the manner in which the action is consistent with, carries out and helps implement objectives and goals of the Comprehensive Plan, the zoning code, the subdivision code and other official laws, policies and objectives of the City. The Council may adopt as its own all or portions of the Examiner’s findings and conclusions. (Ord. 90-1045 § 25)

1.20.270 Reconsideration of final action.

The Council may reconsider any action after it has become final if:

A. The action was based in whole or in part on erroneous facts or information;

B. The action when taken failed to comply with existing laws or regulations applicable thereto; or

C. An error or procedure occurred which prevented consideration of the interests of persons directly affected by the action. (Ord. 90-1045 § 26)

1.20.280 Review of final decisions.

A. Decisions of the Council shall be final and conclusive unless appealed pursuant to SMC 15.22.065(G); provided, no development or related action may occur during said twenty (20) day, or thirty (30) day for plat approvals, appeal period.

B. Decisions of the Examiner in cases identified in SMC 1.20.110 shall be final and conclusive, unless appealed pursuant to SMC 15.22.065(G); provided, no development or related action may occur during said appeal period.

C. Notwithstanding the foregoing provisions of this section, final decisions of the Council relating to matters governed by the State Shorelines Management Act shall be appealed to the State Shorelines Hearing Board as specified in the said Act. (Ord. 03-1020 § 12: Ord. 90-1051 § 4: Ord. 90-1045 § 27)