Chapter 2.58
HEARING EXAMINER

Sections:

2.58.010    Hearing examiner.

2.58.020    Appointment and term.

2.58.030    Qualifications.

2.58.070    Improper influence, conflict of interest and appearance of fairness.

2.58.080    Rules.

2.58.090    Powers of the examiner.

2.58.095    Takings and substantive due process review and modifications.

2.58.100    Applications for permits or approvals.

2.58.110    Distribution of information.

2.58.115    Hearing examiner subpoenas.

2.58.120    Notices and hearings – Appeal rights.

2.58.125    Dismissals.

2.58.130    Examiner’s decision.

2.58.135    Reconsideration.

2.58.140    Notice of examiner’s decision.

2.58.150    Appeal from examiner’s decision.

2.58.160    City council consideration – Procedural rules.

2.58.170    City council action.

2.58.180    Judicial appeals.

2.58.190    Council review – Hearing examiner functions.

2.58.010 Hearing examiner.

The purpose of this chapter is to:

A.    With regard to land use matters:

1.    Provide a single, efficient and effective land use regulatory hearing system;

2.    Ensure and expand the principles of fairness and due process in land use regulatory hearings;

3.    Separate the city’s land use regulatory function from its land use planning function.

B.    With regard to other matters:

1.    Provide a single, efficient integrated system for hearing appeals of administrative decisions;

2.    Provide a forum to hear other matters as established by city code.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.020 Appointment and term.

The examiner shall be appointed by the mayor and shall serve at the mayor’s discretion. The mayor may also appoint, for terms and functions deemed appropriate, examiners pro tem to serve in the event of the examiner’s absence or inability to act.

(Ord. O2010-014, Amended, 06/15/2010; Ord. 1259, Added, 11/06/1990)

2.58.030 Qualifications.

Examiners shall be appointed solely with regard to their qualifications for the duties of their office and will 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 the governmental structure of the city.

(Ord. O2010-014, Amended, 06/15/2010; Ord. 1259, Added, 11/06/1990)

2.58.070 Improper influence, conflict of interest and appearance of fairness.

A.    No person, including city officials, elective or appointive, shall attempt to influence an examiner in any matter pending before the examiner, except at a public hearing duly called for such purpose, or to interfere with an examiner in the performance of the examiner’s duties in any other way; provided, that this section shall not prohibit the city attorney from rendering legal services to the examiner upon request. No member of the council shall participate in any proceeding on appeal from an examiner’s decision if to do so would constitute a conflict of interest or violation of the Appearance of Fairness Doctrine.

B.    No examiner shall conduct or participate in any hearing, decision or recommendation in which the examiner has a direct or indirect substantial financial or familial interest, or concerning which the examiner has had substantial prehearing contacts with proponents or opponents.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.080 Rules.

The examiner shall have the power to prescribe rules not in conflict with this chapter for the scheduling and conduct of hearings and other procedural matters related to the duties of this office.

(Ord. O2010-014, Amended, 06/15/2010; Ord. 1259, Added, 11/06/1990)

2.58.090 Powers of the examiner.

The hearing examiner shall have the following duties with respect to applications of matters submitted before him or her:

A.    The examiner shall receive and examine all available information, conduct public hearings and prepare a record thereof and enter findings of fact and conclusions based upon these facts, which conclusions shall represent the final action on the application, unless appealed as provided for herein, for the following matters:

1.    Variances;

2.    Conditional use permits;

3.    Preliminary plats, replats, and plat alterations when a hearing is requested pursuant to RCW 58.17.215;

4.    Administrative land use appeals;

5.    Shoreline permits;

6.    SEPA appeals;

7.    Site-specific rezone not requiring a comprehensive plan amendment;

8.    Planned unit development;

9.    Impact fee determinations;

10.    Concurrency determinations;

11.    Reasonable use exceptions;

12.    Such additional matters as are described in TMC 14.08.030;

13.    Administrative orders and civil penalties issued for violations of TMC Chapters 12.32, 13.12, 16.20 and 16.32;

14.    Business license denials or revocations;

15.    Code violations pursuant to TMC Chapter 1.10.

B.    The examiner shall have any duties and related authority prescribed to the hearing examiner by this code or other city ordinance.

C.    The examiner is authorized to act in lieu of the building board of appeals. Wherever existing ordinances, codes or policies authorize or direct the building board of appeals to undertake certain activities, such ordinances, codes or policies shall be construed to refer to the hearing examiner.

D.    The decision of the hearing examiner shall be final unless such decision is appealed to Thurston County superior court pursuant to TMC 2.58.180.

(Ord. O2013-018, Amended, 09/17/2013; Ord. O2012-009, Amended, 08/06/2012; Ord. O2010-014, Amended, 06/15/2010; Ord. O2009-018, Amended, 01/19/2010; Ord. O2005-021, Amended, 09/06/2005; Ord. O96-024, Amended, 09/17/1996; Ord. O96-004, Amended, 04/16/1996; Ord. O95-022, Amended, 11/07/1995; Ord. 1333, Amended, 10/20/1992; Ord. 1278, Amended, 08/20/1991; Ord. 1259, Added, 11/06/1990)

2.58.095 Takings and substantive due process review and modifications.

A.    In addition to the powers described in TMC 2.58.090, the hearing examiner is hereby authorized to hear, by way of appeal or upon review of a project permit application, all assertions of project-specific taking of property for public use without just compensation and/or the denial of substantive due process of law, and all challenges to imposition of conditions on a project of a similar nature, whether based on constitutional, statutory or common law. Failure to raise a specific challenge to such condition or exaction shall constitute a waiver of such issue and a failure to exhaust an administrative remedy.

B.    In deciding and resolving any such issue, the examiner may consider all law applicable to the city. Should the examiner determine that, but for a taking without just compensation or a violation of substantive due process of law, imposition of any such condition would be required by standard, regulation, or ordinance, the examiner shall so state in the decision and so report to the Tumwater city council. In lieu of failing to impose such condition, the examiner shall first provide the city with due opportunity to provide just compensation. The examiner shall specify a time period in which the council shall elect to or not to provide just compensation. Upon notice of the election of the city council not to provide such compensation, the examiner is authorized to and shall, within fourteen days, issue a decision modifying to whatever degree necessary such condition to eliminate the taking or violation of substantive due process.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996)

2.58.100 Applications for permits or approvals.

A.    Applications for permits or approvals within the jurisdiction of the hearing examiner shall be presented to and processed by the department of community development as set forth in TMC Title 14, Development Code Administration.

B.    Consolidated Appeals. All appeals of project permit application decisions, other than an appeal of determination of significance (DS) or otherwise provided by law, shall be considered together in a consolidated appeal. (RCW 36.70B.070(6), 43.21C.075.)

(Ord. O2011-002, Amended, 03/01/2011; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.110 Distribution of information.

The department of community development shall provide for the distribution of reports, comments and other appropriate information, including those of other government agencies, to the hearing examiner. This process shall comply with the provisions of TMC Title 14, Development Code Administration, and the provisions of this chapter. In addition thereto, the department shall prepare a report summarizing the factors involved and the department’s findings and recommendations. At least five working days prior to the scheduled hearing, the report shall be filed with the examiner and copies thereof shall be mailed to the applicant and made available for public inspection. Copies thereof shall be provided to interested parties upon payment of reproduction costs.

(Ord. O2011-002, Amended, 03/01/2011; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.115 Hearing examiner subpoenas.

A.    A subpoena issued by the hearing examiner may be served by any person eighteen years of age or over, competent to be a witness, but who is not a party to the matter in which the subpoena is issued.

B.    Each witness subpoenaed by the hearing examiner as a witness shall be allowed the same fees and mileage as provided by law for paid witnesses in courts of record in this state.

C.    If a person fails to obey a subpoena issued by the hearing examiner in an adjudicative proceeding, or obeys the subpoena but refuses to testify or produce documents when requested concerning a matter under examination, the hearing examiner or attorney issuing a subpoena may petition the Tumwater municipal court for enforcement of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, shall set forth in what specific manner the subpoena has not been complied with, and shall request an order of the court to compel compliance. Upon such petition, the court shall enter an order directing the person to appear before the court at a time and place fixed in the order to show cause why the person has not obeyed the subpoena or has refused to testify or produce documents. A copy of the court’s show cause order shall be served upon the person. If it appears to the court that the subpoena was properly issued, and that the particular questions the person refused to answer or the requests for production of documents were reasonable and relevant, the court shall enter an order that the person appear before the hearing examiner at the time and place fixed in the order and testify or produce the required documents, and on failing to obey this order the person shall be dealt with as for contempt of court.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O2005-021, Added, 09/06/2005)

2.58.120 Notices and hearings – Appeal rights.

In the furtherance of the responsibilities of the hearing examiner, the city shall comply with the notice and hearing requirements set forth in TMC Chapter 14.06 or such other code related or statutory notice and hearing requirements as are applicable to the proceeding. At the commencement of the hearing, the examiner shall give oral notice regarding the register provided for in TMC 2.58.140. At the conclusion of the hearing, those present shall be advised of appeal rights and the hearing examiner shall specifically advise that the scope of appeal shall be strictly limited to the specific assignment of error alleged by any appealing party.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-039, Amended, 11/05/1996; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.125 Dismissals.

A petitioner’s failure to state specific grounds of the appeal and relief sought may result in dismissal of such appeal. The city staff or any party may request dismissal of an appeal at any time with notice to all parties. Upon finding that the appeal fails to state cause to reverse or modify the decision or that the examiner lacks jurisdiction to grant relief, the examiner may dismiss such appeal without hearing. The examiner shall state in writing whether such dismissal is with or without prejudice.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Added, 04/16/1996)

2.58.130 Examiner’s decision.

A.    Within ten working days of the conclusion of a hearing, unless a longer period is agreed to in writing by the applicant or appellant, the examiner shall render a written decision which shall include at least the following:

1.    Findings based upon the records and conclusions therefrom which support the decision. Such findings and conclusions shall also set forth the manner by which the decision conforms to applicable laws and regulations. For purposes of land use decisions, this would include the manner by which the decision would carry out and conform to the city’s comprehensive plan, other official policies and objectives, and land use regulatory enactments;

2.    A decision on the application which may be to grant, deny or grant with such conditions, limitations, modifications and restrictions as the examiner finds necessary to make the application compatible with applicable laws and regulations, including but not limited to compatibility with its environment, the comprehensive plan, other official policies and objectives, and land use regulatory enactments;

3.    A statement as to appeal rights of any party (quasi-judicial or judicial) including the jurisdictional time limits for such appeal. See TMC 2.58.150, 2.58.160 and 2.58.180.

B.    Except where the parties have agreed to extend time periods, the time period for consideration and decision on appeals shall not exceed:

1.    Ninety days for open record hearings; and

2.    Sixty days for a closed record appeal.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.135 Reconsideration.

Upon the written request of a party of record filed with the city clerk within five working days of the hearing examiner’s written decision, such decision may be reconsidered at the discretion of the hearing examiner. The request for reconsideration must state the grounds upon which the request is made. In the event reconsideration is granted, the hearing examiner shall have an additional ten working days to render a written final decision.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-039, Added, 11/05/1996)

2.58.140 Notice of examiner’s decision.

Not later than five working days following the rendering of a written decision, copies thereof shall be mailed to the applicant, other parties of record in the case, and all other persons who specifically request notice of decision by signing a register provided for such purpose at the public hearing. The original of the decision shall be transmitted to the city clerk.

(Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.150 Appeal from examiner’s decision.

A.    In cases where the examiner’s jurisdictional authority is to render a decision, the decision of the examiner shall be final and conclusive unless appealed to superior court within the applicable appeal period as set forth in TMC 2.58.180.

B.    In cases where the hearing examiner decision is appealable to the city council, the decision of the examiner shall be final and conclusive unless appealed within the applicable appeal period as set forth in this section.

C.    Appeals to the city council must be filed with the city clerk by the applicant or other party of record, a department of the city, county or other agency within fourteen calendar days following rendering of such decision. Persons not in attendance at the hearing but who submit written information prior to the hearing which becomes a part of the record of the hearing shall also have appeal rights. Such appeal shall be in writing, shall contain all grounds on which error is assigned to the examiner’s decision and shall be accompanied by a fee as established by resolution of the city council; provided, that such appeal fee shall not be charged to a department of the city or to other than the first appellant.

D.    In the event an apparent prevailing party files an appeal to preserve appeal rights and no opposing appeals are filed, said party may, by giving written notice thereof to the city clerk, abandon their appeal and in such event shall be refunded their filing fee.

E.    The timely filing of an appeal shall stay the effective date of the examiner’s decision until such time as the appeal is adjudicated by the city council or is withdrawn.

F.    Within five days after the final day upon which an appeal may be filed, notice thereof and of the date, time and place for city council consideration shall be mailed to the applicant, all other parties of record and anyone who submitted written information prior to the hearing. Such notice shall additionally indicate the deadline for submittal of written arguments as prescribed in TMC 2.58.160.

(Ord. O2012-009, Amended, 08/06/2012; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-039, Amended, 11/05/1996; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.160 City council consideration – Procedural rules.

An examiner’s decision which has been timely appealed pursuant to TMC 2.58.150(B) shall come on for city council consideration as a closed record appeal hearing within thirty days after the final day upon which an appeal may be filed.

The appellant and parties of record must submit the written argument to the city clerk no later than ten days preceding the city council meeting at which the matter is scheduled to be heard.

An oral argument of up to ten minutes’ duration or such additional amounts as the mayor deems appropriate (excluding time devoted to answering questions) will be allowed if a written argument was timely submitted. Both the written and oral argument must be within the scope of the appeal. To be within the scope of the appeal, the written and oral argument must be directly related to the specific error assigned to the hearing examiner’s decision filed within fourteen days of the hearing examiner’s decision.

City staff/examiner shall submit in writing a summary of the findings, conclusions and decision, as well as the alleged errors forming the basis of the appeal. The city council shall consider the matter based upon the written record before the examiner, the examiner’s decision, and the written appeal of any petitioner or party of record and shall not consider written argument or documentation not within the scope of the appeal. The scope of appeal is limited to the assignment of error set forth in the written appeal of any petitioner.

(Ord. O2012-009, Amended, 08/06/2012; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-039, Amended, 11/05/1996; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.170 City council action.

A.    An examiner decision which constitutes a decision or recommendation shall come before the city council in an open public meeting no longer than thirty days from the date a decision constituting a recommendation was rendered.

B.    The city council may accept, modify or reject the examiner’s decision or recommendation, or any findings or conclusions therein, or may remand the decision or recommendation to the examiner for further hearing. A decision by the city council to modify, reject or remand shall be supported by findings and conclusions.

C.    In cases of appeal, if the council finds that:

1.    The examiner’s conclusions or decision contain substantial error or are inconsistent with the city’s adopted plans, policies or ordinances, or are not based on findings established by the examiner; or

2.    The examiner’s proceedings were materially affected by irregularities in procedure; or

3.    The examiner’s findings were unsupported by substantial evidence in view of the entire record as submitted;

it may remand for further hearing before the hearing examiner or may reverse the hearing examiner’s decision. In addition, the council may choose to modify the examiner’s decision based on the above criteria. Further, any proposal may be continued to a time certain for additional city staff analysis desired by the council, before a final determination by the council.

If the council determines that there is no basis for the alleged errors set forth in the appeal, it may adopt the findings and conclusions of the hearing examiner and accept the decision of the hearing examiner.

Upon finding that the city council lacks jurisdiction to grant relief, the city council may dismiss the appeal without hearing.

D.    The city council shall render its decision within thirty calendar days after consideration in open public meeting unless all parties affected agree to an extension of such date. The action of the city council in approving, modifying or rejecting a decision of the examiner shall be final and conclusive unless a land use petition is timely filed with the Thurston County superior court in accordance with TMC 2.58.180.

(Ord. O2012-009, Amended, 08/06/2012; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.180 Judicial appeals.

Final decisions (after exhausting administrative remedies) may be appealed by a party of record with standing to file a land use petition in the Thurston County superior court, except shoreline permit actions which may be appealed to the shoreline hearings board. Such petition must be filed within twenty-one days of issuance of the decision as provided in Chapter 36.70C RCW.

(Ord. O2012-009, Amended, 08/06/2012; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)

2.58.190 Council review – Hearing examiner functions.

The director of community development shall at least annually provide the city council with a written report of the nonappealed decisions of the hearing examiner for the previous period for the purpose of reviewing the administration of the development code and the city’s land use policies and regulations.

(Ord. O2011-002, Amended, 03/01/2011; Ord. O2010-014, Amended, 06/15/2010; Ord. O96-004, Amended, 04/16/1996; Ord. 1259, Added, 11/06/1990)