Chapter 2.25
HEARING EXAMINER

Sections:

2.25.010    Purpose.

2.25.020    Office created – Duties.

2.25.030    Appointment.

2.25.040    Qualifications.

2.25.050    Compensation.

2.25.060    Freedom from improper influence.

2.25.070    Conflict of interest.

2.25.080    Prescription of rules for hearings.

2.25.090    Duties.

2.25.100    Land use issues – Report of planning department.

2.25.110    Report to and meeting with Planning Commission and City Council.

2.25.120    Reconsideration.

2.25.130    Appeals.

2.25.010 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 more prompt opportunity for a hearing and decision on certain land use permits, appeals, alleged violations of land use regulations, and such other regulations as may be assigned to the hearing examiner.

(2) Help assure procedural due process and appearance of fairness by holding such hearings before a neutral party, competent in the fields of land use and procedural requirements. (Ord. 39-97 § 1)

2.25.020 Office created – Duties.

Pursuant to Chapters 35A.63 and 58.17 RCW, the office of hearing examiner (examiner) is created. The examiner will interpret, review and implement land use regulations and such other duties as may be assigned. The term “examiner,” includes deputy examiner, examiner pro tem, or substitute examiner. (Ord. 39-97 § 2)

2.25.030 Appointment.

The examiner will be appointed by, and serve at the pleasure of, the City manager. (Ord. 39-97 § 3)

2.25.040 Qualifications.

Examiners will be appointed solely with regard to their qualifications for the duties of the office and must have training and experience as an urban planner, public administrator with experience in planning issues, or legal experience especially with issues dealing with land use. The experience must be such as will qualify them to conduct administrative or quasi-judicial hearings or regulatory enactments and to discharge the other functions conferred upon them. Examiners will hold no other elective or appointive office or position in the City. Knowledge of the State law is required. (Ord. 39-97 § 4)

2.25.050 Compensation.

The examiner is a contract position. Compensation will be as negotiated between the City and examiner. Compensation may be renegotiated yearly. (Ord. 39-97 § 5)

2.25.060 Freedom from improper influence.

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 an examiner in the performance of his duties in any other way; provided, that this section will not prohibit the City attorney from rendering legal services to the examiner. (Ord. 39-97 § 6)

2.25.070 Conflict of interest.

(1) No examiner shall conduct or participate in any hearing, decision or recommendation in which the examiner has a direct or indirect substantial financial or familiar interest, or concerning which the examiner has had substantial prehearing contacts with proponents or opponents wherein the issues were discussed; nor, on appeal from or review of an examiner decision, shall any member of the legislative body who has such an interest or has had such contacts participate in the consideration thereof. This is not intended to prohibit necessary or proper inquiries on matters such as scheduling, but any such contacts are to be entered into the official record of the hearing. Whenever possible, such inquiries and the responses to such inquiries shall be in writing.

(2) The office of the examiner will be separate from and not a part of the planning department. (Ord. 39-97 § 7)

2.25.080 Prescription of rules for hearings.

The examiner will prescribe rules for the scheduling and conduct of hearings and other procedural matters related to the duties of his office. Such rules will provide for rebuttal, and may authorize the examiner to limit the time allowed to parties testifying on an equal basis, and time limits on rebutting. Cross examination of witnesses maybe allowed only in the case of enforcement hearings on violations of City codes. For all other hearings, any person desiring to question other parties testifying at the hearing must direct such questions to the examiner, who will rule on whether or not such questions are to be answered and who will answer them. Also, the examiner will prescribe rules for the suspension of and/or reduction of civil penalties. (Ord. 39-97 § 8)

2.25.090 Duties.

The examiner will receive and examine available information, conduct public hearings and prepare a record thereof, and enter findings, decisions or recommendations as provided in this section.

(1) If the decision of the hearing examiner is a final one, then the appeal of said decision shall be a closed record appeal to the City Council as set forth in CMC 2.25.130.

(2) If the decision of the hearing examiner is on an appeal of a decision of the director, or his designee, of the planning and community development department, then the appeal of said decision shall be to the King County superior court.

(3) In the performance of duties prescribed by this chapter or other ordinances, the examiner may:

(a) Administer oaths and affirmations, examine witnesses, rule upon offers of proof, receive relevant evidence, and conduct discovery procedures which may include propounding interrogatories and taking oral depositions pursuant to Washington State court rules; provided, that no person shall be compelled to divulge information which he could not be compelled to divulge in a court of law;

(b) Upon the request of the City, any party, or upon his own volition, issue and cause to be served subpoenas for the attendance of witnesses and for production for examination of any books, records, or other information in the possession or under the control of any witness; provided, that such subpoena will state the name and address of the witness sought, and if for the production of books, documents or things, will specifically identify the same and then relevance thereof to the issues involved. 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 property books or records or other information in this possession and under his control, the examiner may invoke the aid of the City attorney who will apply to the appropriate court for an order or other court action necessary to secure enforcement of the subpoena;

(c) Regulate the course of the hearing in accord 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 requests or similar matters;

(f) Take any other action authorized by ordinance.

(4) The examiner is hereby empowered to act in lieu of the board of adjustment, the Planning Commission, and such other official, boards or commissions as may be assigned, for land use issues listed in CMC 2.25.100, and other land use issues authorized by the City Council. Wherever existing ordinances, codes or policies authorize or direct the board of adjustment, Planning Commission or other official, boards or commissions to undertake certain activities which the examiner has been assigned, such ordinances, codes or policies will be construed to refer to the examiner. (Ord. 20-99 § 1; Ord. 39-97 § 9)

2.25.100 Land use issues – Report of planning department.

On any land use issue coming before the examiner, the planning department will coordinate and assemble the review of other City departments, governmental agencies, and other interested parties and will prepare a report summarizing the factors involved and the department’s findings and recommendations. At least seven calendar days prior to the scheduled hearing, the report will be filed with the examiner and copies thereof made to the applicant and made available for public inspection. Copies thereof will be provided to interested parties upon payment of reproduction costs. In the event that information to be provided by the applicant or other parties outside of City control has not been provided in sufficient time for filing seven days in advance of the hearing, the planning department may reschedule the hearing and notify interested parties. (Ord. 39-97 § 10)

2.25.110 Report to and meeting with Planning Commission and City Council.

The examiner must report in writing to, and meet with, the Planning Commission and City Council at least annually for the purpose of reviewing the administration of the land use policies and regulatory ordinances, and any amendments to City ordinances or other policies or procedures which would improve the performance of the examiner process. Such report must include a summary of the examiner’s decision since the last report. (Ord. 39-97 § 11)

2.25.120 Reconsideration.

Any aggrieved person feeling that the decision of the examiner is based on erroneous procedures, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for reconsideration by the examiner within 14 days of the date the decision is rendered. This request just set forth the specific errors or new information relied upon by such appellant, and the examiner may, after review of the record, take further action as he or she deems proper. (Ord. 39-97 § 12)

2.25.130 Appeals.

(1) Any party who feels aggrieved by a final decision of the hearing examiner may submit an appeal thereof in writing to the City Council within 14 calendar days from the date of the hearing examiner’s decision. Said appeal shall state specific objections to the decision, including but not limited to specific errors of fact, specific procedural errors, omissions from the record, or errors in the interpretation of the comprehensive plan, and shall state the relief sought. The appeal shall be accompanied by any applicable filing fees.

(2) The record established by the hearing examiner (including testimony, exhibits, comment letters, plans, staff reports, etc.) shall be the record used by the City Council unless it is supplemented by the City Council pursuant to this subsection. A request to supplement the record shall be made in a separate document that is attached to the appeal. The appeal shall not refer to the material that is proposed to be added to the record. A request to supplement the record shall include a brief description of the nature of the material to be added and a separate, attached copy of the material to be added. The request to supplement the record must clearly establish that the new evidence or information to be added to the record was not available or could not have been reasonably produced at the time of the open record hearing before the hearing examiner.

(3)  The City Council may affirm, modify or reverse the hearing examiner’s final decision, remand the matter to the hearing examiner with directions for further proceedings, or grant other appropriate relief. If the City Council reverses or modifies the hearing examiner’s decision, the Council shall enter findings and conclusions to support the decision.

(4) The City Council may establish rules for Council appeals.

(5) All decisions or recommendations by the hearing examiner on two or more permits related to a proposed project may be processed and decided by the City Council at the same time. If the hearing examiner has recommended approval of one such permit, the City Council shall consider said recommendation at the same time it considers any appeal of the hearing examiner’s final decision(s) on any other permit(s) related to the proposed project. (Ord. 20-99 § 2; Ord. 39-97 § 13)