Chapter 18.94 HEARING EXAMINER

Chapter 18.94
HEARING EXAMINER

Sections

18.94.010 Title – Purpose.

18.94.020 Definitions.

18.94.030 Establishment of the office of hearing examiner.

18.94.040 Appointment – Qualifications – Term and compensation.

18.94.050 Hearing examiner and deputy hearing examiner – Removal from office.

18.94.060 Ex parte communications.

18.94.070 Conflict of interest.

18.94.080 Freedom from improper influence.

18.94.090 Budget – Administrative support.

18.94.100 Rules.

18.94.110 Jurisdiction and duties.

18.94.111 Duty to conduct hearings – Decisions to be in writing – Time period.

18.94.112 Matters to be heard by examiner.

18.94.113 Appeal from administrative decisions – Time for filing – Substantial weight requirement – Standard of review – Failure to exhaust administrative remedies.

18.94.114 Decisions – Basis – Conditional.

18.94.120 Application – Land use matters.

18.94.130 Concurrent applications and permit review process.

18.94.140 Dismissal of application.

18.94.150 Notice of hearing – Required.

18.94.160 Notice of hearing – Content.

18.94.170 Persons entitled to notice.

18.94.180 Notice of hearing – When given.

18.94.190 Effect of notice.

18.94.200 Staff reports.

18.94.210 Presentation of evidence.

18.94.220 Rehearing.

18.94.230 Record of hearing – Content.

18.94.240 Decision – Content and distribution.

18.94.250 Decision – Reconsideration.

18.94.260 Appeals from decision of hearing examiner.

18.94.270 Content of appeal.

18.94.280 Timing of appeal.

18.94.290 City council action on appeal – Procedure – Burden of proof – Criteria to affirm, modify, reverse, or remand.

18.94.300 Appeal from decision of the city council.

18.94.310 Variance criteria.

18.94.320 Conditional uses – Criteria.

18.94.330 Appeal fees.

18.94.340 Reference to board of adjustment.

18.94.010 Title – Purpose.

(1) This chapter shall be known and may be cited as the “hearing examiner code.”

(2) The city council finds that the present statutory provisions for quasi-adjudicatory hearings in the city have developed on a piece-meal basis, assigning different types of quasi-adjudicatory hearings to the city council, the board of adjustment, and the planning agency. The purpose of this chapter is to substitute a hearing examiner system authorized by chapter 35A.63 RCW for the board of adjustment, and to grant to the hearing examiner final authority in all matters requiring a quasi-adjudicatory hearing heretofore heard by the board of adjustment under the ordinances of the city and the laws of the state. [Ord. 770 § 1, 1988.]

18.94.020 Definitions.

For the purposes of this chapter:

(1) “Ex parte communication” means any oral or written communication made by any person, including a city employee or official, pertaining to a matter that is or will be within the jurisdiction of the hearing examiner made outside of a public hearing and not included in the public record.

(2) “Party” or “party of record” means any person who has appeared at a hearing of the hearing examiner by presenting testimony or making written comment. [Ord. 770 § 3, 1988.]

18.94.030 Establishment of the office of hearing examiner.

Pursuant to chapter 35A.63 RCW, the office of hearing examiner for the city is established. The hearing examiner shall interpret, analyze, and review administrative decisions and matters concerning land use regulation as provided in this chapter and other ordinances. The term hearing examiner as used in this chapter shall include deputy examiners, except that provisions related to appointment of the hearing examiner and any deputy examiner, as set forth in this chapter, shall apply only to that particular office. [Ord. 770 § 2, 1988.]

18.94.040 Appointment – Qualifications – Term and compensation.

(1) The hearing examiner is nominated by the city manager and confirmed by the city council by majority vote.

(2) The deputy hearing examiner is nominated by the city manager upon recommendation of the hearing examiner and likewise confirmed by the city council. Such deputy or examiner pro tem shall have the power to perform the duties of the hearing examiner whenever the hearing examiner is absent, has a conflict of interest, or otherwise so requests.

(3) The qualifications for the office of hearing examiner are expertise in land use law and planning and the training and experience necessary to conduct administrative or quasi-judicial hearings and issue decisions on administrative and land use planning and regulatory matters.

(4) The hearing examiner and deputy hearing examiner shall be appointed to their respective offices for a term which shall initially expire one year following the date of original appointment and thereafter expire four years following the date of each reappointment.

(5) The hearing examiner shall receive compensation at the rate set in the annual budget ordinance of the city. Deputy hearing examiners shall receive compensation pro rata based on the rate set for the hearing examiner.

(6) The city manager is authorized to appoint a temporary hearing examiner for the city during such time as the regular position of hearing examiner is vacant. Such individual shall carry out the functions of the hearing examiner as described in this chapter. The temporary appointment authorized in this section shall not be construed as the initial term of appointment of the hearing examiner contemplated under this chapter. Such temporary appointment shall be for a period of no longer than six months. [Ord. 801 § 1, 1989: Ord. 770 § 4, 1988.]

18.94.050 Hearing examiner and deputy hearing examiner – Removal from office.

The hearing examiner or deputy hearing examiner may be removed from office by majority vote of city council only upon proof of one of the grounds for termination contained in the city personnel manual. Prior to such removal, the hearing examiner, or deputy hearing examiner, shall have a right to a pretermination hearing before the city council in executive session, or, if the individual so requests pursuant to RCW 42.30.110(1)(f), in open council session. At the pretermination hearing, the council shall hear all interested parties, and following such hearing the council shall state its reasons for removal in writing, if that is the case. The provisions of this section shall be inapplicable where the hearing examiner serves under the terms of a written contract, in which case the hearing examiner may be removed at the expiration of such contract or prior to expiration in accordance with the terms of the contract. [Ord. 770 § 5, 1988.]

18.94.060 Ex parte communications.

(1) No person may communicate ex parte, directly or indirectly, with the hearing examiner. The hearing examiner may not communicate ex parte, directly or indirectly, with any person, unless the hearing examiner makes such communication part of the public record and provides the opportunity to review and comment upon the communicated matter at a public hearing.

(2) This section does not prohibit ex parte communication regarding procedural matters, or preclude communication by the hearing examiner made solely for the purpose of conveying information regarding the specifics of an application or communication with city employees requesting additional information or clarification, so long as such communication and any information and clarification received is made part of the record.

(3) The hearing examiner is required to disclose all ex parte communications and the circumstances under which they are made and, in the hearing examiner’s discretion, may abstain from considering the application that is the subject of such communication. [Ord. 770 § 6, 1988.]

18.94.070 Conflict of interest.

(1) The hearing examiner may not participate in a hearing or decision with respect to which:

(a) The hearing examiner; or

(b) A hearing examiner’s relative, which term includes any spouse, parent, child, sibling, and in-law; or

(d) A business as to which the hearing examiner:

(i) Is an employee;

(ii) Was an employee within the previous two years;

(iii) Is negotiating or has an arrangement, or understanding with concerning future employment;

has a direct or substantial financial interest, except as provided in this section. “Direct or substantial financial interest” includes a substantial interest in property in proximity to property that is the subject of an application.

(2) Prior to a hearing the hearing examiner shall disclose publicly and on the record any actual or potential interest the hearing examiner or any of the persons described in this section has in the outcome of the hearing.

(3) The hearing examiner may participate in a hearing and decision in which an interest described in this section exists if, and only if, the hearing examiner fully discloses such interest and affirms that such interest will not affect the outcome of the hearing or decision and either:

(a) All persons present or who have submitted written comments to the record prior to the hearing agree in writing, on a form provided by the hearing examiner setting forth the interest, to allow the hearing examiner to participate; or

(b) A deputy hearing examiner is not available to hear and decide the matter.

(4) The exception in subsection (3) of this section is to be used only when reasonably necessary to avoid undue delay or prejudice to a party. There is no exception to the duty to disclose under subsection (2) of this section. [Ord. 770 § 7, 1988.]

18.94.080 Freedom from improper influence.

No person, including city officials, elected or appointed, shall attempt to influence an examiner in any matter pending before him, except 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. [Ord. 770 § 8, 1988.]

18.94.090 Budget – Administrative support.

The hearing examiner will be provided with such funds and administrative support as are adopted annually by the city council upon recommendation of the city manager. The hearing examiner will meet annually with the city manager for this purpose. [Ord. 770 § 9, 1988.]

18.94.100 Rules.

The examiner shall have the power to prescribe rules and regulations concerning procedures for hearings authorized in this chapter, to issue summons for and compel the appearance of witnesses, to administer oaths, and to preserve order. The privilege of cross-examination of witnesses shall be accorded all interested parties or their counsel in accordance with rules of the examiner. [Ord. 770 § 10, 1988.]

18.94.110 Jurisdiction and powers.¹

The hearing examiner exercises all powers and authority, as a first level forum in quasi-adjudicatory matters, formerly exercised by the city council and board of adjustment subject to the provisions of chapter 35.14 RCW. [Ord. 770 § 11(A), 1988.]

18.94.111 Duty to conduct hearings – Decisions to be in writing – Time period.

The examiner shall receive and examine available information, conduct public hearings and prepare a record thereof, and enter final decisions, which have the effect of an administrative decision appealable to the city council. Each decision of a hearing examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. In land use matters, such findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the city’s comprehensive plan and the city’s development regulations. Each final decision of a hearing examiner shall be rendered within 14 working days following conclusion of all testimony and hearings, unless a longer period is mutually agreed to in writing by the applicant and hearing examiner. [Ord. 770 § 11(B), 1988.]

18.94.112 Matters to be heard by examiner.

Specifically, the hearing examiner conducts public hearings (where applicable) and renders final decisions on the following:

(1) Type III land use actions as specified by chapter 18.56 DMMC (Land use review procedures);

(2) Appeals of administrative decisions as further provided in this code; and

(3) Such other matters as the city council may from time to time refer. [Ord. 1174 § 71, 1996; Ord. 770 § 11(C), 1988.]

18.94.113 Appeal from administrative decisions – Time for filing – Substantial weight requirement – Standard of review – Failure to exhaust administrative remedies.

Any person or persons aggrieved by any administrative decision, made under a provision of this code which expressly provides that such administrative decision is subject to review by the hearing examiner, may seek review of such decision by the hearing examiner by filing with the city clerk a written notice of appeal of an administrative decision within 10 days of the decision that is being challenged. The city clerk may reject or dismiss any appeal sought to be filed by a person not given the right to appeal under this code, or any incomplete appeal. An appeal will be considered incomplete if it fails to satisfy the requirements set forth above or if it does not provide at least the following:

(1) Applicable filing fee, a schedule of which is available by contacting the city clerk;

(2) The appellant’s name, address, telephone number and fax line, and other information which would facilitate prompt communications with the appellant;

(3) A copy of the administrative decision that is the subject of the appeal;

(4) A detailed statement identifying specifically the error of fact, law or procedure made by the administrative decision-maker, and the effect(s) of the alleged error(s) on the decision that is the subject of the appeal; and

(5) A statement of the redress sought by the appellant.

The administrative decision appealed shall be given substantial weight by the hearing examiner. On any such appeal, the standard of review shall be whether the administrative decision was clearly erroneous based on a review of all evidence, or the administrative decision was arbitrary or capricious. Failure of a party to request review by the hearing examiner of an administrative decision shall be a bar to any further judicial review. [Ord. 1174 § 72, 1996; Ord. 770 § 11(D), 1988.]

18.94.114 Decisions – Basis – Conditional.

In land use matters, the examiner’s decision shall be based on the policies of the comprehensive plan, shoreline master program, Shoreline Management Act, State Environmental Policy Act, the standards set forth in the various land use regulatory codes of the city, or other applicable programs adopted by the city council. If the hearing examiner finds, in reaching his decision based on the above policies and standards, that the land use regulatory code conflicts with any of the local policies or standards, then the hearing examiner will base his decision on the code provision in effect at the time and notify the city council by memorandum directed through the community development department setting forth the nature of the conflict between policies and regulatory code. The hearing examiner may include in a decision any conditions of approval that are necessary to ensure that the proposal (a) complies with all applicable zoning code criteria and comprehensive plan policies, including the Shoreline Management Act and State Environmental Policy Act, and (b) does not present probable significant adverse environmental impacts to surrounding properties or any other affected area. The hearing examiner may revoke an approved permit for failure to comply with any such conditions. Such conditions may include, but are not limited to the following:

(1) Exact location and nature of development, including additional building and parking area setbacks, screenings in the form of landscaped berms, landscaping, or fencing;

(2) Impact of the development upon other lands;

(3) Hours of use of operation or type and intensity of activities;

(4) Sequence and scheduling of development;

(5) Maintenance of the development;

(6) Duration of use and subsequent removal of structures;

(7) Granting of easements for utilities or other purposes and dedication of land or other provisions for public facilities, the need for which the examiner finds would be generated in whole or in significant part by the proposed development;

(8) Mitigation of any significant adverse environmental impacts including off-site improvements reasonably related to the project;

(9) Provisions which would bring the proposal into compliance with the comprehensive plan policy; and

(10) Posting of performance bonds as required to ensure compliance with any conditions, modifications, and/or restrictions imposed on the proposal. [Ord. 770 § 11(E), 1988.]

18.94.120 Application – Land use matters.

(1) An applicant for a proposal requiring action by the hearing examiner must file an application with the community development department. All applications shall be in a format developed by the community development department. The department may require a pre-application conference before accepting an application. The department shall not accept an application until it is complete and meets all the requirements of the department. The community development department shall charge a fee for each application submitted, such fee to be refundable only during the pre-application period.

(2) The application will be processed in such a manner that it may be heard before the hearing examiner within 90 days of the filing of the application. Upon completion of a review of the application, including environmental review, the community development department shall notify the applicant and the hearing examiner that it is ready to proceed with the hearing. A hearing date shall be set within 30 days of such notification to the hearing examiner. The time limits described in this section may be extended by the hearing examiner upon good cause shown by the applicant or community development department. [Ord. 840 § 1, 1990: Ord. 770 § 12, 1988.]

18.94.130 Concurrent applications and permit review process.

Any party proposing a land use project which would require more than one of the permits or approvals under the city’s land use regulations, including the shoreline management plan and the State Environmental Policy Act, or which in addition to at least one such permit or approval would require a use permit under chapter 18.32 DMMC may submit a concurrent application to the community development department, on forms furnished by the department, containing all necessary information. The concurrent application shall thereafter be jointly processed by the city subject to the most lengthy time limitation applicable to any of the required permits or approvals. A reduced fee may be prescribed for concurrent applications reflecting cost savings realized through unified processing. [Ord. 770 § 13, 1988.]

18.94.140 Dismissal of application.

The hearing examiner may dismiss an application, with or without prejudice, pursuant to a request by the applicant to withdraw the application, or for failure of the applicant to attend all required hearings or provide all requested information. [Ord. 770 § 14, 1988.]

18.94.150 Notice of hearing – Required.

(1) All applications to be heard by the hearing examiner, except appeals of an administrative decision, require public notice. Unless the ordinance governing the application provides otherwise, written notice is mailed to all persons entitled by this chapter to receive notice and notice is given by at least one publication in the official newspaper of the city not less than 15 days prior to the scheduled hearing date. The form of the notice and the manner in which it is given shall conform with the requirements of this chapter. The hearing examiner may require or provide such additional notice as deemed necessary to serve the public interest, including publication in a newspaper of general circulation. The community development department shall be responsible for ensuring that appropriate public notice is given.

(2) Public information signs shall be installed, as provided in chapter 16.04 DMMC (SEPA Rules).

(3) On appeals from administrative decisions notice shall be required only to the administrator whose decision is being appealed and the appellant. [Ord. 1174 § 73, 1996; Ord. 770 § 15, 1988.]

18.94.160 Notice of hearing – Content.

Each public notice required by this chapter shall contain at least the following information:

(1) The date, time, and place of the hearing, as designated by the hearing examiner, except legal holidays, specified in DMMC 1.01.055;

(2) A legal description and common location description of the property;

(3) A description of the proposed action;

(4) A statement that any person may appear or be heard and that written comments will be accepted and made part of the record;

(5) A statement that the hearing will be held pursuant to the rules of procedure of the hearing examiner; and

(6) The name, address, and office telephone number of the person within the community development department or other city department from whom additional information may be obtained. [Ord. 1321 § 7, 2003: Ord. 770 § 16, 1988.]

18.94.170 Persons entitled to notice.

(1) The community development department shall cause written public notice to be mailed to all owners of record of property located within 300 feet, exclusive of public rights-of-way, of the property that is the subject of the application, including any property that is contiguous and under the same or common ownership and control.

(2) The community development department shall cause written public notice to be mailed to:

(a) Any person who has made a written request to receive such notice;

(b) Any jurisdiction or government agency that might have an interest in or be affected by a proposed action, as determined by the community development department. [Ord. 770 § 17, 1988.]

18.94.180 Notice of hearing – When given.

Notices of hearings required under this chapter shall be mailed or posted at least 15 days prior to the scheduled hearing date. [Ord. 1174 § 74, 1996; Ord. 770 § 18, 1988.]

18.94.190 Effect of notice.

(1) Failure of a person entitled to notice to receive notice shall not affect the jurisdiction of the hearing examiner to hear the application at the time and place scheduled and to render a decision, if the notice was properly mailed and the property properly posted.

(2) A person is deemed to have received notice if that person appears at the hearing or submits a written statement regarding the hearing even if notice was not properly mailed.

(3) If required notice is not given or posted and actual notice not received, the hearing examiner may reschedule the hearing or keep the record open on the matter to receive additional evidence. [Ord. 770 § 19, 1988.]

18.94.200 Staff reports.

(1) The community development department shall coordinate and assemble the comments and remarks of other city departments and make a written report to the hearing examiner on all applications.

(2) The report of the community development department generally contains a description of the proposed use, a summary of applicable zoning and plan requirements and policies, other applicable requirements and policies, recommended findings and conclusions relating to the proposed use, a recommendation, and proposed conditions if the recommendation is for approval.

(3) At least seven days prior to the scheduled hearing, the department shall file its report with the hearing examiner and cause a copy to be mailed to the applicant or the applicant’s representative. A copy of the report will be made available to any other person if the request for the copy is made at least 24 hours prior to the scheduled hearing.

(4) If a report is not available as provided in this section, the hearing examiner may reschedule or continue the hearing upon his own motion or upon the motion of a party, or the hearing examiner may decide the matter without the report. [Ord. 770 § 20, 1988.]

18.94.210 Presentation of evidence.

(1) Except for hearings on appeals of administrative decisions, any person may testify. In hearings on appeals from administrative decisions, testimony shall be limited to witnesses designated by the administrator whose decision is being appealed, witnesses designated by the appellant, and witnesses designated by any person granted the right of intervention by the hearing examiner.

(2) All reasonably probative (material and relevant) evidence will be permitted. The judicial rules of evidence shall not be strictly applied. The hearing examiner may accord such weight to the evidence as is deemed appropriate.

(3) The hearing examiner may take official notice of judicially cognizable facts and of general, technical, and scientific facts within the hearing examiner’s specialized knowledge, in accordance with the rules of procedure and so long as any such noticed facts are included in the record and findings.

(4) The hearing examiner has the authority to call witnesses and request written evidence in order to obtain the information necessary to make a decision. The hearing examiner may request written comment from and the appearance of the designated representative of any city department that has an interest in or may affect an application for a proposed use.

(5) The hearing examiner may require that testimony be given under oath or affirmation.

(6) The hearing examiner may allow the cross-examination of witnesses.

(7) The hearing examiner may impose reasonable limitations on the number of witnesses to be heard and the nature and length of their testimony to avoid repetitious testimony, expedite the hearing, or avoid continuation of the hearing. This subsection is not intended to preclude or exclude from the record any relevant testimony or evidence.

(8) No testimony or oral statement regarding the substance or merits of an application is allowable after the close of the public hearing. No documentary material submitted after the close of the hearing will be considered by the hearing examiner unless additional time to submit such material has been granted and all parties are given an opportunity to review the material and file rebuttal material or argument. [Ord. 840 § 2, 1990: Ord. 770 § 21, 1988.]

18.94.220 Rehearing.

(1) The hearing examiner may continue or reopen a hearing to take additional testimony, to receive additional evidence, or for any other cause that is reasonable or appropriate; provided, the order continuing or reopening the hearing is entered prior to the issuance of the decision in the case.

(2) If the hearing examiner decides, prior to the close of the hearing, to continue the hearing and then and there specifies the date, time, and place of the subsequent hearing, no further notice is required. If a decision is made to reopen a hearing after the conclusion of the hearing, all parties who originally had notice must be given at least 15 days’ notice of the date, time, place, and nature of the subsequent hearing, and the notice shall be published as provided in this chapter.

(3) A hearing before the hearing examiner shall constitute the hearing of the city council. No new testimony shall be taken or new evidence accepted by the city council; provided, however, the city council may remand a matter to the hearing examiner, pursuant to the hearing examiner code. [Ord. 1174 § 75, 1996; Ord. 770 § 22, 1988.]

18.94.230 Record of hearing – Content.

(1) The hearing examiner shall establish and maintain a record of all proceedings and hearings conducted including a sound recording which shall be accurately transcribed as necessary.

(2) The record of a hearing conducted by the hearing examiner shall include, but is not limited to, the following contents:

(a) The written application or appeal;

(b) The names and addresses of all participants;

(d) All evidence received or considered by the hearing examiner;

(e) The decision or recommendation of the hearing examiner;

(f) Tape recordings of all proceedings; and

(g) Records of notice given of the hearing. [Ord. 770 § 23, 1988.]

18.94.240 Decision – Content and distribution.

(1) The decision of the hearing examiner shall include at least the following content:

(a) A description of the proposed use or action;

(b) The location of the property;

(d) The date, time, and place of the hearing(s);

(e) A list of persons who testified or a summary of such list;

(f) A list of exhibits, or a summary of such list;

(g) A statement identifying the ordinance or criteria governing the application;

(h) Findings of fact and conclusions relating the proposed use to the ordinance and other criteria governing the application; and

(i) The decision denying or approving the application and any conditions, if applicable.

(2) The hearing examiner shall issue a written decision within 14 days of the date of closing of the hearing, unless the applicant agrees in writing to a longer time.

(3) A copy of the decision shall be mailed or otherwise made available to:

(a) The applicant;

(b) The community development department and all other city departments affected by or interested in the decision;

(d) Except in cases of appeal of an administrative decision, all other persons who request that they receive a notice of the decision. [Ord. 770 § 24, 1988.]

18.94.250 Decision – Reconsideration.

(1) The applicant, an opponent of record, or a city department may petition the hearing examiner in writing to reconsider a decision. Such petition must be filed within 10 days of the date of the written decision.

(2) The hearing examiner, within seven days of the date the petition is filed, shall determine whether to deny the petition, issue a new decision, or reopen the hearing as provided in this chapter. The hearing examiner may summarily dismiss a petition for reconsideration that is without merit or brought primarily to secure a delay.

(3) The hearing examiner may reconsider a decision if it is found that:

(a) An error of fact, law, or procedure that is more likely than not to affect the outcome of the decision has been made; or

(b) The petitioner is seeking to enter previously unavailable information that is more likely than not to affect the outcome of the decision.

(4) The filing of a petition for reconsideration shall modify the time for filing an appeal of a decision of the hearing examiner as follows:

(a) If the petition for reconsideration is denied, the time from the date the petition is filed to the date the written denial is issued shall not be counted in the 10 days given to file an appeal by DMMC 18.94.260 (Appeals from decision of hearing examiner).

(b) If the petition is approved, and upon reconsideration the original decision is unchanged, the time from the date the petition is filed to the date the written decision following the reconsideration is issued shall not be counted in the 10 days given to file an appeal by the hearing examiner code.

(c) If the petition for reconsideration is approved and upon reconsideration the original decision is changed, the appeal period provided in DMMC 18.94.260 (Appeals from decision of hearing examiner) starts from the date of the written decision of the reconsideration. [Ord. 1174 § 76, 1996; Ord. 770 § 25, 1988.]

18.94.260 Appeals from decision of hearing examiner.

(1) The applicant, a party of record, or a city department may appeal to the city council any decision of the hearing examiner that does not involve a proposed land use action by filing with the city clerk a written notice of appeal within 10 calendar days of the date of the written decision of the hearing examiner.

(2) The city clerk may reject or dismiss any appeal sought to be filed by a person not given the right of appeal by this section, or any incomplete appeal. An appeal will be considered incomplete if it fails to follow the criteria set forth in this chapter regarding content or timing of appeal.

(3) A party of record may appeal to the Superior Court of Washington for King County any hearing examiner decision in response to a proposed Type I, II, or III land use action by filing a land use petition as specified by chapter 36.70C RCW. [Ord. 1174 § 77, 1996; Ord. 840 § 3, 1990: Ord. 770 § 26, 1988.]

18.94.270 Content of appeal.

An appeal shall not contain any new facts or evidence. An appeal shall contain all of the following:

(1) The file number of the decision being appealed;

(2) The name and address of the appellant;

(3) A detailed statement identifying specifically the error of fact, law, or procedure, and the effect of the alleged error on the decision;

(4) A statement of the redress sought by the appellant;

(5) Filing fee as established by the city manager. A schedule of applicable fees is available by contacting the city clerk. [Ord. 1174 § 78, 1996; Ord. 770 § 27, 1988.]

18.94.280 Timing of appeal.

(1) Within two days of receiving a timely and complete request for appeal, the city clerk shall forward the appeal to the hearing examiner. Within 28 days of receiving the appeal, the hearing examiner shall cause a verbatim transcription of the hearing to be prepared and forward a copy of the appeal with the remaining record of the hearing to the city council with a request that a date for consideration be set. Copies of the record, to the extent practicable, are sent to the appellant and the applicant if different than the appellant.

(2) At the next regular meeting of the city council following receipt of the record from the hearing examiner, the council will schedule the appeal for consideration so that the appeal will be considered within 60 days from the filing of the record with the council. The city clerk shall give notice of the date, time, and place of the council’s consideration of the appeal to all parties of record. [Ord. 840 § 4, 1990: Ord. 770 § 28, 1988.]

18.94.290 City council action on appeal – Procedure – Burden of proof – Criteria to affirm, modify, reverse, or remand.

(1) The city council may affirm, reverse, modify, or remand the decision of the hearing examiner. The city council may adopt all or portions of the hearing examiner’s findings and conclusions. No new testimony shall be taken or new evidence accepted by the city council, except as provided for de novo consideration of a matter as authorized by subsection (3) of this section. The decision of the city council shall be in writing in the city council minutes and shall contain modified or amended findings and conclusions wherever such findings or conclusions are different from those of the appealed decision. Each material finding shall be supported by evidence in the record. The burden of proof with regard to modification or reversal of the decision of the examiner shall rest with the appellant. The decision of the hearing examiner is to be given substantial weight by the city council.

(2) The procedure on appeal to the city council shall be as follows: The presiding officer shall at the onset establish time limitations for oral argument by the appellant and opponent to the appeal; provided, that the appellant may reserve a portion of its time for rebuttal; and provided further, that such time limitations shall not be less than 10 minutes per side. Such oral argument shall be confined to the record and to any alleged errors therein or to any allegation of irregularities in procedure before the hearing examiner. If the city council finds that:

(a) There has been substantial error; or

(b) The proceedings were materially affected by irregularities in procedure; or

(c) The hearing examiner’s decision was unsupported by material and substantial evidence in view of the entire record as submitted; or

(d) The hearing examiner’s decision is in conflict with the city’s comprehensive plan; or

(e) Insufficient evidence was presented as to the impact of the land use action on the surrounding area; or

(f) The appellant is seeking to enter information that was not previously available for reasons beyond the control of that party and that such information is more likely than not to affect the outcome;

it may remand the matter for reconsideration before the hearing examiner, or reject or modify the hearing examiner’s decision; provided, any rejection or modification of the hearing examiner’s decision shall be in the form of written findings and conclusions by council which are supported by evidence in the record.

(3) For a hearing examiner decision that is not related to a proposed land use action, the city council may reject the hearing examiner’s decision and set a public hearing for a date certain at which time the city council will consider the application de novo, or for any reason listed in the preceding subsections (a), (b), (c), or (f) it may choose to modify the hearing examiner’s decision; provided, any such modification shall be in the form of written findings and conclusions by council which are supported by evidence in the record.

(4) Affirmance. If the city council finds neither a procedural nor a factual basis for the appeal and concludes that there has been no substantial error in the hearing examiner’s decision, the city council may adopt the findings of the hearing examiner and affirm the decision of the hearing examiner.

(5) Reversal or Remand Modification.

(a) If the council remands the decision to the hearing examiner, it sets forth in the minutes its reasons and the issues to be considered by the hearing examiner on remand.

(b) Within five days of the date of the council’s written remand order, the hearing examiner mails notice of the council’s decision, the date, time, and place of the remand hearing, and the issues to be considered to all parties of record. The hearing examiner holds a public hearing, limited to the issues set forth in the council’s order, within 30 days of the date of the remand order.

(c) If the city council finds a procedural or a factual basis for the appeal and concludes that there has been a substantial error in the hearing examiner’s decision, the city council may adopt new findings and reverse or modify the decision of the hearing examiner.

(6) The participation of the city attorney or any member of the legal department of the city in such appeal shall be limited to that of legal advisor to the city council. [Ord. 1174 § 79, 1996; Ord. 840 § 5, 1990: Ord. 770 § 29, 1988.]

18.94.300 Appeal from decision of the city council.

If the decision of the city council requires adoption of an ordinance, the decision of the city council shall be considered final on the effective date of the ordinance. Otherwise, the decision of the city council shall be considered final as of the date upon which the city council casts its vote to affirm, modify, or reverse the hearing examiner. The action of the city council, approving, modifying, or reversing a decision of the examiner, shall be final and conclusive, unless an aggrieved party, who was a party of record in the hearing before the examiner and city council, files a land use petition in the Superior Court of Washington for King County as specified by chapter 36.70C RCW, as presently constituted or as may be subsequently amended. However, appeals from city council decisions on shoreline substantial development permits shall be taken to the shoreline hearings board pursuant to the provisions of chapter 90.58 RCW, as presently constituted or as may be subsequently amended. For purposes of the land use petition proceedings, the petitioner shall be responsible for transcribing the record and bear the costs of the transcription. [Ord. 1174 § 80, 1996; Ord. 770 § 30, 1988.]

18.94.310 Variance criteria.

The hearing examiner may grant a variance, in specific cases, from the provisions of the zoning ordinance or other land use regulatory ordinances as the city may adopt, which will not be contrary to the public interest; but only where, owing to special conditions, a literal enforcement of the provisions of such ordinance(s) would result in unnecessary hardship. A variance from the provisions of such

ordinance(s) shall not be granted by the hearing examiner unless the hearing examiner finds that all of the following facts and conditions exist:

(1) 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

(2) 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

(3) That the special conditions and circumstances do not result from the actions of the applicant; and

(4) 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; and

(5) The authorization of such variance will not adversely affect the implementation of the comprehensive land use plan; and

(6) That the granting of such a variance is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by the owners of the other property in the same zone or vicinity; and

(7) No conforming use of neighboring lands, structures, or buildings in the same zone, and no permitted use of lands, structures, or buildings in other zones, shall be considered grounds for issuance of a variance; and

(8) In granting any variance, the hearing examiner may prescribe appropriate conditions and safeguards in conformity with the provisions of the zoning ordinance or other land use regulatory ordinances as the city may adopt. Violation of such conditions and safeguards, when made part of the terms under which the variance is granted, shall be deemed a violation of this section; and

(9) With respect to uses of land, buildings, and other structures, this section is declared to be a definition of the public interest by the city council, and the spirit of this section will be controverted by any variance which permits a use not generally or by special exception permitted in the zone involved, or any use expressly or by implication prohibited, by the terms of this section in the zone; and

(10) Therefore, under no circumstances shall the hearing examiner grant a variance to permit a use not generally or by special exception permitted in the zone involved, or any use expressly or by implication prohibited, by the terms of the zoning ordinance in the zone. [Ord. 1237 § 3, 1999; Ord. 770 § 31, 1988.]

18.94.320 Conditional uses – Criteria.

The hearing examiner may grant a conditional use permit after a hearing if, but only if, sufficient evidence is presented that the characteristics of any such proposed use shall not be unreasonably incompatible with the type of uses permitted in surrounding areas, or, that the proposed use shall not be unreasonably incompatible with the type of uses permitted in surrounding areas if certain conditions are attached to the proposed use. Furthermore, the hearing examiner shall give due regard for the nature and condition of all adjacent uses and structures and any testimony presented with reference to such adjacent uses and structures, and, in authorizing a conditional use, may impose such requirements and conditions with respect to location, landscaping, traffic control, dedication, maintenance, and operation in addition to those expressly set forth in this chapter and other ordinances as may be deemed necessary for the protection of adjacent properties and the public interest. [Ord. 770 § 32, 1988.]

18.94.330 Appeal fees.

The fee for appeals made pursuant to this chapter, excluding DMMC 18.94.300, shall be set by administrative order of the city manager and shall be payable in advance, provided: (1) the city manager shall waive such fees upon a finding of indigence according to standards adopted by the Des Moines municipal court, and (2) the decision-making body shall have discretion and jurisdiction to direct that any fees paid shall be refunded to a prevailing appellant upon a finding of just cause. [Ord. 840 § 6, 1990.]

18.94.340 Reference to board of adjustment.

All references to the board of adjustment in previously enacted ordinances and resolutions of the city shall hereafter mean the hearing examiner. [Ord. 801 § 3, 1989.]

DMMC 18.94.110 – 18.94.114 are former DMMC 18.94.110.