Chapter 19.05


19.05.010    General.

19.05.020    Responsibility of administrator for hearing.

19.05.030    Conflict of interest.

19.05.040    Ex parte communications.

19.05.050    Burden and nature of proof.

19.05.060    Order of proceedings.

19.05.070    Findings and notice of decision.

19.05.010 General.

Open record public hearings on all Type II, III and IV project permit applications shall be conducted as provided in the framework in Section 19.01.030 and in accordance with this chapter. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)

19.05.020 Responsibility of administrator for hearing.

The administrator shall:

A. Schedule an application for review and public hearing;

B. Give notice;

C. Prepare the staff report on the application, which shall be a single report stating all of the decisions made as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall state any mitigation required or proposed under the development regulations or the city’s authority under SEPA. If the threshold determination other than a determination of significance has not been issued previously by the city, the report shall include or append this determination. In the case of a Type I or II project permit application, this report may be the permit. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)

19.05.030 Conflict of interest.

The hearing body shall be subject to the code of ethics and prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23 RCW, as the same now exist or as may be hereafter amended. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)

19.05.040 Ex parte communications.

A. Quasi-judicial land use decisions of the hearing body shall be subject to Chapter 42.36 RCW, Appearance of Fairness, as the same now exists or as may be hereafter amended.

B. No member of the hearing body may be disqualified by the appearance of fairness doctrine for conducting the business of his or her office with any constituent on any matter other than a quasi-judicial action then pending before the hearing body.

C. Prior to declaring as a candidate for public office or while campaigning for public office as defined by RCW 42.17.020(5) and (25), as now exist or as may be hereafter amended, no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine.

D. During the pendency of any quasi-judicial proceeding, no member of a decision-making body may engage in ex parte communications with opponents or proponents with respect to the proposal which is the subject of the proceeding unless that person:

1. Places on the record the substance of any written or oral ex parte communications concerning the decision or action;

2. Provides that a public announcement of the content of the communication and of the parties’ rights to rebut the substance of the communication shall be made at each hearing where action is considered or taken on the subject to which the communication related. This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or date from such parties relative to the decision if both the request and the results are a part of the record. Nor does such prohibition preclude correspondence between a citizen and his or her elected official if any such correspondence is made a part of the record when it pertains to the subject matter of a quasi-judicial proceeding.

E. Anyone seeking to rely on the appearance of fairness doctrine to disqualify a member of a decision-making body from participating in a decision must raise the challenge as soon as the basis for disqualification is made known to the individual. Where the basis is known or should reasonably have been known prior to the issuance of a decision and is not raised, it may not be relied on to invalidate the decision.

F. In the event of a challenge to a member or members of the hearing body which would cause a lack of a quorum or would result in a failure to obtain a majority vote as required by law, any such challenged member(s) shall be permitted to fully participate in the proceeding and vote as though the challenge had not occurred, if the member or members publicly disclose the basis for disqualification prior to rendering a decision. Such participation shall not subject the decision to a challenge by reason of violation of the appearance of fairness doctrine.

G. Except for Type V actions, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or decision unless the member has reviewed the evidence received. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)

19.05.050 Burden and nature of proof.

Except for Type V actions, the burden of proof for demonstrating compliance with development regulations and consistency with SEPA is on the applicant. The project permit application must be supported by proof that it conforms to the applicable elements of the city’s development regulations and comprehensive plan and that any significant adverse environmental impacts have been adequately addressed. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)

19.05.060 Order of proceedings.

The order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures or those procedures set out in other sections of this code as applicable.

A. Before receiving information on the issue, the following shall be determined:

1. Any objections on jurisdictional grounds shall be noted on the record and if there is objection, the hearing body has the discretion to proceed or terminate;

2. Any abstentions or disqualifications shall be determined.

B. The presiding officer may take official notice of known information related to the issue, such as:

1. A provision of any ordinance, resolution, rule, officially adopted development standard or state law;

2. Other public records and facts judicially noticeable by law.

C. Matters officially noticed need not be established by evidence and may be considered by the hearing body in its determination. Parties requesting notice shall do so on the record. However, the hearing body may take notice of matters listed in subsection (B)(2) of this section if stated for the record. Any matter given official notice may be rebutted.

D. The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner and circumstances of such view on the record.

E. Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.

F. When the presiding officer has closed the public hearing portion of the hearing, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)

19.05.070 Findings and notice of decision.

A. A notice of final decision on an application shall be issued within one hundred twenty days after the date of the declaration of completeness, unless additional time is required due to environmental review, agency consultations or is needed to complete required studies or reports. In determining the number of days that have elapsed, the following periods shall be excluded:

1. Any period during which the applicant has been requested by the administrator to correct plans, perform required studies, or provide additional information or materials. The period shall be calculated from the date the administrator issues the request to the applicant to the earlier of the date the administrator determines whether the additional information satisfies its request or fourteen days after the date the information has been received by the city;

2. If the administrator determines the information submitted by the applicant under subsection (A)(1) of this section is insufficient, it shall again notify the applicant of deficiencies, and the procedures of this section shall apply to the request for information;

3. Any period during which an environmental impact statement (EIS) is being prepared following a determination of significance pursuant to Chapter 43.21C RCW;

4. Any period for administrative appeals;

5. Any extension of time mutually agreed upon by the applicant and the administrator.

B. The time limit by which the jurisdiction must issue a notice of final decision does not apply if an application:

1. Requires an amendment to a comprehensive plan or development regulation;

2. Is substantially revised by the applicant after a determination of completeness has been issued, in which case the time period shall start from the date on which the revised project application is determined to be complete.

C. If the administrator is unable to issue its final decision within the time limits provided for in this chapter, it shall provide written notice of this fact to the applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of final decision.

D. In accordance with state law, the local jurisdiction is not liable for damages which may result from the failure to issue a timely notice of final decision.

E. The local jurisdiction shall file the final decision on shoreline permits with the Department of Ecology in accordance with WAC 173-27-130, as amended. (Ord. 873 § 3 (Att. C) (part), 2015: Ord. 639 § 1 (part), 1996)