Chapter 19.05


19.05.010    General.

19.05.020    Responsibility of director 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.

19.05.080    Calculation of time periods for issuance of notice of final decision.

19.05.010 General.

Open record public hearings on qualifying or specially designated Type II project permit applications (including appeals), shall be conducted in accordance with this chapter. Open record public hearings on all Types III and IV project permit applications shall be conducted pursuant to Chapter 2.14. (Ord. 617B § 6, 2012: Ord. 472 § 1 (part), 1996)

19.05.020 Responsibility of director for hearing.

The director 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;

D.    Prepare the notice of decision, if required by the hearing body and/or mail a copy of the notice of decision to those required by this code to receive such decision. (Ord. 472 § 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. 472 § 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 dated 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. 472 § 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, comprehensive plan and that any significant adverse environmental impacts have been adequately addressed. (Ord. 472 § 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 as appropriate.

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. 472 § 1 (part), 1996)

19.05.070 Findings and notice of decision.

A.    Following the hearing procedure described in this chapter, the hearing body shall approve, conditionally approve or deny the application. If the hearing is an appeal, the hearing body shall affirm, reverse or remand the decision that is on appeal.

B.    The hearing body’s written decision shall issue within ten days after the hearing on the project permit application. The Notice of Final Decision shall issue within one hundred twenty days after the city notifies the applicant that the application is complete. The time frames set forth in this section and Section 19.05.080 shall apply to project permit applications filed on or after April 1, 1996.

C.    The city shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for administrative appeal, if any. For Type II, III and IV project permits, the notice of decision on the issued permit shall contain the requirements set forth in Section 19.04.020(A).

D.    The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.

E.    The notice of decision shall be provided to the public as set forth in Section 19.03.010(A)(2) by publication.

F.    If the city is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project 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 decision. (Ord. 472 § 1 (part), 1996)

19.05.080 Calculation of time periods for issuance of notice of final decision.

A.    In determining the number of days that have elapsed after the local government has notified the applicant that the application is complete for purposes of calculating the time for issuance of the notice of final decision, the following periods shall be excluded:

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

2.    If the city determines that the information submitted by the applicant under subdivision 1 of this subsection is insufficient, it shall notify the applicant of the deficiencies and the procedures under subdivision 1 of this subsection shall apply as if a new request for studies had been made;

3.    Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW, if the city by ordinance has established time periods for completion of environmental impact statements, or if the city and the applicant in writing agree to a time period for completion of an environmental impact statement;

4.    Any period for administrative appeals of project permits, if an open record appeal hearing or a closed record appeal, or both, are allowed. The time period for consideration and decision on appeals shall not exceed: (a) ninety days for an open record appeal hearing, and (b) sixty days for a closed record appeal. The parties may agree to extend these time periods;

5.    Any extension of time mutually agreed upon by the applicant and the city in writing; and

B.    The time limits established in this title do not apply if a project permit application:

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

2.    Requires approval of the siting of an essential public facility as provided in RCW 36.70A.200;

3.    Is an application for a permit or approval described in Section 19.01.070; or

4.    Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete under RCW 36.70B.070 and Sections 19.02.020 and 19.02.030 of this title. (Ord. 472 § 1 (part), 1996)