Chapter 19.05


19.05.001    General.

19.05.002    Responsibility of administrator for hearing.

19.05.003    Conflict of interest – Ethics – Open public meetings – Appearance of fairness.

19.05.004    Ex parte communications.

19.05.005    Disqualification.

19.05.006    Burden and nature of proof.

19.05.007    Order of proceedings.

19.05.008    Findings and notice of decision.

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

19.05.001 General.

Public hearings on all project permit applications shall be conducted in accordance with this chapter. [RCW 36.70B.020(3).] (Ord. 738 § 1, 1996)

19.05.002 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;

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. 738 § 1, 1996)

19.05.003 Conflict of interest – Ethics – Open public meetings – Appearance of fairness.

The hearing body shall be subject to the code of ethics (RCW 35A.42.020), prohibitions on conflict of interest (RCW 35A.42.020 and Chapter 42.23 RCW) open public meetings (Chapter 42.30 RCW), and appearance of fairness (Chapter 42.36 RCW) as the same now exist or may hereafter be amended. (Ord. 738 § 1, 1996)

19.05.004 Ex parte communications.

A. Quasi-judicial land use decisions of the hearing body shall be subject to Chapter 42.36 RCW, the appearance of fairness doctrine.

B. 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. If a member of the decision-making body receives an ex parte communication in violation of this section, he or she shall place on the record:

1. All written communications received;

2. All written responses to the communications;

3. The substance of all oral communications received, and all responses made; and

4. The identity of each person from whom the member received any ex parte communication.

The decision-making body shall advise all parties at each hearing where action is considered or taken on the subject to which the communication related, that these matters have been placed on the record. Upon request made after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a rebuttal statement on the record.

This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or data from such parties relative to the decision if both the request and the results are 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. (Ord. 766 § 6, 1997; Ord. 738 § 1, 1996)

19.05.005 Disqualification.

A. 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.

B. 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), 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.

C. Anyone seeking to rely upon 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.

D. 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(s) 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. (Ord. 738 § 1, 1996)

19.05.006 Burden and nature of proof.

Except for Type V actions, the burden of proof for demonstrating that the application is consistent with the applicable regulations is on the proponent. 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. 738 § 1, 1996)

19.05.007 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) 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. 738 § 1, 1996)

19.05.008 Findings and notice of decision.

A. Following the hearing procedure described in CHMC 19.05.007, 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 on or before the next regularly scheduled meeting of the hearing body following the close of the record of the hearing on the project permit application and within 90 days of the opening of the hearing, unless a longer period is agreed to by the parties. The notice of final decision shall issue according to the following time frames:

1.  Within 120 days after the city notifies the applicant that the application for a proj-ect permit is complete; [RCW 36.70B.090.]

2.  Within 90 days after the city notifies the applicant that a preliminary plat application is complete; or

3. Within 30 days after the city notifies the applicant that a short plat or final plat application is complete. [RCW 58.17.140.]

The time frames set forth in this section and CHMC 19.05.009 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, IVA and IVB project permits, the notice of decision on the issued permit shall contain the requirements set forth in CHMC 19.04.002 (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. In addition, the city shall provide public notice of the notice of decision as provided in CHMC 19.03.001 (G)(1)(b).

E. 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. [RCW 36.70B.090.] (Ord. 814 § 1, 2000; Ord. 766 § 7, 1997; Ord. 738 § 1, 1996)

19.05.009 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 local government determines whether the additional information satisfies the request for information or 14 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 subsection (A)(1) of this section is insufficient, it shall notify the applicant of the deficiencies and the procedures under subsection (A)(1) 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 local government 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;

5. The parties may agree in writing to extend these time periods. Any extension of time mutually agreed upon by the applicant and the city in writing.

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 CHMC 19.01.007; 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. [RCW 36.70B.090.] (Ord. 738 § 1, 1996)