Chapter 11.30
HEARING EXAMINER
Sections:
11.30.010 Rules of general application.
11.30.020 Scope of hearing examiner rules.
11.30.030 Rules of practice for public hearings.
11.30.040 Departmental staff reports.
11.30.060 Hearing examiner qualifications and eligibility.
11.30.070 Hearing examiner appointment and term.
11.30.080 Hearing examiner removal.
11.30.090 Hearing examiner reimbursement.
11.30.010 Rules of general application.
(a) Scope of Rules of General Application. The rules in this chapter apply to all land use and zoning proceedings before the hearing examiner.
The hearing examiner is established to:
(1) Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this title;
(2) Hear, decide and grant or deny variances to the regulations or restrictions contained in this title; and
(3) Hear, decide and grant or deny conditional use permits to the regulations or restrictions contained in this title.
(b) Expeditious Proceedings. It is the policy of the hearing examiner that, to the extent practicable and consistent with the requirements of law, public hearings shall be conducted expeditiously. In the conduct of such proceedings, the hearing examiner and all parties, or their agents, shall make every effort at each stage of a proceeding to avoid delay.
(c) Ex Parte Communications.
(1) No person, or his/her agent, employee, or representative, who is interested in a particular petition or application which is designated for an adjudicatory hearing shall communicate ex parte, directly or indirectly, with the hearing examiner concerning the merits of that or a factually related petition or application. This rule shall not prohibit ex parte communications concerning procedural matters.
(2) The hearing examiner shall not communicate ex parte directly or indirectly with any person, nor his/her agent, employee or representative, interested in a particular petition or application which is designated for an adjudicatory hearing, with regard to the merits of that or a factually related petition or application. This rule shall not prohibit ex parte communications concerning procedural matters.
(3) If a substantial prohibited ex parte communication is made to or by the hearing examiner, such communication shall be publicly disclosed and the examiner shall, within his/her discretion, abstain from participating in any consideration of the matter and from voting.
(4) For purposes of this rule on ex parte communications, “ex parte communication” means a written or oral communication not included in the public record and made outside of a public hearing.
(d) Affidavit of Notice. A notarized affidavit attesting to the written notice of a given public hearing shall be made a part of each official case record.
(e) Presence of Legal Counsel at Public Hearings or Meetings. At the request and discretion of the hearing examiner, the city of Connell’s city attorney may be present at public hearings or meetings to advise on matters of law and procedure.
(f) Evidence. Relevant material and reliable evidence shall be admitted. Irrelevant, immaterial, unreliable and unduly repetitious evidence may be excluded.
(g) Record.
(1) Electronic Record. Hearings shall be electronically recorded and such recordings shall be a part of the official case record. Copies of the electronic recordings of a particular proceeding shall be made available to the public on request. Reasonable cost for such copying shall be paid by the requester.
(2) Copies of any written materials in the record may be obtained by any interested person, although that person shall be responsible for paying the cost of reproducing such material.
(h) Oath. All testimony before the hearing examiner shall be taken under oath.
(i) Computation of Time. Computation of any period of time prescribed or allowed by these rules shall begin with the first business day following that on which the act or event that initiated such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday, or national or state holiday, the period shall run until the end of the next business day.
(j) Definitions. The following definitions shall apply, unless context or subject matter otherwise requires:
(1) “Comprehensive plan” means all development goals, policies, text and maps which have been adopted by the city council of the city of Connell, which are in effect at the time of submission of a petition or application.
(2) “Council” means the Connell city council.
(3) “Examiner” means the hearing examiner.
(4) “Interested person” means any individual, partnership, corporation, association, or public or private organization of any character significantly affected by, or interested in, proceedings before the hearing examiner. This shall include any party in a contested case.
(5) “Party of record” means any of the following:
(A) The applicant; or
(B) Persons submitting written arguments, dealing with the merits of the case;
Provided, that persons who do not qualify as a party of record may receive notice of a decision or recommendation by submitting their names and addresses to the hearing examiner’s office with such a request. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.010).
11.30.020 Scope of hearing examiner rules.
The rules in this chapter govern procedure before the hearing examiner in proceedings involving the following:
(1) Violations of the city zoning, subdivision, critical area natural resource area regulations, noncompliance with any part of the city comprehensive plan, or business license program and regulations, the operation of offensive, odoriferous or unsanitary business or activities; accumulations of refuse constituting health, fire or safety hazards; any land use activity which depreciates land values, is unsightly, creates fumes, odors, or unsanitary conditions, creates traffic hazards (i.e., water/irrigating of city rights-of-way, objects/structures/garbage in the city rights-of-way, and intersectional/vision triangle violations), or activities which pose a danger to public health, safety or welfare or the economic well-being of the community.
(2) Requests for variances to the regulations or restrictions contained in this title. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.020).
11.30.030 Rules of practice for public hearings.
(a) Scope of Rules—Nature of Proceedings.
(1) Frequency. Hearings will be scheduled as required with adequate notice.
(2) Format. The format for a public hearing will be of an informal nature yet designed in such a way that the evidence and facts relevant to a particular proceeding will become readily and efficiently available to the hearing examiner. A public hearing shall include, but need not be limited to, the following elements: a brief introductory statement by the examiner; a report by the department staff which shall include introduction of the official file, reference to visual aids (maps or plans) and a summary of the recommendation of the department; testimony by the applicant or petitioner; testimony in support; testimony of opposing parties; opportunity for cross-examination and rebuttal; and opportunity for questions by the hearing examiner.
(3) View Trip. When necessary, to a gain a full understanding of the case, the hearing examiner may, at his/her discretion, inspect the site prior or subsequent to the hearing. Failure to inspect the site will not render the examiner’s recommendation or decision void.
(b) Hearings.
(1) Rights of Parties. Every party shall have the right of due notice, cross-examination (rebuttal), presentation of evidence, objection, and all other rights essential to a fair hearing. The hearing examiner may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony. Cross-examination is permitted as necessary for a full disclosure of the facts.
(2) Evidence.
(A) Burden of Proof. In each particular proceeding, the city shall have the burden of proof.
(B) Admissibility. The hearing generally will not be conducted according to technical rules relating to evidence and procedure. Any relevant evidence shall be admitted if it is the type which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The rules of privilege shall be effective to the extent recognized by law.
(C) Copies. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.
(D) Official Notice. The hearing examiner may take official notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within his/her specialized knowledge. When any recommendation or decision of the hearing examiner rests, in whole or in part, upon the taking of official notice of a material fact not appearing in evidence of record, opportunity to disprove such facts so noted shall be granted any affected person making timely motion thereof. The hearing examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding.
(E) Evidence Received Subsequent to the Hearing. If additional evidence is submitted after the public hearing, it will be only upon a showing of significant relevance and good cause for delay in its submission. All parties of record will be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments.
(3) Continuation of Hearing.
(A) Cause. The hearing examiner may continue or reopen proceedings for any good cause he/she deems reasonable and appropriate, provided an order for such action is entered prior to the filing of the recommendation or decision.
(B) Notification. If the proceeding specifies the date, time and place, no further notice is required. When determination for further hearing is made following a hearing on a given matter, all parties of record shall be provided not less than ten days’ notice of the date, time, place and nature of the subsequent hearing. Such notice shall also be published in the official county newspaper.
(4) Content of the Record. The record of a hearing conducted by the hearing examiner shall include, but need not be limited to, the following materials:
(A) The application or petition;
(B) The departmental staff reports;
(C) All evidence received or considered, which shall include all exhibits and other materials filed;
(D) A statement of all matters officially noticed;
(E) A decision or a recommended decision containing the findings and conclusions of the hearing examiner;
(F) Recordings made on electronic equipment; and
(G) An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA). (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.030).
11.30.040 Departmental staff reports.
(a) Distribution of Departmental Staff Reports.
(1) The report shall be transmitted or mailed to the hearing examiner and the applicant/violator not less than ten working days prior to the date of the public hearing.
(2) The report shall also be made available at the department to persons interested in a particular case not less than ten working days prior to the date of the public hearing.
(3) Failure of the department to transmit, mail, or make available the report within the required time period, may, within the discretion of the hearing examiner, constitute grounds for continuing the scheduled public hearing. The hearing examiner shall consider the particular circumstances of the case, the possible prejudice to the person failing to receive a copy of the report, and the justification, if any, for the failure to comply. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.040).
11.30.050 Decisions.
Decisions of the hearing examiner are final, subject only to the provisions of Title 16A.
(1) Distribution of Decision. The hearing examiner shall mail a certified copy of the decision to the applicant and all parties of record within ten working days after the public hearing and shall transmit a copy to all relevant city departments. The decision is final unless appealed to superior court pursuant to Chapter 36.70C RCW.
(2) Content of Decisions. A decision shall include a statement of:
(a) The nature and background of the proceeding.
(b) Findings of Fact. The findings shall include not only the findings of the ultimate facts but also the basic facts leading up to the ultimate question. The findings shall be based exclusively on the evidence presented in the hearing and those matters officially noticed. The findings of fact shall consist of a concise statement of each fact found upon each contested issue of fact.
(c) Conclusions. Whenever practical, the conclusions shall be referenced to specific provisions of the law and regulations or both, together with reasons and precedents relied upon to support the same. The conclusions shall make reference to the effect of the decision with reference to the comprehensive plan and any other applicable city ordinances, as well as the effect of both approval and denial on property in the vicinity, business or commercial aspects, if relevant, and on the general public.
(d) The appropriate rule, order or relief. The decision shall be based upon a consideration of the whole record and supported by reliable, probative and substantial evidence.
(3) Reopening and Disclosure of Decisions.
(a) Reopening of Proceeding by Hearing Examiner and Termination of Jurisdiction.
(i) At any time prior to the filing of the recommendation or decision, the hearing examiner may reopen the proceeding for the reception of further evidence. All parties of record shall be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments.
(ii) Except for the correction of clerical errors, the jurisdiction of the hearing examiner is terminated upon the filing of the decision, unless the matter is remanded to the hearing examiner, or a request for reconsideration is filed in a timely manner.
(b) Disclosure of Decision. The decision of the hearing examiner is a public record and available for public review. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.050).
11.30.060 Hearing examiner qualifications and eligibility.
(a) Qualifications.
(1) The city of Connell hearing examiner shall have the following qualifications to be considered eligible for the position:
(A) A bachelor’s degree in urban and regional planning, land use law, or closely related field; and/or
(B) Five years of experience in one of the above-listed professions; and/or
(C) Five years of experience in conducting and/or participating in public hearings; and/or
(D) A practicing professional planner, land use lawyer, or closely related profession; and/or
(E) Employees of nonconflicting agencies (both public and private), law firms, or other closely related professions are eligible. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.060).
11.30.070 Hearing examiner appointment and term.
(a) Appointment.
(1) Appointment of the city of Connell hearing examiner shall be made by a majority vote of the city council after consideration of experience and qualifications.
(b) Term.
(1) The term of the city of Connell hearing examiner shall be for two years, subject to the city’s right to terminate as set forth in Section 11.30.080.
(2) There is no limit to the number of terms that any one hearing examiner can serve. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.070).
11.30.080 Hearing examiner removal.
(a) Removal.
(1) The hearing examiner may be removed from office by a majority vote of the Connell city council after consideration of a recommendation as to removal or nonremoval from the city administrator or planning and building director. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.080).
11.30.090 Hearing examiner reimbursement.
(a) Reimbursement.
(1) The Connell city hearing examiner will be compensated in a contract approved by the city council. (Ord. 917 § 1 (part), 2012: Ord. 819 § 9 (part), 2007. Formerly 17.85.090).