Chapter 2.05
HEARING EXAMINER

Sections:

2.05.010    Authority and duties.

2.05.020    Appointment.

2.05.030    Definitions.

2.05.040    Administration.

2.05.050    Hearings.

2.05.060    Reconsideration and appeal.

2.05.010 Authority and duties.

A. The Cowlitz County Hearing Examiner is hereby created under the authority of Chapters 36.70, 36.70B, 36.87, and 36.88 RCW, RCW 46.55.240 and 43.21C.075, Chapter 43.70 RCW, RCW 58.17.330, Chapters 70.05, 70.105, and 70.118 RCW, and Chapters 458-14 and 246-272A WAC, as now or hereafter amended.

B. The Examiner shall conduct public hearings for the following matters referenced in this chapter or in other code chapters and ordinances of the county, referenced below. The provisions of this chapter shall be supplementary to county public hearing processes and procedures established under the following code chapters and ordinances, and under state law and regulation:

1. Matters prescribed by Chapter 3.24 CCC, Board of Equalization.

2. Matters prescribed by Chapter 7.02 CCC, Cowlitz County Health Department.

3. Matters prescribed by Chapter 11.36 CCC, Private Roadways.

4. Matters prescribed by Chapter 15.30 CCC, Solid Waste Management.

5. Matters prescribed by Chapter 15.38 CCC, Hazardous Chemicals.

6. Matters prescribed by Chapter 15.42 CCC, On-Site Sewage System Code.

7. Matters prescribed by Chapter 15.50 CCC, illicit discharge.

8. Matters prescribed by Chapter 16.08 CCC, manufactured home.

9. Matters prescribed by Chapter 16.20 CCC, stormwater management – rural.

10. Matters prescribed by Chapter 16.22 CCC, stormwater management – urbanized.

11. Matters prescribed by Chapter 16.25 CCC, Floodplain Management.

12. Matters prescribed by Chapter 16.35 CCC, Grading.

13. Matters prescribed by Chapter 17.20 CCC, waiver of development moratorium.

14. Matters prescribed by Chapter 18.10 CCC, Land Use Ordinance.

15. Matters prescribed by Chapter 18.34 CCC, Short Subdivision.

16. Matters prescribed by Chapter 18.38 CCC, Large Lot Subdivision.

17. Matters prescribed by Chapter 18.44 CCC, Temporary Dwelling Permit Code.

18. Matters prescribed by Chapter 18.56 CCC, Campground and Recreational Facilities.

19. Matters prescribed by Chapter 18.60 CCC, Adult Entertainment Enterprises.

20. Matters prescribed by Chapter 18.64 CCC, Commercial and Industrial Binding Site Plan Code (BSP).

21. Matters prescribed by Chapter 18.70 CCC, Wireless Communications Facilities.

22. Matters prescribed by Chapter 19.11 CCC, Environmental Policy.

23. Matters prescribed by Chapter 19.15 CCC, Critical Areas.

24. Matters prescribed by Chapter 19.20 CCC, Shoreline Management.

C. The Examiner shall conduct public hearings for the following matters referenced in this chapter or in other code chapters or ordinances or policies of the Board of Health, Health Director and Health Officer, or State Department of Health, referenced below. The provisions of this chapter shall be supplementary to applicable appellate processes and procedures established by Health Board regulations and policies, and State Department of Health laws and regulations:

1. Appeals of violations, final decisions, orders, denials, or suspensions, modifications, or revocation of permits, approvals, registrations, licenses or certifications by the Health Director or Health Officer under Chapter 15.42 CCC, On-Site Sewage System Code, shall be decided by the Examiner; violations, orders, denials, or suspensions, modifications, or revocation of permits, approvals, registrations, licenses or certifications shall be decided by the Health Director or Health Officer under Chapter 15.42 CCC, in accordance with their respective adjudication and hearings policies and procedures.

2. Food service sanitation appeals under Chapter 246-215 WAC, as amended.

3. Adjudicative proceedings and appeals on matters prescribed by solid waste regulations.

4. Any such other quasi-judicial or appellate jurisdiction hereinafter created by adoption, application or amendment of said State Department of Health and County Board of Health regulations. [Ord. 15-040 § 1 (Att. A), 3-24-15.]

2.05.020 Appointment.

The Hearing Examiner shall be appointed and compensated, and the terms of revoking the appointment shall be pursuant to contract between the County and the Examiner. Temporary examiners pro tem may be appointed for such terms and conditions as the Board of County Commissioners deems necessary and appropriate. [Ord. 15-040 § 1 (Att. A), 3-24-15.]

2.05.030 Definitions.

As used in this chapter, unless the context or subject matter clearly requires otherwise, words shall be given the meaning attributed to them by this section. The term “shall” is always mandatory and the word “may” indicates a use of discretion in making a decision. Words not specifically defined herein shall have their ordinary and common dictionary meanings:

“Board” means the Cowlitz County Board of Commissioners.

“Board of Health” means the Cowlitz County Board of Health.

“Closed record appeal” means an administrative appeal on the record, following an open record evidentiary hearing on a matter, with the appeal being on the record with no or limited new evidence or information allowed to be submitted and only appeal argument being allowed.

“County” means Cowlitz County, Washington.

“Department” means the Cowlitz County Departments of Public Works, Building and Planning, Board of Equalization, or Health and Social Services, as applicable.

“Examiner” shall mean the Hearing Examiner for the County of Cowlitz or a deputy thereof.

“Land use decision” shall include matters involving application for a master project permit or other county approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations, excluding ministerial issuance of permits, approvals and exemptions and excluding applications for business licenses; an interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and the enforcement of regarding the application to a specific property of zoning or other code sections, ordinances or rules regulating the code sections and ordinances regulating the improvement, development, modification, maintenance, or use of real property.

“Master project application,” for purposes of this chapter, shall include any land use or environmental permit or license required from the county for a project action, including but not limited to building permits, subdivisions, binding site plans, planned unit developments, conditional uses, shoreline substantial development permits, site plan review, permits or approvals required by critical area code sections, site-specific rezones authorized by a comprehensive plan or subarea plan, but excluding the adoption or amendment of a comprehensive plan, subarea plan, or development regulations, except as specified by statute.

“Open record hearing” means a hearing, conducted by the Examiner, which creates the official administrative record through testimony and submission of evidence and information, under procedures prescribed by the Examiner and this chapter. An open record hearing may be held prior to a decision on a proposal or permit, to be known as an “open record hearing.” An open record hearing may be held on an appeal, to be known as an “open record appeal hearing,” if no open record hearing nor predecision hearing has been held.

“Party of record” shall mean for each application or appeal: (1) the applicant/appellant; (2) all persons who testified at the public hearing; (3) all persons who individually submitted written comments concerning the specific matter to the responsible county department or hearing body prior to the close of the hearing (excluding persons who have only signed petitions and opinion letters, or mechanically produced form letters); and (4) all persons who specifically request notice of a decision by personally entering their name and mailing address on a register provided for such purpose at the public hearing; provided, that a person who becomes a party of record shall remain such through subsequent county proceedings involving the same application or appeal, except that the county may cease mailing notice and other materials to any party of record whose mail is returned by the postal service as undeliverable or no longer subject to automatic forwarding.

“Project permit” or “project permit application” means any land use or environmental permit or license required from the county for a project action, including but not limited to building permits, subdivisions, binding site plans, planned unit developments, conditional uses, shoreline substantial development permits, site plan review, permits or approvals required by critical area and resource lands ordinances, site-specific rezones authorized by a comprehensive plan or subarea plan, but excluding the adoption or amendment of a comprehensive plan, subarea plan, or development regulations, except as otherwise specified within this code. [Ord. 15-040 § 1 (Att. A), 3-24-15.]

2.05.040 Administration.

A. The elected official or the respective departmental director, or his or her representative, shall serve as secretary and custodian of records to the Hearing Examiner, and shall provide staff support to the Hearing Examiner as necessary.

B. The Hearing Examiner shall have the power to adopt rules for the transaction of business, to administer oaths and affirmations, and to preserve order.

C. The Hearing Examiner shall keep with his or her staff written record of its meetings, resolutions, findings, conclusions and determinations, which shall be a matter of public record.

D. In computing any period of time prescribed by this chapter, the day of the act from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a county legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, or a county legal holiday. [Ord. 15-040 § 1 (Att. A), 3-24-15.]

2.05.050 Hearings.

A. Hearings before the Examiner will be informal in nature, but organized so that testimony and evidence can be presented efficiently.

B. All testimony shall be taken under oath or affirmation, given by the Examiner.

C. Hearings shall be electronically recorded and the recordings shall be made a part of the record. Copies of the electronic recordings shall be made available upon request and payment of the costs of reproduction.

D. Whenever the views of any formal or informal organization are to be presented, the organization shall designate a single representative with authority to coordinate the presentation and to speak for the group. Any communications with the organization by the Hearing Examiner or by any party during the course of proceedings shall be through the designated representative.

E. Prior to the conclusion of a matter, including appeals therefrom, no communications with the Hearing Examiner outside of the hearing are allowed on the merits or facts of any matter which has been or will be scheduled to come before the Hearing Examiner. This prohibition includes, but is not limited to, communications with county employees, applicants and their representatives and others participating in the hearing process. No county official or any other person shall attempt to interfere with or improperly influence the Hearing Examiner in the performance of his or her duties.

F. The Hearing Examiner has the option to visit the site before or after a hearing. If the Hearing Examiner conducts a post-hearing visit in response to a request made at the hearing by a party, the hearing record will be held open until the site visit is completed. The Hearing Examiner may continue proceedings or reopen proceedings for good cause any time prior to the issuance of the decision, subject to notice requirements.

G. Except where otherwise stated in this code or by statute, the decision will be contained in a written order with supporting findings and conclusions, and shall be issued no later than 10 working days after the record closes. [Ord. 15-040 § 1 (Att. A), 3-24-15.]

2.05.060 Reconsideration and appeal.

A. Any aggrieved person or agency who disagrees with the decision of the Examiner may make a written request for reconsideration by the Examiner by delivering such request within five working days of the date of the written decision, based upon any one of the following:

1. Errors of procedure or misinterpretations of fact, material to the party seeking the request for reconsideration.

2. Irregularity in the proceedings before the Examiner by which such party was prevented from having a fair hearing.

3. Clerical mistakes in the official file or record transmitted to the Examiner, including errors arising from inadvertence, oversight, or omission, which may have materially affected the Examiner’s decision on the matter.

B. The request for reconsideration shall be filed with the Examiner and the respective department, and upon any forms which have been prescribed by the department, detailing with specificity the errors or misrepresentations, irregularity or clerical mistakes. If the Examiner chooses to reconsider, the Examiner may take such further action as he or she deems proper and may render a revised decision, within five working days after the date of filing. Filing a request for reconsideration is not a prerequisite to filing an appeal and may not toll the deadline for filing further appeal under statute.

C. Except as otherwise provided, an Examiner’s decision shall be final and conclusive, and may be reviewable as specified within this chapter, or within any other county code section, or statute or regulation to such other administrative appellate board or court of competent jurisdiction, as shall thereto be applicable. [Ord. 15-040 § 1 (Att. A), 3-24-15.]