Chapter 18.240 HEARING EXAMINER

The City Council finds that the present statutory provisions for quasi-adjudicatory hearings in the City have developed on a piece-meal basis, assigning different types of quasi-adjudicatory hearings to the City Council. The purpose of this chapter is to substitute a Hearing Examiner system authorized by chapter 35A.63 RCW for the Board of Adjustment, and to grant to the Hearing Examiner final authority in all matters requiring a quasi-adjudicatory hearing heretofore heard by the Board of Adjustment under the ordinances of the City and the laws of the state. [Ord. 1591 § 582, 2014.]

18.240.040 Authority.

This chapter is adopted pursuant to the provisions of RCW 35A.63.170. [Ord. 1591 § 583, 2014.]

18.240.050 Definitions.

For the purposes of this chapter:

“Ex parte communication” means any oral or written communication made by any person, including a City employee or official, pertaining to a matter that is or will be within the jurisdiction of the Hearing Examiner made outside of a public hearing and not included in the public record.

“Party” or “party of record” means any person who has appeared at a hearing of the Hearing Examiner by presenting testimony or making written comment. [Ord. 1591 § 584, 2014.]

18.240.060 Establishment of the office of Hearing Examiner.

Pursuant to chapter 35A.63 RCW, the office of Hearing Examiner for the City is established. The Hearing Examiner shall interpret, analyze, and review administrative decisions and matters concerning land use regulation as provided in this chapter and other ordinances. The term “Hearing Examiner,” as used in this chapter, shall include Deputy Examiners, except that provisions related to appointment of the Hearing Examiner and any Deputy Examiner, as set forth in this chapter, shall apply only to that particular office. [Ord. 1591 § 585, 2014.]

18.240.070 Appointment – Qualifications – Term and compensation.

(1) The Hearing Examiner is nominated by the City Manager or the City Manager’s designee and confirmed by the City Council by majority vote.

(2) The deputy Hearing Examiner is nominated by the City Manager or the City Manager’s designee upon recommendation of the Hearing Examiner and likewise confirmed by the City Council. Such deputy or examiner pro tem shall have the power to perform the duties of the Hearing Examiner whenever the Hearing Examiner is absent, has a conflict of interest, or otherwise so requests.

(3) The qualifications for the office of Hearing Examiner are expertise in land use law and planning and the training and experience necessary to conduct administrative or quasi-judicial hearings and issue decisions on administrative and land use planning and regulatory matters.

(4) The Hearing Examiner and deputy Hearing Examiner shall be appointed to their respective offices for a term which shall initially expire one year following the date of original appointment and thereafter expire four years following the date of each reappointment.

(5) The Hearing Examiner shall receive compensation at the rate set in the annual budget ordinance of the City. Deputy Hearing Examiners shall receive compensation pro rata based on the rate set for the Hearing Examiner.

(6) The City Manager or the City Manager’s designee is authorized to appoint a temporary Hearing Examiner for the City during such time as the regular position of Hearing Examiner is vacant. Such individual shall carry out the functions of the Hearing Examiner as described in this chapter. The temporary appointment authorized in this section shall not be construed as the initial term of appointment of the Hearing Examiner contemplated under this chapter. Such temporary appointment shall be for a period of no longer than six months. [Ord. 1591 § 586, 2014.]

18.240.080 Hearing Examiner and deputy Hearing Examiner – Removal from office.

The Hearing Examiner or deputy Hearing Examiner may be removed from office by majority vote of City Council only upon proof of one of the grounds for termination contained in the City personnel manual. Prior to such removal, the Hearing Examiner, or deputy Hearing Examiner, shall have a right to a pretermination hearing before the City Council in executive session, or, if the individual so requests pursuant to RCW 42.30.110(1)(f), in open council session. At the pretermination hearing, the council shall hear all interested parties, and following such hearing the council shall state its reasons for removal in writing, if that is the case. The provisions of this section shall be inapplicable where the Hearing Examiner serves under the terms of a written contract, in which case the Hearing Examiner may be removed at the expiration of such contract or prior to expiration in accordance with the terms of the contract. [Ord. 1591 § 587, 2014.]

18.240.090 Ex parte communications.

(1) No person may communicate ex parte, directly or indirectly, with the hearing examiner. The Hearing Examiner may not communicate ex parte, directly or indirectly, with any person, unless the Hearing Examiner makes such communication part of the public record and provides the opportunity to review and comment upon the communicated matter at a public hearing.

(2) This section does not prohibit ex parte communication regarding procedural matters, or preclude communication by the Hearing Examiner made solely for the purpose of conveying information regarding the specifics of an application or communication with City employees requesting additional information or clarification, so long as such communication and any information and clarification received is made part of the record.

(3) The Hearing Examiner is required to disclose all ex parte communications and the circumstances under which they are made and, in the Hearing Examiner’s discretion, may abstain from considering the application that is the subject of such communication. [Ord. 1591 § 588, 2014.]

18.240.100 Conflict of interest.

(1) The Hearing Examiner may not participate in a hearing or decision with respect to which:

(a) The Hearing Examiner; or

(b) A Hearing Examiner’s relative, which term includes any spouse, parent, child, sibling, and in-law; or

(d) A business as to which the Hearing Examiner:

(i) Is an employee;

(ii) Was an employee within the previous two years;

(iii) Is negotiating or has an arrangement, or understanding with concerning future employment; or

(iv) Has a direct or substantial financial interest, except as provided in this section. “Direct or substantial financial interest” includes a substantial interest in property in proximity to property that is the subject of an application.

(2) Prior to a hearing the Hearing Examiner shall disclose publicly and on the record any actual or potential interest the Hearing Examiner or any of the persons described in this section has in the outcome of the hearing.

(3) The Hearing Examiner may participate in a hearing and decision in which an interest described in this section exists if, and only if, the Hearing Examiner fully discloses such interest and affirms that such interest will not affect the outcome of the hearing or decision and either:

(a) All persons present or who have submitted written comments to the record prior to the hearing agree in writing, on a form provided by the Hearing Examiner setting forth the interest, to allow the Hearing Examiner to participate; or

(b) A deputy Hearing Examiner is not available to hear and decide the matter.

(4) The exception in subsection (3) of this section is to be used only when reasonably necessary to avoid undue delay or prejudice to a party. There is no exception to the duty to disclose under subsection (2) of this section. [Ord. 1591 § 589, 2014.]

18.240.110 Freedom from improper influence.

No person, including City officials, elected or appointed, shall attempt to influence an Examiner in any matter pending before him, except at a public hearing duly called for such purpose, or to interfere with an Examiner in the performance of his duties in any other way. [Ord. 1591 § 590, 2014.]

18.240.120 Budget – Administrative support.

The Hearing Examiner will be provided with such funds and administrative support as are adopted annually by the City Council upon recommendation of the City Manager or the City Manager’s designee. The Hearing Examiner will meet annually with the City Manager or the City Manager’s designee for this purpose. [Ord. 1591 § 591, 2014.]

18.240.130 Rules.

The Examiner shall have the power to prescribe rules and regulations concerning procedures for hearings authorized in this chapter, to issue summons for and compel the appearance of witnesses, to administer oaths, and to preserve order. The privilege of cross-examination of witnesses shall be accorded all interested parties or their counsel in accordance with rules of the Examiner. [Ord. 1591 § 592, 2014.]

18.240.140 Jurisdiction and powers.

The Hearing Examiner exercises all powers and authority, as a first level forum in quasi-adjudicatory matters, formerly exercised by the City Council and Board of Adjustment subject to the provisions of chapter 35.14 RCW. [Ord. 1591 § 593, 2014.]

18.240.150 Duty to conduct hearings – Decisions to be in writing – Time period.

The Examiner shall receive and examine available information, conduct public hearings and prepare a record thereof, and enter final decisions, which have the effect of an administrative decision appealable to the City Council. Each decision of a Hearing Examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision. In land use matters, such findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the City’s Comprehensive Plan and the City’s development regulations. Each final decision of a Hearing Examiner shall be rendered within 14 working days following conclusion of all testimony and hearings, unless a longer period is mutually agreed to in writing by the applicant and Hearing Examiner. [Ord. 1591 § 594, 2014.]

18.240.160 Matters to be heard by Examiner.

Specifically, the Hearing Examiner conducts public hearings (where applicable) and renders final decisions on the following:

(1) Type III land use actions as specified by chapter 18.20 DMMC, Land Use Review Procedures;

(2) Appeals of administrative decisions as further provided in this code; and

(3) Such other matters as the City Council may from time to time refer. [Ord. 1591 § 595, 2014.]

18.240.170 Appeal from administrative decisions – Time for filing – Substantial weight requirement – Standard of review – Failure to exhaust administrative remedies.

Any person or persons aggrieved by any administrative decision, made under a provision of this code which expressly provides that such administrative decision is subject to review by the Hearing Examiner, may seek review of such decision by the Hearing Examiner by filing with the City Clerk a written notice of appeal of an administrative decision within 10 days of the decision that is being challenged. The City Clerk may reject or dismiss any appeal sought to be filed by a person not given the right to appeal under this code, or any incomplete appeal. An appeal will be considered incomplete if it fails to satisfy the requirements set forth above or if it does not provide at least the following:

(1) Applicable filing fee, a schedule of which is available by contacting the City Clerk;

(2) The appellant’s name, address, telephone number and fax line, and other information which would facilitate prompt communications with the appellant;

(3) A copy of the administrative decision that is the subject of the appeal;

(4) A detailed statement identifying specifically the error of fact, law or procedure made by the administrative decision maker, and the effect(s) of the alleged error(s) on the decision that is the subject of the appeal; and

(5) A statement of the redress sought by the appellant.

The administrative decision appealed shall be given substantial weight by the Hearing Examiner. On any such appeal, the standard of review shall be whether the administrative decision was clearly erroneous based on a review of all evidence, or the administrative decision was arbitrary or capricious. Failure of a party to request review by the Hearing Examiner of an administrative decision shall be a bar to any further judicial review. [Ord. 1591 § 596, 2014.]

18.240.180 Decisions – Basis – Conditional.

In land use matters, the Examiner’s decision shall be based on the policies of the Comprehensive Plan, Shoreline Master Program, Shoreline Management Act, State Environmental Policy Act, the standards set forth in the various land use regulatory codes of the City, or other applicable programs adopted by the City Council. If the Hearing Examiner finds, in reaching his decision based on the above policies and standards, that the land use regulatory code conflicts with any of the local policies or standards, then the Hearing Examiner will base his decision on the code provision in effect at the time and notify the City Council by memorandum directed through the Planning, Building and Public Works Department setting forth the nature of the conflict between policies and regulatory code. The Hearing Examiner may include in a decision any conditions of approval that are necessary to ensure that the proposal (a) complies with all applicable zoning code criteria and Comprehensive Plan policies, including the Shoreline Management Act and State Environmental Policy Act, and (b) does not present probable significant adverse environmental impacts to surrounding properties or any other affected area. The Hearing Examiner may revoke an approved permit for failure to comply with any such conditions. Such conditions may include, but are not limited to, the following:

(1) Exact location and nature of development, including additional building and parking area setbacks, screenings in the form of landscaped berms, landscaping, or fencing;

(2) Impact of the development upon other lands;

(3) Hours of use of operation or type and intensity of activities;

(4) Sequence and scheduling of development;

(5) Maintenance of the development;

(6) Duration of use and subsequent removal of structures;

(7) Granting of easements for utilities or other purposes and dedication of land or other provisions for public facilities, the need for which the Examiner finds would be generated in whole or in significant part by the proposed development;

(8) Mitigation of any significant adverse environmental impacts including off-site improvements reasonably related to the project;

(9) Provisions which would bring the proposal into compliance with the Comprehensive Plan policy; and

(10) Posting of performance bonds as required to ensure compliance with any conditions, modifications, and/or restrictions imposed on the proposal. [Ord. 1591 § 597, 2014.]

18.240.190 Dismissal of pending matters.

The Hearing Examiner may dismiss a pending matter, with or without prejudice, pursuant to a request by the applicant to withdraw the application, or for failure of the applicant to attend all required hearings or provide all requested information. [Ord. 1591 § 598, 2014.]

18.240.200 Presentation of evidence.

(1) Except for hearings on appeals of administrative decisions, any person may testify. In hearings on appeals from administrative decisions, testimony shall be limited to witnesses designated by the administrator whose decision is being appealed, witnesses designated by the appellant, and witnesses designated by any person granted the right of intervention by the Hearing Examiner.

(2) All reasonably probative (material and relevant) evidence will be permitted. The judicial rules of evidence shall not be strictly applied. The Hearing Examiner may accord such weight to the evidence as is deemed appropriate.

(3) The Hearing Examiner may take official notice of judicially cognizable facts and of general, technical, and scientific facts within the Hearing Examiner’s specialized knowledge, in accordance with the rules of procedure and so long as any such noticed facts are included in the record and findings.

(4) The Hearing Examiner has the authority to call witnesses and request written evidence in order to obtain the information necessary to make a decision. The Hearing Examiner may request written comment from and the appearance of the designated representative of any City department that has an interest in or may affect an application for a proposed use.

(5) The Hearing Examiner may require that testimony be given under oath or affirmation.

(6) The Hearing Examiner may allow the cross-examination of witnesses.

(7) The Hearing Examiner may impose reasonable limitations on the number of witnesses to be heard and the nature and length of their testimony to avoid repetitious testimony, expedite the hearing, or avoid continuation of the hearing. This subsection is not intended to preclude or exclude from the record any relevant testimony or evidence.

(8) No testimony or oral statement regarding the substance or merits of an application is allowable after the close of the public hearing. No documentary material submitted after the close of the hearing will be considered by the Hearing Examiner unless additional time to submit such material has been granted and all parties are given an opportunity to review the material and file rebuttal material or argument. [Ord. 1591 § 599, 2014.]

18.240.210 Rehearing.

(1) The Hearing Examiner may continue or reopen a hearing to take additional testimony, to receive additional evidence, or for any other cause that is reasonable or appropriate; provided, the order continuing or reopening the hearing is entered prior to the issuance of the decision in the case.

(2) If the Hearing Examiner decides, prior to the close of the hearing, to continue the hearing and then and there specifies the date, time, and place of the subsequent hearing, no further notice is required. If a decision is made to reopen a hearing after the conclusion of the hearing, all parties who originally had notice must be given at least 15 days’ notice of the date, time, place, and nature of the subsequent hearing, and the notice shall be published as provided in this chapter.

(3) A hearing before the Hearing Examiner shall constitute the hearing of the City Council. No new testimony shall be taken or new evidence accepted by the City Council; provided, however, the City Council may remand a matter to the Hearing Examiner, pursuant to the Hearing Examiner code. [Ord. 1591 § 600, 2014.]

18.240.220 Record of hearing – Content.

(1) The Hearing Examiner shall establish and maintain a record of all proceedings and hearings conducted including a sound recording which shall be accurately transcribed as necessary.

(2) The record of a hearing conducted by the Hearing Examiner shall include, but is not limited to, the following contents:

(a) The written application or appeal;

(b) The names and addresses of all participants;

(d) All evidence received or considered by the Hearing Examiner;

(e) The decision or recommendation of the Hearing Examiner;

(f) Tape recordings of all proceedings; and

(g) Records of notice given of the hearing. [Ord. 1591 § 601, 2014.]

18.240.230 Decision – Content and distribution.

(1) The decision of the Hearing Examiner shall include at least the following content:

(a) A description of the proposed use or action;

(b) The location of the property;

(d) The date, time, and place of the hearing(s);

(e) A list of persons who testified or a summary of such list;

(f) A list of exhibits, or a summary of such list;

(g) A statement identifying the ordinance or criteria governing the application;

(h) Findings of fact and conclusions relating the proposed use to the ordinance and other criteria governing the application; and

(i) The decision denying or approving the application and any conditions, if applicable.

(2) The Hearing Examiner shall issue a written decision within 14 days of the date of closing of the hearing, unless the applicant agrees in writing to a longer time.

(3) A copy of the decision shall be mailed or otherwise made available to:

(a) The applicant;

(b) The Planning, Building and Public Works Department and all other City departments affected by or interested in the decision;

(d) Except in cases of appeal of an administrative decision, all other persons who request that they receive a notice of the decision. [Ord. 1591 § 602, 2014.]

18.240.240 Decision – Reconsideration.

(1) The applicant, an opponent of record, or a City department may petition the Hearing Examiner in writing to reconsider a decision. Such petition must be filed within 10 days of the date of the written decision.

(2) The Hearing Examiner, within seven days of the date the petition is filed, shall determine whether to deny the petition, issue a new decision, or reopen the hearing as provided in this chapter. The Hearing Examiner may summarily dismiss a petition for reconsideration that is without merit or brought primarily to secure a delay.

(3) The Hearing Examiner may reconsider a decision if it is found that:

(a) An error of fact, law, or procedure that is more likely than not to affect the outcome of the decision has been made; or

(b) The petitioner is seeking to enter previously unavailable information that is more likely than not to affect the outcome of the decision.

(4) The filing of a petition for reconsideration shall modify the time for filing an appeal of a decision of the Hearing Examiner as follows:

(a) If the petition for reconsideration is denied, the time from the date the petition is filed to the date the written denial is issued shall not be counted in the 10 days given to file an appeal by DMMC 18.240.250, Appeals from decision of Hearing Examiner.

(b) If the petition is approved, and upon reconsideration the original decision is unchanged, the time from the date the petition is filed to the date the written decision following the reconsideration is issued shall not be counted in the 10 days given to file an appeal by the Hearing Examiner code.

(c) If the petition for reconsideration is approved and upon reconsideration the original decision is changed, the appeal period provided in DMMC 18.240.250, Appeals from decision of Hearing Examiner, starts from the date of the written decision of the reconsideration. [Ord. 1591 § 603, 2014.]

18.240.250 Appeals from decision of Hearing Examiner.

(1) The applicant, a party of record, or a City department may appeal to the City Council any decision of the Hearing Examiner that does not involve a proposed land use action by filing with the City Clerk a written notice of appeal within 10 calendar days of the date of the written decision of the Hearing Examiner.

(2) The City Clerk may reject or dismiss any appeal sought to be filed by a person not given the right of appeal by this section, or any incomplete appeal. An appeal will be considered incomplete if it fails to follow the criteria set forth in this chapter regarding content or timing of appeal.

(3) A party of record may appeal to the Superior Court of Washington for King County any Hearing Examiner decision in response to a proposed Type I, II, or III land use action by filing a land use petition as specified by chapter 36.70C RCW. [Ord. 1591 § 604, 2014.]

18.240.260 Content of appeal.

An appeal shall not contain any new facts or evidence. An appeal shall contain all of the following:

(1) The file number of the decision being appealed;

(2) The name and address of the appellant;

(3) A detailed statement identifying specifically the error of fact, law, or procedure, and the effect of the alleged error on the decision;

(4) A statement of the redress sought by the appellant;

(5) Filing fee as established by the City Manager or the City Manager’s designee. A schedule of applicable fees is available by contacting the City Clerk. [Ord. 1591 § 605, 2014.]

18.240.270 Timing of appeal.

(1) Within two days of receiving a timely and complete request for appeal, the City Clerk shall forward the appeal to the Hearing Examiner. Within 28 days of receiving the appeal, the Hearing Examiner shall cause a verbatim transcription of the hearing to be prepared and forward a copy of the appeal with the remaining record of the hearing to the City Council with a request that a date for consideration be set. Copies of the record, to the extent practicable, are sent to the appellant and the applicant if different than the appellant.

(2) At the next regular meeting of the City Council following receipt of the record from the Hearing Examiner, the Council will schedule the appeal for consideration so that the appeal will be considered within 60 days from the filing of the record with the Council. The City Clerk shall give notice of the date, time, and place of the Council’s consideration of the appeal to all parties of record. [Ord. 1591 § 606, 2014.]

18.240.280 Reference to Board of Adjustment.

All references to the Board of Adjustment in previously enacted ordinances and resolutions of the City shall hereafter mean the Hearing Examiner. [Ord. 1591 § 607, 2014.]