Chapter 2.40
HEARING EXAMINER

Sections:

2.40.010    Purpose.

2.40.020    Application of hearing examiner code.

2.40.030    Definitions.

2.40.040    Hearing examiner – Creation.

2.40.050    Examiner – Qualifications.

2.40.060    Selection of examiner.

2.40.070    Examiner – Conflict of interest and freedom from improper influence.

2.40.080    Examiner – Powers and duties.

2.40.090    Appeals of administrative decisions to the examiner.

2.40.100    Staff report to the examiner.

2.40.110    Examiner’s decision.

2.40.120    Reconsideration.

2.40.130    Appeal of examiner’s decision.

2.40.140    Multiple applications – Consolidation.

2.40.150    Severability.

2.40.160    Effective date and publication.

2.40.010 Purpose.

The council recognizes the need to provide efficient and effective hearing procedures which integrate land use and non-land-use matters. The purpose of this chapter is:

A. To provide orderly procedures for those matters considered within the city of Edgewood hearing examiner system; and

B. To create a single appeal system for license, land use, and administrative appeals. (Ord. 03-209 § 1).

2.40.020 Application of hearing examiner code.

The provisions of the city of Edgewood hearing examiner code, as set forth in this chapter, shall supersede any conflicting references to hearing examiner procedures in the city of Edgewood Municipal Code. (Ord. 03-209 § 1).

2.40.030 Definitions.

As used in this chapter, the following terms shall have the following meanings:

A. “Administrative official” means mayor or his/her designee.

B. “Aggrieved” means adversely affected by proceedings before or decisions of the examiner, council, or any city of Edgewood department.

C. “Council” means the city of Edgewood city council.

D. “City” means city of Edgewood, together with any of its subdivisions, departments, or agencies.

E. “Examiner” means the office of the city of Edgewood hearing examiner or deputy examiner.

F. “Land use matters” includes the items enumerated in EMC 2.40.080(B)(1).

G. “May” means optional and permissive, and does not impose a requirement.

H. “New evidence” means any and all evidence that is submitted or received after the date the examiner closes the official record. The official record is closed at the end of the public hearing, unless the examiner specifically allows the official record to remain open for a time certain.

I. “Newspaper of general circulation” means a newspaper which is regularly distributed in:

1. One of the four geographic areas identified by the community development department; and

2. The area where the subject of the application has been proposed.

J. “Non-land-use matters” includes those items enumerated in EMC 2.40.080(B)(2).

K. “Official record” means the written and oral information, exhibits, reports, testimony and other evidence submitted in a timely manner and accepted by the examiner.

L. “Parties of record” means those persons or entities who:

1. Testified before the examiner; or

2. Listed their names on a sign-up sheet, which shall be available during the examiner’s hearings; or

3. Specifically advised the community development department or examiner by individual written letter of their desire to become a party of record; or

4. The applicant or appellant and any of the applicant’s or appellant’s agents.

M. “Person” means any individual, partnership, corporation, association, city of Edgewood department, or public or private organization.

N. “Community development department” means the city of Edgewood community development department, the director thereof, or his or her designee.

O. “Shall” means mandatory and imposes a requirement. (Ord. 15-447 § 1 (Exh. A); Ord. 03-209 § 1).

2.40.040 Hearing examiner – Creation.

The office of city of Edgewood hearing examiner is hereby established. (Ord. 03-209 § 1).

2.40.050 Examiner – Qualifications.

The examiner shall have such training or experience as will qualify the examiner to conduct administrative or quasi-judicial hearings utilizing land use and other regulatory codes and must have expertise and experience in planning, and should have knowledge or experience in at least one of the following areas: environmental sciences, law, architecture, economics or engineering. (Ord. 03-209 § 1).

2.40.060 Selection of examiner.

The mayor is hereby authorized to select and contract for hearing examiner services. (Ord. 15-447 § 1 (Exh. A); Ord. 03-209 § 1).

2.40.070 Examiner – Conflict of interest and freedom from improper influence.

A. The appearance of fairness doctrine, as set forth in Chapter 42.36 RCW, shall apply to the examiner and deputy examiners.

B. No person shall interfere or attempt to interfere with the examiner or deputy examiners in the performance of their designated duties. (Ord. 03-209 § 1).

2.40.080 Examiner – Powers and duties.

A. The examiner shall have the power to appoint deputy hearing examiners subject to the approval of the mayor. The deputy hearing examiners shall assist the examiner in the performance of the duties conferred upon the examiner and shall have all the powers and duties of the examiner.

B. The examiner shall receive and examine available relevant information, including environmental documents, conduct public hearings, cause preparation of the official record thereof, prepare and enter findings of fact and conclusions of law, and issue final decisions for:

1. Land Use Matters.

a. Appeals of decisions or orders of an administrative official under the site development regulations.

b. Applications for preliminary and final plats.

c. Appeals from any final administrative order or decision of the community development department in administration, interpretation or enforcement of the city of Edgewood Municipal Code.

d. Appeals contesting the approval or denial of short plats.

e. Applications for, and major amendments to, variances, conditional use permits, public facility permits, permits for the alteration, or expansion or replacement of a nonconforming use.

f. Amendments to plats.

g. Appeals from the following environmental determinations:

i. Final threshold determinations, including revised threshold determinations;

ii. Determinations of adequacy of final environmental impact statements and supplemental environmental impact statements;

iii. The exercise of SEPA substantive authority to condition or deny actions.

h. Petitions for plat vacations, alterations, time extensions, revocations, modifications, reclassifications.

i. Appeals of cease and desist orders.

j. Wetland variances and appeals of any order or decision of the community development department under the city of Edgewood critical areas regulations.

k. Reasonable use exceptions and any order or decision of the community development department under the critical areas and natural resource lands regulations.

l. Any other land use matters assigned by the mayor to the examiner.

2. Non-Land-Use Matters.

a. Appeals of issuance, denials, revocations, or suspensions of business licenses.

b. Appeals of potentially dangerous dog declarations.

c. Appeals of denials of solid waste handling facility designations.

d. Referrals regarding complaints alleging violations of fair housing regulations.

e. Appeals from decisions of the city in the administration or enforcement of the road and storm drainage design and construction standards.

f. Appeals from decisions of the public works director regarding underground utility installations.

g. Sewer assessment protests.

h. Appeals from administrative decisions or orders of the public works director, building official or fire marshal regarding the building construction codes in Chapter 15.05 EMC.

i. Appeals from decisions of the building and fire codes regarding water mains, fire hydrants, and fire flow standards.

j. Appeals from any final administrative order or decision of the community development department in administration, interpretation or enforcement of the city of Edgewood Municipal Code.

k. Reimbursement agreement appeals.

l. Any other non-land-use matter assigned by the council to the examiner by ordinance.

C. Decision of Hearing Examiner. When acting upon any of the above specific applications or appeals, the examiner shall have the power to attach any reasonable conditions found necessary to make the project compatible with its environment and to carry out the goals and policies of the comprehensive plan or other relevant plan, regulations, federal or state law.

D. Examiner Rules. The examiner shall prescribe rules and regulations for the conduct of public hearings before the examiner and shall distribute them to the city. The examiner’s rules may also include, but are not limited to, provisions for the issuance of preliminary decisions in complex cases; authorization for parties to propose draft findings of fact; criteria for determining “expert witnesses”; and establishment of prehearing conference procedures and mediation sessions. (Ord. 15-447 § 1 (Exh. A); Ord. 03-209 § 1).

2.40.090 Appeals of administrative decisions to the examiner.

A. Right to Appeal. Any person aggrieved, or any officer, department, board, agency, district or bureau of the city, county or state affected by any decision of an administrative official, as set forth in EMC 2.40.080(B), may file a notice of appeal.

B. Time Limits.

1. Land Use Matters. Refer to EMC Title 18.

2. Non-Land-Use Matters. Refer to the applicable code.

C. Content of Notice of Appeal. Refer to applicable code.

D. Consolidation.

1. If more than one person files an appeal of an administrative decision on a proposal, the examiner shall consolidate such appeals for review at one public hearing. However, the appeal of a determination of significance, as set forth in EMC Title 20, SEPA, may occur separately and prior to the public hearing on the underlying permit as determined by the hearing examiner.

2. Appeals of the adequacy of an FEIS or SEIS or threshold determination of a DS/DNS/ MDNS, as set forth in EMC Title 20, SEPA, shall be consolidated with the public hearing on the merits of the proposal. If no public hearing process exists for a proposal, review of the FEIS, SEIS, DS, DNS or MDNS shall be heard as determined by the hearing examiner.

E. Notice Provisions. Notice of an appeal of an administrative decision to be reviewed at a public hearing shall be in conformance with the applicable code.

F. Review Procedure.

1. The hearing examiner shall conduct a public hearing to review appeals including:

a. The administrative official’s findings, conclusions, and determination;

b. All evidence admitted into the record; and

c. By taking sworn testimony.

2. The hearing examiner may render a decision on an appeal, in writing, without holding a public hearing when the parties agree that no issues of fact are to be decided. When issues of law are to be determined and opposing parties agree, they may request the hearing examiner to render a decision based upon written briefs. The hearing examiner shall render a written decision within 10 working days of receipt of the briefs.

G. Burden of Proof. A decision of the administrative official shall be entitled to substantial weight. Parties appealing a decision of the administrative official shall have the burden of presenting the evidence necessary to prove to the hearing examiner that the administrative official’s decision was clearly erroneous.

H. Scope of Authority. The examiner may reverse or affirm, wholly or in part, or may modify the administrative official’s order, requirement, decision or determination. If the hearing examiner reverses the administrative official’s decision, the entire action shall be remanded to the administrative official for an action consistent with the hearing examiner’s decision.

I. Dismissal of Appeal. The hearing examiner has the authority to summarily dismiss an appeal of an administrative official’s decision without hearing when such appeal is determined by the examiner to be without merit on its face, frivolous, or brought merely to secure a delay. (Ord. 03-209 § 1).

2.40.100 Staff report to the examiner.

A. Land Use Matters. When a land use matter has been set for public hearing, the community development department shall coordinate and assemble the comments and recommendations of other city departments and governmental agencies having an interest in the subject application and shall prepare a report to include a summary of the facts involved and the community development department’s findings and recommendations. The community development department shall also make a specific recommendation to approve, deny, modify, or conditionally approve the subject application based upon the contents of the application, the community development department’s findings, the comprehensive plan, and all other applicable plans or regulations adopted by the city, county, state or federal government.

B. Non-Land-Use Matters. When a non-land-use matter has been set for public hearing, the applicable department shall coordinate and assemble the comments and recommendations of other city departments and governmental agencies having an interest in the subject application and shall prepare a report to include a summary of the facts involved and the department’s findings and recommendations. The department shall also make a specific recommendation to approve, deny, modify, or conditionally approve the subject application based upon the contents of the application, the department’s findings and all other application plans or regulations adopted by the council.

C. Staff reports shall be filed with the examiner, mailed to the applicant and appellant, and made available to the public at least five working days prior to the scheduled hearing. Copies shall be provided to the public upon request at the cost of reproduction.

D. If any person demonstrates to the examiner that the staff report was not made available or mailed in a timely manner pursuant to subsection (C) of this section, and requests a continuance, the hearing examiner may continue the hearing or leave the official record open to a date certain. If no request is made, the right to raise the issue of untimeliness shall be waived. (Ord. 03-209 § 1).

2.40.110 Examiner’s decision.

A. When the examiner renders a decision he or she shall make and enter findings of fact from the record and conclusions of law thereof which support such decision. The findings of fact shall be supported by substantial evidence in the record and the conclusions of law shall be based upon the policies of the comprehensive plan, subdivision regulations, environmental regulations; the standards set forth in the various land use regulatory codes of the city, county or any other relevant plan, regulation, federal or state law, case law, case specific Growth Management Hearing Board decisions, or any other applicable law.

B. All decisions of the examiner shall be rendered within 10 working days following the conclusion of all testimony and hearings and closing of the record, unless a longer period is mutually agreed to by the applicant or appellant and the examiner. Upon issuance of the examiner’s decision, the examiner shall transmit a copy of the decision by certified mail to the applicant or appellant and by regular mail to other parties of record. (Ord. 03-209 § 1).

2.40.120 Reconsideration.

Any aggrieved party or person affected by the decision of the examiner may, within seven working days of the date of the examiner’s written decision, file with the community development, a written request for reconsideration based on any one of the following grounds materially affecting the substantial rights of said party or person:

A. Errors of procedure or misinterpretation of fact, material to the party seeking the request for reconsideration.

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

C. 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.

Upon receipt of a request for reconsideration, the examiner shall review said request in light of the record and take such further action as is deemed proper; including, but not limited to, denying the request, granting the request, with or without oral argument, and may render a revised decision. The decision of the examiner shall be subject to reconsideration only one time, even if the examiner reverses or modifies the original decision. (Ord. 03-209 § 1).

2.40.130 Appeal of examiner’s decision.

The examiner’s decision on all matters is final and conclusive unless appealed.

A. Environmental. The decision of the examiner on matters under EMC Title 20, SEPA, and EMC 2.40.080(B)(1)(g) shall be appealable only to a court of competent jurisdiction.

B. Land Use. All land use decisions of the examiner issued pursuant to EMC 2.40.080(B)(1), except rezones, shall constitute the final decision of the city and shall be appealable to a court of competent jurisdiction.

C. Non-Land-Use. All non-land-use decisions of the examiner issued pursuant to EMC 2.40.080(B)(2) shall constitute the final decision of the city and shall be appealable to a court of competent jurisdiction. This subsection shall supersede any and all provisions of the city of Edgewood code that contain appeal provisions for non-land-use decisions of the examiner. (Ord. 03-209 § 1).

2.40.140 Multiple applications – Consolidation.

The examiner may consider two or more applications relating to a single project concurrently, and the findings of fact, conclusions and decision on each application may be covered in one written decision. Additionally, the examiner may consolidate appeals of environmental determinations and the underlying land use determinations. (Ord. 03-209 § 1).

2.40.150 Severability.

Should any section, paragraph, sentence, clause or phrase of this chapter, or its application to any person or circumstance be declared unconstitutional or otherwise invalid for any reason, or should any portion of this chapter be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this chapter or its application to other persons or circumstances. (Ord. 03-209 § 1).

2.40.160 Effective date and publication.

A summary of the ordinance codified in this chapter consisting of its title shall be published in the official newspaper of the city. The ordinance codified in this chapter shall take effect and be in full force five days after the date of publication or the date of incorporation as the law may require. (Ord. 03-209 § 1).