Chapter 20.06
PUBLIC HEARINGS AND APPEALS

Sections:

20.06.000    General.

20.06.010    Joint public hearings.

20.06.020    Standing to initiate an administrative appeal.

20.06.030    Appeals of project permit decisions.

20.06.040    Prehearing conference.

20.06.050    Responsibility of director for hearing – Open record public hearing.

20.06.060    Conflict of interest.

20.06.070    Ex parte communications.

20.06.080    Disqualification.

20.06.090    Burden and nature of proof.

20.06.100    Order of proceedings – Predecision open record public hearing.

20.06.110    Procedure for open record appeal hearing.

20.06.120    Procedure for closed record hearings.

20.06.130    Decision.

20.06.140    Reconsideration of decision.

20.06.150    Judicial appeals.

20.06.000 General.

A. An open record public hearing is a hearing conducted by an authorized body or officer that creates the record upon which the outcome of a decision or appeal is based through testimony and the submission of documents and other evidence. A public hearing may be held prior to the city’s decision on a project permit application; this is an “open record predecision hearing.” A public hearing may be held on an appeal if no open record predecision hearing was held for a decision on a project permit application; this is an “open record appeal hearing.”

B. Open record predecision hearings on all Type III and IV permit applications and open record appeal hearings on all appeals of Type II decisions shall be conducted in accordance with this chapter. Public hearings conducted by the city hearing examiner shall also be subject to the hearing examiner’s rules.

C. “Closed record appeal” means an administrative appeal to the city council. Such appeals are decided based on the previously created record. While such appeal proceedings do not allow new testimony, documents or other evidence to be submitted, except as provided in ECDC 20.06.120(B), arguments are allowed based upon the record.

D. Any appeal of a project permit application shall be allowed and described in the matrix set forth in ECDC 20.01.003.

E. In this chapter, unless the context clearly indicates otherwise, the words “writing” and “written” shall include electronic writings and things written electronically. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.001].

20.06.010 Joint public hearings.

A. Decision to Hold Joint Hearing. The city may jointly conduct any public hearing on a project permit application with any hearing that may be conducted by another local, state, regional, federal, or other agency, on the proposed action, as long as the requirements of subsection (C) of this section are met.

B. Applicant’s Request for a Joint Hearing. The applicant may request that the city conduct a joint public hearing with another agency, as described in subsection (A) of this section, as long as the joint hearing schedule would allow a decision to be issued within the applicable time periods set forth in this title. If the joint hearing schedule would not allow a decision to be issued within the applicable time periods, the applicant may agree in writing to an extension of the applicable time periods in order to allow a joint public hearing to be conducted.

C. Prerequisites to Joint Public Hearing. A joint public hearing may be held with another local, state, regional, federal or other agency and the city, when:

1. Doing so is not expressly prohibited by statute;

2. Sufficient notice of the hearing is given to meet each agency’s applicable notice requirements;

3. The agency has received the necessary information about the proposed project from the applicant in enough time to hold its hearing at the same time as the city hearing; and

4. The hearing is held within the geographic boundary of the city. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010. Formerly 20.06.001].

20.06.020 Standing to initiate an administrative appeal.

A. Standing Limited to Parties of Record. Only parties of record may file an administrative appeal.

B. Definition. The term “parties of record,” for the purposes of this chapter, shall mean:

1. The applicant;

2. Any person who testified at an open record public hearing on the subject application;

3. Any person who submitted written comments concerning the subject application; provided, that persons who have only signed a petition are not “parties of record”; and/or

4. The city of Edmonds. [Ord. 4154 § 2 (Att. B), 2019].

20.06.030 Appeals of project permit decisions.

Any administrative appeal of a decision on a project permit application shall be governed by the following:

A. Reserved.

B. Time to File. An appeal must be filed within 14 days after the issuance of the written decision on a project permit application. The appeal period for determinations of nonsignificance shall be extended for an additional seven days, if state or local rules adopted pursuant to Chapter 43.21C RCW allow public comment on a determination of nonsignificance issued in relation to the applicable project permit application. Appeals, including fees, must be received by the city’s development services department by mail or by personal delivery at or before 4:00 p.m. on the last business day of the appeal period. Appeals received by mail after 4:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.

C. Computation of Time. For the purposes of computing the time for filing an appeal, the day the hearing body’s decision is issued shall not be counted. If the last day of the appeal is a Saturday, Sunday, legal holiday designated by RCW 1.16.050 or by a city ordinance, or any day when City Hall or the city’s development services department is closed to the public by formal executive or legislative action, then the appeal may be filed on the next day that is not a Saturday, Sunday, holiday or closed day.

D. Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee as set forth in the city’s adopted fee resolution, and contain the following information:

1. Appellant’s name, address, email address, and phone number;

2. A statement describing appellant’s standing to appeal;

3. Identification of the application which is the subject of the appeal;

4. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based;

5. The specific relief sought;

6. A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.

7. All written submittals should be typed or electronically formatted on letter size paper (eight and one-half by 11 inches), with one-inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12-point), single sided.

E. Effect. The timely filing of an appeal shall stay the decision on the applicable project permit application, or portion thereof, until such time as the appeal is resolved or withdrawn.

F. Notice of Appeal. The director shall provide written notice of the appeal to all parties of record as defined in ECDC 20.06.020.

G. Multiple Appeals. More than one appeal may be filed concerning the same decision on a project permit application. [Ord. 4154 § 2 (Att. B), 2019].

20.06.040 Prehearing conference.

A. The hearing examiner may on his or her own order, or at the request of the city, applicant or appellant, hold one or more conferences prior to the hearing to consider:

1. Identification, clarification, and simplification of the issues;

2. Disclosure of witnesses to be called and exhibits to be presented;

3. The scheduling or hearing of motions that any party would like to have considered;

4. Other matters deemed by the hearing examiner appropriate for orderly and expeditious disposition of the proceedings.

B. Prehearing conferences may be held by telephone conference.

C. The hearing examiner shall give notice to all parties of record of any prehearing conference to be held. Notice shall be in any written form.

D. All parties of record shall participate in any prehearing conference unless they are granted permission by the hearing examiner not to participate. Failure to participate without such permission may result in that party’s waiver of issues adjudicated during the prehearing conference and/or dismissal of the appeal.

E. Following the prehearing conference, the hearing examiner shall issue an order reciting the actions taken or ruling on motions made at the conference. [Ord. 4154 § 2 (Att. B), 2019].

20.06.050 Responsibility of director for hearing – Open record public hearing.

The director shall:

A. Schedule project permit applications for review and public hearing;

B. Verify compliance with notice requirements;

C. Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal as of the date of the report, including recommendations on project permit applications in the consolidated permit process that do not by themselves require an open record predecision hearing. The report shall also describe any mitigation required or proposed under the city’s development regulations or SEPA authority. 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;

D. Prepare the notice of decision, if required by the hearing body, and mail a copy of the notice of decision to those entitled by this chapter to receive the decision. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.002].

20.06.060 Conflict of interest.

The hearing body shall be subject to the code of ethics, prohibitions on conflict of interest and appearance of fairness doctrine as set forth in Chapter 42.23 RCW, and Chapter 42.36 RCW as the same now exists or may hereafter be amended. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.003].

20.06.070 Ex parte communications.

A. No member of the hearing body may communicate, directly or indirectly, regarding any issue in a proceeding before him or her, other than to participate in communications regarding procedural aspects necessary for maintaining an orderly process, unless he or she provides notice and opportunity for all parties to participate. Nothing herein shall prevent the hearing body from seeking legal advice from its legal counsel on any issue.

B. If, before serving on the hearing body in a quasi-judicial proceeding, any member of the hearing body receives an ex parte communication of a type that could not properly be received while serving, the member of the hearing body, promptly after starting to serve, shall disclose the communication as described in subsection (C) of this section.

C. If a member of the hearing body receives an ex parte communication in violation of this section, he or she shall place in 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 hearing body shall advise all parties 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. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.004].

20.06.080 Disqualification.

A. Any member who is disqualified shall make full disclosure to the audience of the reason(s) for the disqualification, abstain from voting on the proposal, and physically leave the hearing room.

B. If enough members of the hearing body are disqualified so that a quorum cannot be achieved, then all members present, after stating their reasons for disqualification, shall be prequalified and deliberations shall proceed. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.005].

20.06.090 Burden and nature of proof.

A. Except for Type V actions and appeals, the burden of proof is on the proponent. The project permit application must be supported by convincing evidence in the record that it conforms to the applicable elements of the city’s development regulations (review criteria). The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated.

B. In an appeal, the appellant has the burden of proof with respect to points raised on appeal. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.006].

20.06.100 Order of proceedings – Predecision open record public hearing.

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 and/or hearing examiner rules as appropriate.

A. Before receiving testimony and other evidence 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 may proceed or terminate the proceeding;

2. Any member disqualifications shall be determined.

B. The presiding officer may take official notice of commonly known and accepted information, such as:

1. Ordinances, resolutions, rules, officially adopted development standards, and state and federal law;

2. Public records and facts judicially noticeable by law.

C. Order of Presentation. The order of presentation for predecision open record public hearings shall generally proceed as follows:

1. Hearing examiner’s or hearing body’s introductory statement;

2. Staff presentation;

3. Applicant’s presentation;

4. Public testimony on proposal;

5. Response from staff (if any);

6. Rebuttal from applicant (if any);

7. Questions of staff, applicant, or other persons submitting testimony;

8. Deliberation by hearing body if applicable;

D. Notwithstanding the provisions of subsection (C) of this section, the order of hearing may be modified or a different order established if the hearing body deems necessary for the clear and fair presentation of evidence. The order of the hearing may also be modified as agreed upon by the parties with the hearing body’s approval.

E. The order of presentation at hearing shall not alter or shift any burden(s) or presumptions(s) established by applicable law(s).

F. Information officially noticed need not be proved by submission of formal evidence to be considered by the hearing body. Parties requesting official notice of any information shall do so on the record. The hearing body, however, may take notice of matters listed in subsection (B) of this section at any time. Any information given official notice may be rebutted.

G. The hearing body may view the proposed project site or planning area with or without notification to the parties, but shall put into the record a statement setting forth the time, manner and circumstances of the site visit and any relevant observations made during the visit.

H. Information shall be received from the staff and from proponents and opponents. The presiding officer may, in his or her discretion, permit persons participating in the hearing to ask questions of other participants. Unless the presiding officer specifies otherwise, any such questions will be asked through the presiding officer.

I. When the presiding officer has closed the public testimony portion of the hearing, the hearing body may openly discuss the issue and may further question the staff or any person submitting testimony. An opportunity to present rebuttal testimony shall be provided if new information is presented through the questioning. When all evidence has been presented and all questioning and rebuttal completed, the presiding officer shall officially close the record and end the hearing. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.007].

20.06.110 Procedure for open record appeal hearing.

A. Appeal hearings shall have a structured format and shall be conducted in a manner deemed by the hearing examiner to make the relevant evidence most readily and efficiently available to the hearing examiner and to provide the parties a fair opportunity for hearing.

B. Where the code provides that the appellant has the burden of proof to overcome the city decision being appealed, the order of hearing is generally as follows:

1. Hearing examiner’s introductory statement;

2. Parties’ opening statements (if allowed by hearing examiner);

3. Appellant’s presentation of evidence and argument;

4. Department’s presentation of evidence and argument;

5. Applicant’s presentation of evidence and argument (if applicant is not the appellant);

6. Appellant’s presentation of rebuttal evidence and argument;

7. Closing argument of parties (if allowed by hearing examiner);

C. Notwithstanding the provisions of subsection (B) of this section, the order of hearing may be modified or a different order established if the hearing examiner deems necessary for the clear and fair presentation of evidence. The order of the hearing may also be modified as agreed upon by the parties with the hearing examiner’s approval.

D. The order of presentation at hearing shall not alter or shift any burden(s) or presumptions(s) established by applicable law(s).

E. Information shall be received from the staff and from proponents and opponents. The presiding officer may, in his or her discretion, permit persons participating in the hearing to ask questions of other participants. Unless the presiding officer specifies otherwise, questions will be asked through the presiding officer. [Ord. 4154 § 2 (Att. B), 2019].

20.06.120 Procedure for closed record hearings.

A. Close record hearings shall be argued and decided based on the record established at the open record hearing, which shall include the written recommendation of the hearing body/officer, copies of any exhibits admitted into the record, and official transcript, minutes or tape recording of the proceedings.

1. At his/her own expense, a party of record may have the official tape recording of the open record hearing transcribed; however, to be considered during the closed record hearing, the transcript must be prepared and certified by a court reporter or a transcriber that is pre-approved by the city. In addition, the transcript must be received by the city directly from the transcriber at least 16 working days before the date scheduled for the closed record hearing. It shall be each party of record’s responsibility to obtain a copy of the transcription from the city.

2. The director shall maintain a list of pre-approved transcribers; and, if needed, shall coordinate with parties of record so that no more than one official transcript is placed before the city council.

B. No new testimony or other evidence will be accepted by the city council except: (1) new information required to rebut the substance of any written or oral ex parte communication that is placed on the record during an appearance of fairness disclosure.

C. Parties of record may present written arguments to the city council. Arguments shall address the applicable decision criteria, with specific references to the administrative record.

D. While written arguments are not required, parties of record may submit written arguments no later than 12 working days before the date scheduled for the closed record hearing. Parties of record may submit written arguments or respond in writing to opening arguments no later than seven working days before the closed record hearing. Parties may rebut in writing to responses submitted by parties of record no later than four working days before the closed record hearing.

E. Written arguments, responses, and rebuttals must be received by the city’s development services department by mail or personal delivery at or before 4:30 p.m. of the date due. Late submittals shall not be accepted. Submittals received by mail after 4:30 p.m. on the last day of the appeal period will not be accepted, no matter when such submittals were mailed or postmarked.

F. All written submittals should be typed or electronically formatted on letter size paper (eight and one-half by 11), with one-inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12), single sided, double spaced and without exceeding 12 pages in length, including exhibits, if any. Exhibits that are not already in the record shall not be allowed.

G. The review shall commence with the resolution of appearance of fairness issues, if any, followed by the opportunity for oral presentations by the director and other parties of record. After the presentations, the city council may ask clarifying questions on disputed issues to parties of record, with an opportunity for the director, appellant and/or applicant, respectively, to rebut to the response. The city council shall not request information outside the administrative record. If the city council believes that it needs information not contained in the record to make a proper decision on the application, it may remand the application to have the record reopened for that limited purpose.

If information outside the administrative record is offered (in written submittals or oral presentation) by a party of record, it shall be the responsibility of other parties of record opposing the same to timely object and provide justification in support of the objection. Objections to information outside the administrative record shall be brought before the city council begins deliberations. The party offering the information shall have the opportunity to show where in the record said information is contained.

H. The city council shall review the recommendation by the hearing body/officer de novo based on the evidence in the record. As it deems necessary, the city council may remand the application with instructions to the hearing body to reopen the hearing to obtain additional information on a subject that is relevant to the decision criteria. [Ord. 4154 § 2 (Att. B), 2019].

20.06.130 Decision.

A. Following the hearing procedure described in ECDC 20.06.100, 20.06.110, or 20.06.120, 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 for additional information.

B. The hearing body’s written decision shall be issued within 10 working days after the close of record of the hearing and within 90 days of the opening of the hearing, unless a longer period is agreed to by the parties. Where the record is voluminous, the hearing body may inform the parties during the hearing that more than 10 working days will be necessary to render a decision.

C. The city shall provide a notice of decision as provided in ECDC 20.02.007.

D. If the city is unable to issue its final decision on an 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. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.008].

20.06.140 Reconsideration of decision.

A. General. Any person identified in ECDC 20.06.020 as having standing to file an administrative appeal may request reconsideration of a decision of the hearing examiner which issues immediately after the open record public hearing on a permit application described in this chapter. (There shall be no reconsideration of a decision of the director (staff), ADB or city council.) Reconsideration is not a condition precedent to any appeal. Reconsideration shall be limited to:

1. Error(s) of procedure;

2. Error(s) of law or fact;

3. Error(s) of judgment; and/or

4. The discovery of new evidence that was not known and could not, in the exercise of reasonable diligence, have been discovered.

B. Time to File. A request for reconsideration, including reconsideration fee, must be filed with the director within 10 calendar days of the issuance of the hearing examiner’s written decision. Such requests shall be delivered to the director before 4:00 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 4:00 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were sent, mailed or postmarked.

C. Computation of Time. For the purposes of computing the time for filing a request for reconsideration, the day the hearing examiner’s decision is issued shall not be counted. If the last day of the reconsideration is a Saturday, Sunday, or holiday designated by RCW 1.16.050, or by a city ordinance, then the reconsideration may be filed on the next business day.

D. Content of Request for Reconsideration. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee, and contain the following information:

1. The name, address, email address, and phone number of the requestor;

2. Identification of the application and final decision which is the subject of the request for reconsideration;

3. Requestor’s statement of grounds for reconsideration and the facts upon which the request is based;

4. The specific relief requested;

5. A statement that the requestor believes the contents of the request to be true, followed by his/her signature.

6. All written submittals should be typed or electronically formatted on letter size paper (eight and one-half by 11), with one-inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12), single sided.

E. Effect. The timely filing of a request for reconsideration shall stay the hearing examiner’s decision on the applicable project permit application, or portion thereof, until such time as the hearing examiner issues a decision on reconsideration.

F. Notice of Request for Reconsideration. The director shall provide written notice that a request for reconsideration has been filed to all parties of record as defined in ECDC 20.06.020.

G. Hearing Examiner’s Action on Request. The hearing examiner shall consider the request for reconsideration without a hearing, but may solicit written arguments from parties of record. A decision on the request for reconsideration shall be issued within 10 business days after receipt of the request for reconsideration by the city.

1. The time period for appeal shall recommence and be the same for all parties of record, regardless of whether a party filed a motion for reconsideration.

2. Only one request for reconsideration may be made by a party of record. Any ground not stated in the initial motion is waived.

3. A decision on reconsideration or a matter that is remanded to the hearing examiner by the city council is not subject to a motion for reconsideration.

H. Limitations on Hearing Examiner’s Reconsideration. The hearing examiner shall consider the request for reconsideration based on the administrative record compiled on the application up to and including the date of the hearing examiner’s decision. The hearing examiner may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record and the hearing examiner’s decision. The reconsideration decision issued by the hearing examiner may modify, affirm or reverse the hearing examiner’s decision.

I. Notice of Final Decision on Reconsideration. The director shall issue a notice of final decision on reconsideration in the manner set forth and to the persons identified in ECDC 20.02.007. [Ord. 4154 § 2 (Att. B), 2019; Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.010].

20.06.150 Judicial appeals.

Having exhausted any available administrative appeals, the city’s final decision on an application may be appealed by commencing a land use petition in Snohomish County superior court. Such petition must be commenced as provided in Chapter 36.70C RCW. [Ord. 4154 § 2 (Att. B), 2019].