Chapter 2.20
ZONING HEARING EXAMINER
Sections:
2.20.030 Selection and retention of examiner.
2.20.040 Qualifications for appointment.
2.20.090 Decision of examiner.
2.20.100 Request for reconsideration.
2.20.110 Appeal of final decision.
2.20.120 City council decision of appeal.
2.20.130 Matters for decision.
2.20.140 Decision considered recommendation.
2.20.150 Authority does not limit mayor, council.
2.20.160 Assumption of jurisdiction.
2.20.010 Purpose.
The purpose of this chapter is to:
A. Separate the land use regulatory function from the land use planning process;
B. Ensure procedural due process and appearance-of-fairness of land use regulatory hearings and decisions;
C. Provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters;
D. Provide for consistency and predictability in land use decision making and the application of policies and regulations adopted by the city;
E. Establish clear and understandable rules governing the land use decision-making process. (Ord. 885 §1, 1991).
2.20.020 Definitions.
For the purpose of this chapter, the words set out in this section shall have the following meanings:
A. "Affected party" 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 and shall include any party in a contested case.
B. "Applicant" means those applying to the city for approval of land uses that conform to the city’s goals, policies, plans and programs of development.
C. "City" means the city of Elma, Washington.
D. "Council" means the Elma city council.
E. Decision or Final Decision. When used in this chapter or any ordinance or code section relating to the powers and responsibilities of the examiner, the term shall be the final action of the examiner. Utilization of the term or terms shall in no way be deemed to restrict the powers and authority of the council and mayor as they may be granted by the laws and ordinances of the city to accept the final decision of the examiner as a recommendation and to proceed with his, her or their role in the decision-making process.
F. "Department" means city planning department.
G. "Examiner" means the hearing examiner of the city.
H. "Ex parte communication" means written or oral communications not included in the public record and made outside of a public hearing.
I. "Party of record" means:
1. The applicant or his, her or its designated agent;
2. Any person attending a public hearing, requesting notification of the examiner’s decision and being given assurance on the record that such notification will be given;
3. Person submitting written arguments dealing with the merits of the case;
4. Person attending a public hearing requesting notification of the examiner’s decision.
J. "Staff" means departments of the city.
K. "Planning agency," when used in relation to any matter arising under Titles 16 and 17, shall mean the hearing examiner. (Ord. 1120 §1, 2013: Ord. 885 §2, 1991).
2.20.030 Selection and retention of examiner.
The examiner shall be selected by the mayor, subject to confirmation by the city council. The examiner may be retained under a professional services contract for a term and on conditions determined appropriate by the mayor. The contract may also provide for examiners pro tem to serve in the absence of the examiner under such terms and conditions deemed appropriate by the mayor. (Ord. 885 §3, 1991).
2.20.040 Qualifications for appointment.
Examiners shall be appointed solely with regard to their qualifications for the duties of their office and will have such training and experience as will qualify them to conduct administrative or quasi-judicial hearings on regulatory enactments and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointive office or position with the city. An examiner may be removed from office at will by the mayor, however, such removal shall not affect the ability of the examiner to complete any cases for which he or she has already undertaken the hearing. (Ord. 885 §4, 1991).
2.20.050 Term.
The term of appointment for the examiner and any deputy examiner shall be for a period of four years, being coterminus with the term of the mayor subject to termination as provided in Section 2.20.040. Temporary examiners may be appointed for such terms and functions as the mayor and council deem appropriate. (Ord. 885 §5, 1991).
2.20.060 Ex parte contact.
A. In order to assure an appearance of fairness in matters considered by the examiner, no person shall have an ex parte contact with the examiner regarding such matter and no person, including governmental officials and employees, shall attempt to interfere with or influence the examiner outside of public hearing; provided, that a city official or employee may, in the performance of his or her officials duties, provide information to the examiner when the action is disclosed at the hearing or meeting.
B. No examiner shall conduct or participate in any hearing or decision in which the examiner may have a direct or indirect financial or personal interest or in which any such conduct or participation would violate any rule of law applicable thereto. (Ord. 885 §6, 1991).
2.20.070 Rules of procedure.
The examiner may prescribe rules for the scheduling and conduct of hearings and other rules of procedure. Application for the consideration of cases to be heard by the examiner shall be made to the office of the clerk-treasurer. (Ord. 885 §7, 1991).
2.20.080 Computation of time.
In computing any period of time prescribed by this chapter, the time shall be computed as established in Section 1.04.010(A)(2) of this code. (Ord. 885 §8, 1991).
2.20.090 Decision of examiner.
A. Within twenty days of the conclusion of a hearing, unless a longer period is mutually agreed to by the applicant and the examiner or established by the specific provision governing such matters, the examiner shall render a written decision which shall include findings and conclusions based on the record. The decision of the examiner shall be final and conclusive, as to any further action or appeal as to those matters in which the examiner’s decision is in fact passed on to the mayor and council as a recommendation, on the twenty-first day after the date of the decision unless a notice of appeal to the city council is filed pursuant to this chapter.
B. Notice of the decision shall be given in writing to the applicant and any other individual or entity which has been given status as a party, such notice to be sent to the last known address of the applicant or party by United States Postal Service, first class postage prepaid, or by such other class of postage as may be deemed appropriate by the examiner. (Ord. 885 §9, 1991).
2.20.100 Request for reconsideration.
Any affected person or agency, who or which disagrees with the decision of the examiner, may make a written request for reconsideration by the examiner within fifteen days of the date of the written decision unless a different period of reconsideration is established by the particular section involved, in which case such specific section shall control. The request for reconsideration shall be filed with the clerk-treasurer upon forms prescribed by the examiner. If the examiner chooses to reconsider, the examiner may take such further action as the examiner deems proper and may render a revised decision. Upon a request for reconsideration, it is not a prerequisite to file an appeal pursuant to this chapter. Upon a decision denying the request for reconsideration, the decision shall be deemed to be the final decision of the examiner. All notices requesting reconsideration shall be filed within the initial fifteen days and there shall be no right to request reconsideration of the examiner’s reconsideration of a decision. (Ord. 885 §10, 1991).
2.20.110 Appeal of final decision.
In those matters in which the decision of the examiner is in fact the final decision and not a recommendation to the mayor and council, the final decision by the examiner may be appealed to the city council by any affected person or agency directly affected by the examiner’s decision in the following manner:
A. The appellant must file a complete written notice of appeal With the clerk-treasurer’s office upon forms prescribed by the clerk-treasurer and pay the appeal fee as that fee may be from time-to-time established by written resolution. Filing and payment must be accomplished within twenty days of the date of the examiner’s final decision, unless a different period of reconsideration is established by the particular section involved, in which case such specific section shall control; provided that, if the examiner was requested to reconsider the decision, then the appeal must be filed within ten days of the examiner’s decision on the reconsideration request.
B. The notice of appeal shall concisely specify the error or issue which the council is asked to consider on appeal and shall cite in the notice of appeal or accompanying memorandum, by reference to section, page and paragraph, the provisions of ordinance or law which are alleged to have been violated. Issues which are not so identified need not be considered by the council. The notice shall be accompanied by such written documents as the appellant may wish considered by the council; provided, that such memorandum shall not include the presentation of new evidence and shall be based only upon the facts presented to the examiner.
C. The city shall notify the parties of record, who shall be deemed to be the affected parties, that an appeal has been filed and that copies of the notice of appeal and the appellant’s documentation may be obtained from the clerk-treasurer. The notice to parties shall also state that the parties of record wishing to respond to the appeal may submit such written documentations to the council within twenty days from the date of the notice to parties as mailed by the city. The appellant or parties of record may request in writing and the council may grant extension of time within which documentation may be submitted; provided, that the request for extension is made no later than the last date the written documentation would otherwise be due. A party may be granted only one extension. Notice of request for extension shall be given to all parties of record.
D. The timely filing of a notice of appeal shall stay the effective date of the examiner’s decision until the appeal is determined by the council or until the appeal is withdrawn. (Ord. 885 §11, 1991).
2.20.120 City council decision of appeal.
A. When an appeal has been timely filed and the deadline for receipt of documentation has expired, the clerk-treasurer’s office shall deliver to the council a copy of the examiner’s decision and the evidence presented to the examiner, as well as an audio recording of the hearing before the examiner. The council may view the site, either individually or together; provided that, unless all parties of record are given reasonable notice of the time of the view, no one other than city staff shall accompany the council members during the view. When council members have the decision, the documentation submitted in support of and in opposition to the appeal, and heard the recording, the clerk-treasurer shall schedule a hearing for public meeting by the council at which time the council shall be entitled to render a decision. The date of the public hearing shall be not later than sixty days following the date the council receives the information from the clerk-treasurer.
B. The clerk-treasurer shall mail written notice to all parties of record and the examiner to apprise them of the meeting date before the council. For purposes of this notification, the parties of record shall be as previously defined.
C. The council’s review of facts is limited to evidence presented to the examiner. The council may request additional information or written documentation in order to reach a decision; provided, that all parties of record present at the meeting are given an opportunity to respond to the material provided.
D. At the public meeting, or any extension thereof, the council may adopt, amend and adopt, reject, reverse, amend and reverse the findings, conclusions and decision of the examiner, or remand the matter for further consideration. If the council renders a decision different from the decision of the examiner, the council shall adopt amended findings and conclusions accordingly. (Ord. 885 §12, 1991).
2.20.130 Matters for decision.
A hearing examiner shall hear and decide matters assigned to the examiner by the council, including but not limited to the following land use matters:
A. Such matters as may be prescribed pursuant to the zoning code, including but not limited to rezone applications, these being deemed to be amendments to the zoning ordinance which are not of general applicability; variances; and conditional uses;
B. Plat vacations or amendments, long plats, long subdivisions and redivisions of land excepting short plats;
C. Such hearings required pursuant to the State Environmental Policy Act (Chapter 43.21(c) RCW) as may be required by the official charged with the responsibility for holding such a hearing; provided, that the substantive SEPA decision and the decision on the associated actions shall be made by the designated officials.
D. When assigned by the council, amendments to the comprehensive plan, the uniform development code, including general amendments to the code, or other matters arising under the provisions of Titles 16 and 17. (Ord. 1120 §2, 2013: Ord. 885 §13, 1991).
2.20.140 Decision considered recommendation.
As to those matters which are assigned to the examiner by the mayor or council for hearing, by way of example and not by way of limitation, rezone applications, variances, conditional uses, plat vacations or amendments, long plats, long subdivisions and redivisions of land other than short plats, the decision of the examiner shall be a recommendation to the mayor and council. The mayor and council may adopt, amend and adopt, reject, reverse or amend and reverse the findings, conclusions and recommendation of the examiner or remand the matter for further consideration. (Ord. 885 §14, 1991).
2.20.150 Authority does not limit mayor, council.
The authority granted to the examiner pursuant to this or any other section of this code shall in no way be deemed to be a limitation upon the authority and responsibility of the mayor and council which may be granted pursuant to the applicable provisions of any other portion or section of this code, with the decisions of the examiner being deemed advisory to the mayor and council subject to acceptance, rejection or modification as provided for in this code. (Ord. 885 §15, 1991).
2.20.160 Assumption of jurisdiction.
Any matter for which a hearing has not yet been held and which is within the jurisdiction of the hearing examiner shall be processed pursuant to this chapter. Any matter for which hearings have already been held by the planning commission shall be processed to completion in the manner existing as of the date of the adoption of the ordinance codified in this chapter. (Ord. 885 §16, 1991).