Chapter 22.09


22.09.001    General.

22.09.002    Responsibility of director for hearing.

22.09.003    Conflict of interest, ethics, open public meetings, appearance of fairness.

22.09.004    Ex parte communications.

22.09.005    Disqualification and recusal.

22.09.006    Burden and nature of proof.

22.09.007    Order of proceedings.

22.09.008    Decision and notice of decision.

22.09.009    Calculation of time period for issuance of notice of decision.

22.09.001 General.

Public hearings on all Type II, III-A, III-B, and V project permit applications shall be conducted in accordance with this chapter (RCW 36.70B.020 (3)). (Ord. 1120 § 1, 1996).

22.09.002 Responsibility of director for hearing.

The director shall:

(a) Schedule the application for review and public hearing.

(b) Give notice of the public hearing.

(c) Prepare the staff report on the application, which shall be a single report stating all of the decisions made as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall state any mitigation required or proposed under the development regulations or the city’s authority under SEPA. 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. In the case of a Type I or II project permit application, this report may be the permit.

(d) Prepare the notice of decision, if required by the hearing body and/or mail a copy of the notice of decision to those required by this code to receive such decision. (Ord. 1120 § 1, 1996).

22.09.003 Conflict of interest, ethics, open public meetings, appearance of fairness.

The hearing body shall be subject to the code of ethics (RCW 35A.42.020), prohibitions on conflict of interest (RCW 35A.42.020 and Chapter 42.23 RCW), open public meetings (Chapter 42.30 RCW), and appearance of fairness (Chapter 42.36 RCW) as the same now exist or may hereafter be amended. (Ord. 1120 § 1, 1996).

22.09.004 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 necessary to procedural aspects of maintaining an orderly process, unless he or she provides notice and opportunity for all parties to participate; except as provided in this section:

(1) Members of the hearing body may receive advice from legal counsel;

(2) Members of the hearing body may communicate with staff members (except where the proceeding relates to a code enforcement investigation or prosecution); provided, that the subject matter discussed is noted for the record by said member of the hearing body.

(b) If, before serving as a member of the hearing body in a quasi-judicial proceeding, such member 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 any member of the hearing body receives an ex parte communication in violation of this section, he or she shall place on the record:

(1) All written communications received;

(2) All written responses to the communications;

(3) State the substance of all oral communications received, and all responses made;

(4) The identity of each person from whom the member of the hearing body received any ex parte communication.

The hearing body shall advise all parties that these matters have been placed on the record. Upon request made within 10 days 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. 1120 § 1, 1996).

22.09.005 Disqualification and recusal.

(a) Any member who chooses to recuse himself shall state his reasons. Any member who chooses to recuse himself or is disqualified shall abstain from voting on the proposal, vacate the seat on the hearing body and leave the hearing.

(b) If disqualification would reduce the hearing body to less than a quorum, then all members present after stating their reasons for disqualification shall be qualified and permitted to vote.

(c) Except for Type V actions, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or decision unless the member has reviewed the evidence received. (Ord. 1120 § 1, 1996).

22.09.006 Burden and nature of proof.

Except for Type V actions, the burden of proof is on the proponent. The project permit application must be supported by proof that it conforms to the applicable elements of the city’s development regulations and comprehensive plan, and that any significant adverse environmental impacts have been adequately addressed. (Ord. 1120 § 1, 1996).

22.09.007 Order of proceedings.

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 as appropriate.

(a) Before receiving information 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 has the discretion to proceed or terminate.

(2) Any abstentions or disqualifications shall be determined.

(b) The presiding officer may take official notice of known information related to the issue, such as:

(1) A provision of any ordinance, resolution, rule, officially adopted development standard or state law;

(2) Other public records and facts judicially noticeable by law.

(c) Matters officially noticed need not be established by evidence and may be considered by the hearing body in its determination. Parties requesting notice shall do so on the record. However, the hearing body may take notice of matters listed in subsection (b)(2) of this section if stated for the record. Any matter given official notice may be rebutted.

(d) The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner and circumstances of such view on the record.

(e) Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.

(f) After receiving information, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided.

(g) When the planning commission performs in the capacity as the hearing body, a majority of the commission’s membership shall constitute a quorum for the transaction of official business; provided, that a smaller number may adjourn from time to time. Every official act taken by the commission on discretionary items requiring a public hearing shall be by resolution or motion adopted by an affirmative vote of a majority of the membership, except in those instances when one or more members of the commission recuse themselves from a particular case, then a resolution or motion shall be adopted by an affirmative vote of a majority of the membership present. However, failure to obtain such affirmative vote shall not prevent consideration by the commission of other resolutions and motions concerning such item which may subsequently be properly presented. All other official actions taken by the commission shall be by resolution or motion adopted by an affirmative vote of a majority of the quorum, or of the members present, if more members are present than required for a quorum. (Ord. 1145 § 1, 1997; Ord. 1120 § 1, 1996).

22.09.008 Decision and notice of decision.

(a) Following the hearing procedure described in FMC 22.09.007, 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 that is on appeal.

(b) The hearing body’s written decision shall issue within 10 days after the hearing on the project permit application. The notice of decision shall issue within 120 days after the city notifies the applicant that the application is complete. The time frames set forth in this section and FMC 22.09.009 shall apply to project permit applications filed on or after April 1, 1996.

(c) The city shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for appeal, if any. For Type II, III-A, III-B, and IV project permits, the notice of decision on the issued permit shall contain the requirements set forth in FMC 22.08.002(a).

(d) The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.

(e) The notice of decision shall be provided to the public as set forth in FMC 22.07.003(b).

(f) If the city is unable to issue the notice of decision on a project permit application within the time limits provided for in this section, the city 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 (RCW 36.70B.090). (Ord. 1120 § 1, 1996).

22.09.009 Calculation of time period for issuance of notice of decision.

(a) In determining the number of days that have elapsed after the local government has notified the applicant that the application is complete for purposes of calculating the time for issuance of the notice of decision, the following periods shall be excluded:

(1) Any period during which the applicant has been requested by the city to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the city notifies the applicant of the need for additional information until the earlier of the date the local government determines whether the additional information satisfies the request for information or 14 days after the date the information has been provided to the city;

(2) If the city determines that the information submitted by the applicant under subsection (a)(1) of this section is insufficient, the city shall notify the applicant of the deficiencies and the procedures under subsection (a)(1) of this section shall apply as if a new request for studies had been made;

(3) Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW, if the city by ordinance has established time periods for completion of environmental impact statements, or if the city and the applicant in writing agree to a time period for completion of an environmental impact statement;

(4) Any period for administrative appeals of project permits, if an open record appeal hearing or a closed record appeal, or both, are allowed. The time period for consideration and decision on appeals shall not exceed:

(A) Ninety days for an open record appeal hearing; and

(B) Sixty days for a closed record appeal.

The parties may agree to extend these time periods; and

(5) Any extension of time mutually agreed upon by the applicant and the city.

(b) The time limits established in this title do not apply if a project permit application:

(1) Requires an amendment to the comprehensive plan or a development regulation;

(2) Requires approval of the siting of an essential public facility as provided in RCW 36.70A.200;

(3) Is an application for a permit or approval described in FMC 22.05.007; or

(4) Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete under FMC 22.06.004 (RCW 36.70B.090). (Ord. 1120 § 1, 1996).