Chapter 1.36HEARING EXAMINER SYSTEM

Sections:

1.36.010
Purpose.
1.36.020
Office Created.
1.36.021
Areas of Jurisdiction.
1.36.030
Appointment and Terms.
1.36.040
Removal.
1.36.050
Qualifications.
1.36.060
Examiner Pro Tem.
1.36.070
Conflict of Interest and Freedom from Improper Influence.
1.36.080
Repealed.
1.36.090
Repealed.
1.36.091
Repealed.
1.36.092
Hearing Examiner's Recommendation.
1.36.100
Repealed.
1.36.110
Decision of the Examiner which are Final.
1.36.115
Initiating Appeals.
1.36.120
Hearing Procedures.
1.36.123
Prehearing Conference.
1.36.126
Independent and Alternative Hearing Officer Procedures for Local Improvement Districts and Utility Local Improvement Districts.
1.36.127
Formation Hearing Officer Procedures and Requirements for Local Improvement Districts and Utility Local Improvement Districts.
1.36.128
Final Assessment Roll Hearing Officer Procedures and Requirements.
1.36.130
Public Hearing.
1.36.140
Procedural Notice Requirements.
1.36.150
Community Development Department Report.
1.36.160
General Criteria for Examiner Decisions.
1.36.170
Repealed.
1.36.180
Repealed.
1.36.190
Repealed.
1.36.200
Repealed.
1.36.210
Examiner Actions.
1.36.220
Repealed.
1.36.230
Repealed.
1.36.240
Repealed.
1.36.250
Repealed.
1.36.260
Repealed.
1.36.265
Decision on Appeals.
1.36.270
Repealed.
1.36.271
Reconsideration.
1.36.280
Review of Final Decisions.
1.36.290
Applicability of Chapter.
1.36.010Purpose.

The purpose of this Chapter is to establish a hearing examiner system under the provisions of Chapter 35A.63 RCW to hear and decide applications for land uses and other matters as specifically assigned by ordinance. (Ord. 264 § 3, 2001; Ord. 13 § 1, 1995.)

1.36.020Office Created.

The office of Hearing Examiner is hereby created to act on behalf of the City Council by considering and applying zoning and regulatory ordinances to the land as provided herein. The Examiner shall also be authorized to act in a decision making role involving administrative matters and such other quasi-judicial matters as may be granted by ordinance or referred to the Hearing Examiner by the City Manager. (Ord. 13 § 2, 1995.)

1.36.021Areas of Jurisdiction.

The Examiner shall receive and examine relevant information, conduct public hearings, maintain a record thereof, and enter findings of fact, conclusions of law, and recommendations to the City Council or other order, as appropriate. (Ord. 585 § 1, 2014; Ord. 298 § 1, 2003.)

1.36.030Appointment and Terms.

The Examiner shall be appointed by the City Manager, subject to confirmation by the Council, to serve for a term of two years. (Ord. 13 § 3, 1995.)

1.36.040Removal.

The Examiner may be removed from office at any time for just cause by the affirmative vote of a majority of the whole membership of the Council. (Ord. 13 § 4, 1995.)

1.36.050Qualifications.

The Examiner shall be appointed solely on the basis of qualifications for the duties of the office with special reference to training, actual experience in, and knowledge of administrative or quasi-judicial hearings on zoning, subdivision and other land use regulatory enactments. (Ord. 13 § 5, 1995.)

1.36.060Examiner Pro Tem.

In the event of the absence or the inability of the Examiner to act on an application, a Hearing Examiner pro tem may be appointed, in the manner specified in Section 3 of this Ordinance, for such application or period of absence, and shall have all the duties and powers of the Examiner. (Ord. 13 § 6, 1995.)

1.36.070Conflict of Interest and Freedom from Improper Influence.

The Examiner shall not conduct or participate in any hearing or decision in which the Examiner or any of the following persons has a direct or substantial financial interest: The Examiner's spouse, sibling, child, parent, in-laws, partner; any business in which the Examiner is then serving or has served within the previous two (2) years; or any business with which such Examiner is negotiating for, or has had arrangement or understanding concerning, possible partnership or employment. Any actual or potential interest shall be disclosed prior to such hearing.

Participants in the hearing process have the right, insofar as possible, to have the Examiner and the City Council members free from personal interest or pre-hearing contacts on matters considered by them. It is recognized that there is a countervailing public right to free access to public officials on any matter. Therefore, the Examiner and City Council members shall reveal any substantial interest or pre-hearing contact made with them concerning the proceeding, at the commencement of such proceeding. If such interest or contact impairs the Examiner or Council members' ability to act on the matter, such person shall so state and shall abstain therefrom to the end that the proceeding is fair and has the appearance of fairness.

Individual Councilmembers, City officials or any other persons shall not interfere or attempt to interfere with the performance of the Examiner's designated duties. (Ord. 13 § 7, 1995.)

1.36.080Functions Relating to Area Zoning. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 13 § 8, 1995.)

1.36.090Decisions Appealable to the Council. (Repealed)

(Repealed Ord. 276 § 1 (part), 2002; Ord. 264 § 4, 2001; Ord. 77 § 1 (part), 1996; Ord. 13 § 9, 1995.)

1.36.091Appeal of Recommendations of the Hearings Examiner. (Repealed)

(Repealed Ord. 585 § 2, 2014; Ord. 298 § 2, 2003.)

1.36.092Hearing Examiner's Recommendation.

A. For actions requiring the hearing examiner’s recommendation, the examiner’s recommendation shall be forwarded to the city council within 10 calendar days of the examiner’s decision. The recommendation shall be placed on the next agenda of the city council. The city council upon its review of the record may:

1. Affirm the recommendation;

2. Remand the recommendation to the hearing examiner;

3. Schedule a closed record public hearing before the city council.

B. Any aggrieved person may request the city council to conduct its own closed record hearing. Upon its own closed record hearing the city council may affirm, reject, modify the hearing examiner’s recommendation or take whatever action it deems appropriate pursuant to law. (Ord. 585 § 3, 2014.)

1.36.100Recommendations to the Council. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 77 § 1 (part), 1996; Ord. 13 § 10, 1995.)

1.36.110Decision of the Examiner which are Final.

Except as to those matters which are reviewed by the City Council, the Hearing Examiner shall be the final decision making authority of the City of Lakewood for all administrative matters and such other quasi-judicial matters which are subject to this chapter. (Ord. 585 § 4, 2014; Ord. 276 § 1 (part), 2002; Ord. 264 § 5, 2001; Ord. 77 § 1 (part), 1996; Ord. 13 § 10, 1995.)

1.36.115Initiating Appeals.

A. Review Initiated by Notice. A party seeking review of a decision reviewable by the Hearing Examiner must file a notice of appeal.

B. Time for filing Notice of Appeal. A notice of appeal must be filed with the City Clerk within 10 days after the entry of the decision that the party filing the notice wants reviewed.

C. Filing Fee. The first party to file a notice of appeal must, at the time the notice is filed, pay the filing fee, as set forth in the City of Lakewood fee schedule adopted pursuant to LMC 3.20.010, to the City Clerk. If the appellant asserts that the matter is one for which a fee is not required pursuant to the provisions of this Code or other applicable law, the City Clerk shall receipt the notice of appeal without fee. The issue of whether a filing fee is required shall be prompted decided by the Hearing Examiner. If the Hearing Examiner determines that a filing fee is required, the appellant shall be required to tender the filing fee within ten days of the date of such decision. Where a filing fee is required, but not paid, on motion, the appeal shall be dismissed.

D. Contents of Notice of Appeal. A notice of appeal must (1) be titled a notice of appeal, (2) specify the party or parties seeking the review, (3) designate the decision or part of decision which the party wants reviewed; (4) A brief statement setting forth the legal interest of each of the appellants participating in the appeal; (5) A brief statement in concise language of the specific order or action protested, together with any material facts claimed to support the contentions of the appellant; (6). A brief statement in concise language of the relief sought, and the reasons why it is claimed the protested order or action should be reversed, modified, or otherwise set aside; (7) The signatures of all parties named as appellants, and their official mailing addresses;

The party filing the notice of appeal should attach to the notice of appeal a copy of the signed decision from which the appeal is made. (Ord. 585 § 5, 2014.)

1.36.120Hearing Procedures.

The Examiner shall have the power to prescribe procedures for the conduct of hearings subject to confirmation of the Council; and also to issue summons and subpoena to compel the appearance of witnesses and production of documents and materials, to order discovery, to administer oaths, and to preserve order. (Ord. 13 § 12, 1995.)

1.36.123Prehearing Conference.

The Hearing Examiner, at his/her discretion, or at the request of a party, may conduct a prehearing conference. The purpose of the prehearing conference shall be: (1) to determine the feasibility of settlement of the matter; (2) to obtain agreement as to issues of fact or law and facts to be presented at hearing and the simplification of limitation thereof; (3) to determine the possibility of obtaining admissions of facts and authenticity of documents, which will avoid unnecessary proof at hearing; (4) to determine the admissibility of exhibits; (5) to obtain stipulation as to all or part of the facts in the case; (6) to determine the number of expert and lay witnesses to be called by the parties and their names, when possible; (7) to determine the approximate time necessary for the presentation of the evidence of the respective parties; (8) to establish a hearing schedule; and (9) to obtain all other information which may aid in the prompt disposition of the cases.

The Examiner, following the prehearing conference, shall issue a prehearing order, which shall, unless properly amended, control the further course of proceedings in the matter. (Ord. 585 § 6, 2014.)

1.36.126Independent and Alternative Hearing Officer Procedures for Local Improvement Districts and Utility Local Improvement Districts.

The procedures set forth in Sections 1.36.126, 1.36.127 and 1.36.128 of this chapter are independent of and alternative to any other hearing or review processes heretofore or hereafter established by the City, and shall govern the conduct and review of LID and ULID formation and final assessment roll hearings conducted before Hearing Officers, and related proceedings when authorized and directed by the City Council. (Ord. 414 § 1, 2006.)

1.36.127Formation Hearing Officer Procedures and Requirements for Local Improvement Districts and Utility Local Improvement Districts.

A. As authorized by RCW 35.43.140, the City Council hereby provides for delegating, whenever directed by majority vote of the City Council, the duty of conducting public hearings for the purpose of considering and making recommendations on the formation of LIDs and ULIDs to a Hearing Officer appointed under this section, and the Hearing Officer is directed to conduct such hearings in the manner provided by law and make those recommendations when thus authorized by the City Council.

B. The Hearing Officer shall conduct the formation hearing to be commenced at the time and place designated by the City Council, cause an adequate record to be made of the proceedings, and make written findings, conclusions and recommendations to the City Council following the completion of such hearing, which may be continued and recontinued as provided by law whenever deemed proper by the Hearing Officer.

C. The recommendations of the Hearing Officer shall be reported to the City Council and they also shall be filed with the City Clerk and be open to public inspection.

D. The City Council shall consider, adopt, modify or reject the recommendations of the Hearing Officer in whole or in part, in the discretion of the Council, at a public meeting and shall act by ordinance in forming any LID or ULID. Council consideration and action shall be based on the record made before the Hearing Officer and no further evidence or argument will be permitted.

E. Any appeal from a decision of the City Council regarding formation of an LID or ULID may be made to the Superior Court within the time and in the manner provided by law. (Ord. 414 § 2, 2006.)

1.36.128Final Assessment Roll Hearing Officer Procedures and Requirements.

A. As authorized by RCW 35.44.070, the City Council hereby provides for delegating, whenever directed by majority vote of the City Council, the duty of conducting public hearings for the purpose of considering and making recommendations on final assessment rolls and the individual assessments upon property within LIDs and ULIDs to a Hearing Officer appointed under this section, and the Hearing Officer is directed to conduct such hearings in the manner provided by law and make those recommendations when thus authorized by the City Council.

B. All objections to the confirmation of the assessment roll shall be in writing and identify the property, be signed by the owners and clearly state the grounds of the objection. Objections not made within the time and in the manner prescribed and as required by law shall be conclusively presumed to have been waived.

C. The Hearing Officer shall conduct the final assessment roll hearing to be commenced at the time and place designated by the City Council, cause an adequate record to be made of the proceedings, and make written findings, conclusions and recommendations to the City Council following the completion of such hearing, which may be continued and recontinued as provided by law whenever deemed proper by the Hearing Officer.

D. The recommendations of the Hearing Officer shall be that the City Council correct, revise, lower, change or modify the roll or any part thereof, or set aside the roll in order for the assessment to be made de novo, or that the City Council adopt or correct the roll or take other action on the roll as appropriate, including confirmation of the roll without change. The recommendations of the Hearing Officer shall be filed with the City Clerk and be open to public inspection. All persons whose names appear on the assessment roll who timely filed written objections to their assessments shall receive mailed written notification of their assessments recommended by the Hearing Officer.

E. All persons who shall have timely filed written objections to their assessments may appeal the recommendations of the Hearing Officer regarding their properties to the City Council by filing written notice of such appeal with the City Clerk within ten (10) calendar days after the date of mailing of the Hearing Officer's recommendations.

F. Such appeals shall be based exclusively upon the record made before the Hearing Officer and shall be considered by the City Council at a public meeting. No new evidence may be presented. Arguments on appeal shall be either oral or written as the City Council may order.

G. The City Council shall adopt, modify or reject the recommendations of the Hearing Officer in whole or in part, in the discretion of the Council, at a public meeting and shall act by ordinance in confirming the final assessment roll.

H. Any appeal from a decision of the City Council regarding any assessment may be made to the Superior Court within the time and in the manner provided by law. (Ord. 414 § 3, 2006.)

1.36.130Public Hearing.

A. Before rendering a decision on any application or appeal, the Examiner shall hold at least one public hearing thereon.

B. Whenever a project requires more than one permit or approval, the Examiner may order a consolidation of and conduct the required public hearings to avoid unnecessary costs or delays. Decisions of the Examiner to order and conduct consolidated hearings shall be final in all cases. (Ord. 264 § 6, 2001; Ord. 13 § 13, 1995.)

1.36.140Procedural Notice Requirements.

Public hearings may be continued or reopened by the Examiner with written notice to all persons of record at least fourteen (14) calendar days prior to the rescheduled hearing. Public hearings may be continued by the Examiner without additional written notice provided the continuance is made during open session to a specific date, time, and location. (Ord. 264 § 7, 2001; Ord. 13 § 14, 1995.)

1.36.150Community Development Department Report.

When an application or appeal has been set for public hearing, the Community Development Department shall coordinate and assemble the reviews of other departments and governmental agencies having an interest in the subject application or appeal and shall prepare a report summarizing the factors involved and the department findings and recommendation or decision. At least five (5) working days prior to the date of the scheduled hearing, the report, and in the case of appeals any written appeal arguments submitted to the City, shall be filed with the Examiner and copies thereof shall be mailed to all persons of record who have not previously received said materials. (Ord. 264 § 8, 2001; Ord. 77 § 1 (part), 1996; Ord. 13 § 15, 1995.)

1.36.160General Criteria for Examiner Decisions.

A. Each decision of the Examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision.

B. The Examiner's findings and conclusions shall set forth and demonstrate the manner in which the decision is consistent with, carries out and helps implement applicable state laws, the policies, objectives and goals of the comprehensive plan, the approval criteria, development standards and regulations of the land use and development code and the subdivision code, and other official laws, policies and objectives of the City.

C. The Examiner shall accord substantial weight to the recommendation of the Community Development Department. (Ord. 264 § 9, 2001; Ord. 13 § 16, 1995.)

1.36.170Additional Criteria for Pending Area Zoning - Recommendations. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 13 § 17, 1995.)

1.36.180Additional Criteria for Subdivision Decisions. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 13 § 18, 1995.)

1.36.190Additional Criteria for Subdivision Decisions. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 13 § 19, 1995.)

1.36.200Additional Criteria for Variances. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 77 § 1 (part), 1996; Ord. 13 § 20, 1995.)

1.36.210Examiner Actions.

Within ten (10) days of the conclusion of a hearing or rehearing, the Examiner shall render a written recommendation or decision and shall transmit a copy thereof to the City of Lakewood and to all persons of record.

A. The Examiner’s decision may be to grant or deny the application or appeal, or the Examiner may grant the application or appeal with such conditions, modifications and restrictions as the Examiner finds necessary to make the application or appeal compatible with the environment and carry out applicable state laws and regulations, the policies, objectives and goals of the comprehensive plan, the approval criteria, development standard and regulations of the land use and development code and the subdivision code, and other ordinances, policies and objectives of the City.

B. A cash guarantee, letter of credit or an equivalent measure approved by the City may be required to insure compliance with the conditions, modifications and restrictions. (Ord. 264 § 10, 2001; Ord. 77 § 1 (part), 1996; Ord. 13 § 21, 1995.)

1.36.220Appeal to Examiner - Notice and Content. (Repealed)

(Repealed Ord. 264 § 18, 2001; Ord. 13 § 22, 1995.)

1.36.230Appeal to Council - Notice. (Repealed)

(Repealed Ord. 276 § 1 (part), 2002; Ord. 264 § 11, 2001; Ord. 13 § 23, 1995.)

1.36.240Appeal to Council - Content. (Repealed)

(Repealed Ord. 276 § 1 (part), 2002; Ord. 13 § 24, 1995.)

1.36.250Appeal to Council - Consideration. (Repealed)

(Repealed Ord. 276 § 1 (part), 2002; Ord. 264 § 12, 2001; Ord. 13 § 25, 1995.)

1.36.260Appeal to Council - Council Action. (Repealed)

(Repealed Ord. 276 § 1 (part), 2002; Ord. 264 § 13, 2001; Ord. 13 § 26, 1995.)

1.36.265Decision on Appeals.

1. In considering appeals, the hearing examiner shall do one of the following:

a. Affirm the decision;

b. Reverse the decision;

c. Affirm the decision with modifications; or

d. Remand the decision to the appropriate department director for further consideration. The hearing examiner shall include in the order the issues to be reviewed on remand.

2. Conditions. The hearing examiner may include conditions as part of a decision granting, or granting with modifications an appeal to ensure conformance with this Code, the City's comprehensive plan or any other applicable laws or regulations.

3. Written Decision. Within 10 working days after completion of the public hearing, unless the parties and the hearing examiner have agreed to an extension of time, the hearing examiner should issue a written decision on the appeal which contains the following:

a. The decision of the hearing examiner granting or denying the appeal in whole or in part;

b. Any conditions included as part of the decision on the appeal;

c. Findings of facts upon which the decision, including any conditions, is based and the conclusions of law derived from those facts; and

d. A statement of the right of a person with standing to appeal the decision.

If the Examiner is unable to issue a written decision within 10 working days, the Examiner shall inform the applicant, appellant, and the Community Development Department that additional time will be required and shall provide an estimated date for issuance of a decision on the appeal.

4. Distribution. The hearing examiner or designee shall mail a copy of the written decision to the applicant, the appellant, the applicable department director, and any person requesting the written decision or who submitted substantive comments on the application prior to the decision. (Ord. 585 § 7, 2014.)

1.36.270Reconsideration of Final Action. (Repealed)

(Repealed Ord. 276 § 1 (part), 2002; Ord. 13 § 27, 1995.)

1.36.271Reconsideration.

Any party of record feeling that a decision of the examiner is based upon erroneous procedures, errors of law or of fact, error in judgment, or has discovered new evidence which could not be reasonably available at the open record public hearing, may make a written request to the examiner, filed with the City Clerk, together with any fee that may be set forth in the City’s Fee Schedule pursuant to LMC 3.20.010, for reconsideration by the examiner within eight business days of the date the decision is rendered. The City Clerk shall forward the request for reconsideration to the examiner within three business days. The request shall set forth the specific errors or new information relied upon by such appellant, and the examiner, after review of the request(s) and the record, may:

1. Affirm in writing the previous decision;

2. Reopen the record and public hearing process;

3. Take further action as he/she deems proper.

The filing of a request for reconsideration by the hearing examiner shall effectively stay the appeal period until the examiner takes further action. Such action shall occur within 10 business days of the date of filing a request for reconsideration. (Ord. 575 § 8, 2013.)

1.36.280Review of Final Decisions.

A. The decision of all matters decided hereunder shall be final and conclusive unless, within twenty-one days from the date of the final decision, an applicant or an aggrieved party makes an application to court of competent jurisdiction or competent administrative agency for review.

B. If a statute provides that an application for judicial review must be filed within a time period other than set forth in this Code, the application for judicial review, and the finality of the decision, shall be governed by the time period established by the statute. (Ord. 585 § 9, 2014; Ord. 264 § 14, 2001; Ord. 13 § 28, 1995.)

1.36.290Applicability of Chapter.

A. To What Proceedings Applicable. Except where inconsistent with those rules, statutes or provisions of the Code, this Chapter shall govern all matters before the Hearing Examiner. Where such rules, statutes or provisions of the Code relates to proceedings provide for procedure before the Hearing Examiner, the procedure shall be governed by those rules, statutes or provisions of the Code.

B. Conflicting Statutes and Rules. Subject to the provisions of paragraph (a) of this section, this chapter supersedes all procedural Codes and other rules that may be in conflict. (Ord. 585 § 10, 2014; Ord. 264 § 15, 2001; Ord. 77 § 1 (part), 1996.)