Chapter 2.22
HEARING EXAMINER

Sections:

2.22.010    Purpose.

2.22.020    Hearing examiner – Office created – Duties.

2.22.030    Hearing examiner – Appointment.

2.22.040    Hearing examiner – Qualifications.

2.22.050    Hearing examiner – Removal.

2.22.060    Hearing examiner – Freedom from improper influence.

2.22.070    Hearing examiner – Conflict of interest.

2.22.080    Hearing examiner – Prescription of rules for hearings.

2.22.090    Hearing examiner – Powers.

2.22.100    Land use issues – Report of community development department.

2.22.170    Report to and meeting with planning commission and city council.

2.22.210    Notice of violation – Administrative appeal.

2.22.220    Notice of violation – Extension of date set for correction.

2.22.230    Enforcement hearings.

2.22.240    Collection of civil penalty.

2.22.010 Purpose.

The purpose of this chapter is to establish a system of land use regulatory hearings which will satisfy the following basic needs:

A. A prompt opportunity for a hearing and decision on alleged violations of land use regulations, and such other regulations as may be assigned to the hearing examiner;

B. To provide an efficient and effective system for deciding variances and appeals from administrative decisions;

C. To help insure procedural due process and appearance of fairness by holding such hearings before a neutral party, competent in the fields of land use and procedural requirements. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 1, 1981)

2.22.020 Hearing examiner – Office created – Duties.

Pursuant to Chapters 35A.63 and 58.17 RCW, the office of hearing examiner, referred to in this chapter as examiner, is created. The examiner shall interpret, review and implement land use regulations and such other duties as may be assigned. The term “examiner” as used in this chapter shall include any deputy examiners, examiners pro tem or substitute examiners. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1355 § 1, 1983; Ord. 1208 § 2, 1981)

2.22.030 Hearing examiner – Appointment.

The hearing examiner shall be employed on a contract basis, to be negotiated. Examiners pro tem (i.e., substitute) may also be contracted to serve in the event of absence or inability of the examiner to act. Prior to entering into a contract for the first year of either the hearing examiner or any pro tem examiner(s), each shall be confirmed by the city council according to the procedures set forth in Chapter 2.06 LMC. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 2324 § 2, 2000; Ord. 1208 § 3, 1981)

2.22.040 Hearing examiner – Qualifications.

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 or regulatory enactments and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointive office or position in the city of Lynnwood. This section is not intended to provide for the qualifications of the position, but only to require that qualifications of the applicants for the position be the sole criteria for their appointment, subject to approval of a personal service contract with the examiner by the city council following city council confirmation of their appointment under the procedures established in Chapter 2.06 LMC. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 2324 § 3, 2000; Ord. 1208 § 4, 1981)

2.22.050 Hearing examiner – Removal.

An examiner may be removed from office for cause by the mayor with concurrent majority vote of the city council. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 5, 1981)

2.22.060 Hearing examiner – Freedom from improper influence.

No person shall attempt to influence an examiner in any matter pending before the examiner, except publicly at a public hearing duly called for such purpose, or to interfere with an examiner in the performance of such duties in any other way; provided, that this section shall not prohibit the city attorney from rendering legal services to the examiner. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 6, 1981)

2.22.070 Hearing examiner – Conflict of interest.

No examiner shall conduct or participate in any hearing, decision or recommendation in which the examiner has a direct or indirect substantial financial or familiar interest, or concerning which the examiner has had substantial prehearing contacts with proponents or opponents wherein the issues were discussed; nor, on appeal from or review of an examiner decision, shall any member of the legislative body who has such an interest or has had such contacts participate in the consideration thereof. This is not intended to prohibit necessary or proper inquiries on matters such as scheduling, but any such contacts are to be entered into the official record of the hearing. Whenever possible, such inquiries and the responses to such inquiries shall be in writing.

The office of the examiner shall be separate from and not a part of the community development department. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 2957 § 30, 2012; Ord. 1208 § 7, 1981)

2.22.080 Hearing examiner – Prescription of rules for hearings.

The examiner shall prescribe rules for the scheduling and conduct of hearings and other procedural matters related to the duties of his office. Such rules shall provide for rebuttal and may authorize the examiner to limit the time allowed to parties testifying on an equal basis, and time limits on rebutting. Cross-examination of witnesses may be allowed only in the case of enforcement hearings on violations of city codes. For all other hearings, any person desiring to question other parties testifying at the hearing shall direct such questions to the examiner, who shall rule on whether or not such questions are to be answered and who shall answer them. Also, the examiner shall prescribe rules for the suspension of and/or reduction of civil penalties. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1251 § 1, 1982; Ord. 1208 § 8, 1981)

2.22.090 Hearing examiner – Powers.

The examiner shall receive and examine available information, conduct public hearings and prepare a record thereof, and enter decisions.

A. In the performance of duties prescribed by this chapter or other ordinances, examiners may:

1. Administer oaths and affirmations, examine witnesses, rule upon offers of proof, receive relevant evidence, and conduct discovery procedures which may include propounding interrogatories and taking oral depositions pursuant to Washington State court rules; provided, that no person shall be compelled to divulge information which he could not be compelled to divulge in a court of law;

2. Upon the request of the community development department or any party, or upon his own volition, issue and cause to be served subpoenas for the attendance of witnesses and for production for examination of any books, records, or other information in the possession or under the control of any witness; provided, that such subpoena shall state the name and address of the witness sought, and if for the production of books, documents or things, shall specifically identify the same and the relevance thereof to the issues involved;

3. Regulate the course of the hearing in accordance with this chapter and other applicable ordinances;

4. Hold conferences for the settlement or simplification of the issues by consent of the parties;

5. Dispose of procedural requests or similar matters;

6. Take any other action authorized by ordinance.

In case of failure or refusal without lawful excuse of any person duly subpoenaed to attend pursuant to such subpoena, or to be sworn, or to answer any material and proper question, or to produce upon reasonable notice any material or proper books or records or other information in his possession and under his control, the hearing examiner may invoke the aid of the city attorney who shall apply to the appropriate court for an order or other court action necessary to secure enforcement of the subpoena. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 2957 § 12, 2012; Ord. 2077 § 1, 1996; Ord. 2019 § 1, 1995; Ord. 1355 § 2, 1983; Ord. 1312 § 1, 1983; Ord. 1208 § 9, 1981)

2.22.100 Land use issues – Report of community development department.

On any land use issue coming before the examiner, the community development department shall coordinate and assemble the reviews of other city departments, governmental agencies, and other interested parties and shall prepare a report summarizing the factors involved and the department’s findings and recommendations. At least seven calendar days prior to the scheduled hearing, the report shall be filed with the examiner and copies thereof shall be mailed to the applicant and made available for public inspection. Copies thereof shall be provided to interested parties upon payment of reproduction costs. In the event that information to be provided by the applicant or other parties outside of city control has not been provided in sufficient time for filing seven days in advance of the hearing, the community development department may reschedule the hearing and notify interested parties. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 2957 § 13, 2012; Ord. 1208 § 10, 1981)

2.22.170 Report to and meeting with planning commission and city council.

The examiner shall report in writing to and meet with the planning commission and city council at least annually for reviewing the administration of the land use policies and regulatory ordinances, and any amendments to city ordinances or other policies or procedures which would improve the performance of the examiner process. Such report shall include a summary of the examiner’s decisions since the last report. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 17, 1981)

2.22.210 Notice of violation – Administrative appeal.

A notice of violation issued pursuant to this section through LMC 2.22.230 constitutes a determination from which an administrative appeal may be taken pursuant to Process II (LMC 1.35.200 et seq.). The cumulative civil penalty provided for in LMC 1.01.085 as now or hereafter amended shall not accrue during the pendency of an administrative appeal; however, if the hearing examiner finds that the appeal is frivolous and/or intended to delay compliance with the applicable title, the examiner may impose the per diem penalty from the date of service of the notice of violation. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 2019 § 2, 1995; Ord. 1251 § 6, 1982; Ord. 1208 § 18(3), 1981)

2.22.220 Notice of violation – Extension of date set for correction.

For good cause shown, the director may extend the date set for correction in the notice of violation; provided, that such an extension shall not affect or extend the time within which an administrative appeal must be commenced. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 18(4), 1981)

2.22.230 Enforcement hearings.

A. The hearing process for enforcement hearings shall be generally the same as the hearings on variances.

B. Ten days’ notice of hearing before the hearing examiner shall be given to the appellant.

C. Appeal to the superior court of an examiner’s decision in an enforcement hearing shall be filed within 14 days of the examiner’s written opinion. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 18(5), (6), 1981)

2.22.240 Collection of civil penalty.

The civil penalty constitutes a personal obligation of the person(s) to whom the notice of violation is directed. The city attorney, on behalf of the city, is authorized to collect the civil penalty by use of appropriate legal remedies, the seeking or granting of which shall neither stay or terminate the accrual of additional per diem penalties so long as the violation continues. (Ord. 3339 § 2 (Exh. A), 2019; Ord. 1208 § 20, 1981)