Chapter 3.40


3.40.010    Established.

3.40.020    Purpose – Function and jurisdiction.

3.40.030    Appointment and qualifications.

3.40.035    Pro tem hearing examiners.

3.40.040    Hearing examiner – Conflict of interest and freedom from improper influence.

3.40.050    Dismissal of untimely appeals.

3.40.060    Consolidation of hearings for consolidated project permit process.

3.40.070    Prehearing conference on appeals.

3.40.080    Hearings.

3.40.090    Hearing examiner findings.

3.40.100    Written decision.

3.40.110    Reconsideration of final decision.

3.40.010 Established.

There is established the office of hearing examiner. (Ord. 17C-12 § 1; added during 1980 codification).

3.40.020 Purpose – Function and jurisdiction.

A. The hearing examiner will hear and decide upon applications and appeals as designated in this code.

B. The hearing examiner’s decision may be to:

1. Grant or deny the application or appeal; or

2. Grant the application or appeal with such conditions, modifications, and restrictions as the hearing examiner finds necessary to make the application or appeal compatible with the environment and carry out applicable state laws and regulations, including Chapter 43.21C RCW and the regulations, policies, objectives, and goals of the comprehensive plan, the Mercer Island City Code, and other official laws, policies and objectives of the city of Mercer Island; or

3. Remand the decision back to the decision maker for further consideration. (Ord. 17C-12 § 1; Ord. 02C-04 § 6; Ord. 96C-003 § 3; Ord. A-75 § 6, 1989; added during 1980 codification).

3.40.030 Appointment and qualifications.

The city manager shall appoint the hearing examiner for an indefinite term. The hearing examiner shall be appointed solely with regard to qualification for the duties of such office and shall have such training or experience as will qualify the hearing examiner to conduct administrative or quasi-judicial hearings on matters assigned to the hearing examiner under this code. The hearing examiner shall hold no other appointive or elective public office or position in the city government except as provided in this chapter. The hearing examiner shall serve at the pleasure of the city manager. (Ord. 17C-12 § 1; added during 1980 codification).

3.40.035 Pro tem hearing examiners.

The city manager may appoint qualified persons having the qualifications set forth in MICC 3.40.030 to serve as hearing examiner pro tempore, as needed, to expeditiously hear pending applications and appeals. (Ord. 17C-12 § 1).

3.40.040 Hearing examiner – Conflict of interest and freedom from improper influence.

A. The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing examiner has direct or indirect personal interest which might interfere with his or her decision making process. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict.

B. No council member, city official or any other person shall attempt to influence or in any way interfere with the hearing examiner in the performance of his or her designated duties. (Ord. 17C-12 § 1; added during 1980 codification).

3.40.050 Dismissal of untimely appeals.

On its own motion or on the motion of a party, the hearing examiner shall dismiss an appeal for untimeliness or lack of jurisdiction. (Ord. 17C-12 § 1).

3.40.060 Consolidation of hearings for consolidated project permit process.

Whenever a project application is reviewed under a consolidated project review process that includes more than one city permit, approval, or determination for which an open, or closed, record hearing before the hearing examiner is required or for which an appeal is otherwise provided, the hearings and any such appeals shall be consolidated into a single proceeding before the hearing examiner to the extent permitted by law. (Ord. 17C-12 § 1).

3.40.070 Prehearing conference on appeals.

A. An appeal prehearing conference may be ordered by the hearing examiner pursuant to this chapter upon motion by a party or “sua sponte” by the hearing examiner. The purpose of a prehearing conference shall be to identify, to the extent possible, the facts in dispute, issues, laws, parties, and witnesses in the appeal. In addition the prehearing conference is intended to establish a time line for the presentation of the appeal.

B. Any party who does not attend the prehearing conference, or anyone who becomes a party of record after notice of the prehearing conference has been sent to the parties, may nevertheless present testimony and evidence to the examiner at the hearing if the examiner determines that allowing the presentation will not prejudice the rights of the other parties. (Ord. 17C-12 § 1).

3.40.080 Hearings.

A. Before rendering a decision on any application or appeal, the hearing examiner shall hold at least one open, or closed, record hearing as applicable thereon.

B. The hearing examiner shall adopt rules of procedure for conduct of the hearing.

C. The city shall make an electronic sound or video recording with sound of the hearing.

D. Notification of the time and place of the hearing shall be given as provided in the ordinance governing the application. If none is specifically set forth, such notice shall be given as follows:

1. Published and posted notice at least 15 days prior to an open record predecision hearing and 15 days prior to an open record or closed record appeal hearing; and

2. Mailed notice to all parties of record at least 15 days prior to an open record predecision hearing and 15 days prior to an open record or closed record appeal hearing. (Ord. 17C-12 § 1).

3.40.090 Hearing examiner findings.

When the hearing examiner renders a decision, he or she shall make and enter findings of fact and conclusions from the record that support the decision. Said findings and conclusions shall set forth and demonstrate the manner in which the decision or recommendation is consistent with, carries out, and helps implement applicable state laws and regulations and the regulations, policies, objectives, and goals of the comprehensive plan, the Mercer Island City Code, and other official laws, policies, and objectives of the city of Mercer Island as applicable. (Ord. 17C-12 § 1).

3.40.100 Written decision.

Within 14 days of the conclusion of a hearing, the hearing examiner shall render a written decision to the city. The hearing examiner’s decision shall identify the applicant and/or the owner by name and address, and the project file or permit number, if applicable.

Any judicial appeal of the hearing examiner’s decision shall be filed in King County superior court pursuant to Chapter 36.70C RCW, the Land Use Petition Act (“LUPA”). The land use petition must be filed within 21 days of the issuance of the hearing examiner’s decision. (Ord. 17C-12 § 1).

3.40.110 Reconsideration of final decision.

A. Any final decision by the hearing examiner may be reconsidered by the hearing examiner, provided a request for reconsideration by a party of record is received within 10 days of the date of the decision by the hearing examiner, if:

1. The decision was based in whole or in part on erroneous facts or information;

2. The decision when taken failed to comply with existing laws or regulations applicable thereto; or

3. An error of procedure occurred that prevented consideration of the interests of persons directly affected by the decision.

B. The hearing examiner shall reconsider a final decision based upon the above criteria. The hearing examiner shall issue a decision on the request for reconsideration within 14 days of receiving a request for reconsideration, denying the request or correcting the decision as the examiner determines necessary. (Ord. 17C-12 § 1).