Chapter 2.120
HEARING EXAMINER

Sections:

2.120.010    Purpose, authority and legal effect of Hearing Examiner decision.

2.120.020    Hearing Examiner – Office created – Duties.

2.120.030    Appointment and term.

2.120.040    Qualifications.

2.120.050    Freedom from improper influence.

2.120.060    Conflict of interest.

2.120.070    Rules.

2.120.080    Powers.

2.120.090    Requests for remission and appeals.

2.120.100    Collection of costs and penalties.

2.120.110    Decisions.

2.120.120    Optional reconsideration by the Hearing Examiner of final legislative decisions.

2.120.130    Hearing Examiner’s decision final.

2.120.140    Appeal to the City Council.

2.120.150    Judicial review of decision.

2.120.010 Purpose, authority and legal effect of Hearing Examiner decision.

The purpose of this chapter is to establish a system for regulatory appeals hearings and open record hearings to help ensure procedural due process and appearance of fairness by holding such hearings before a neutral party, competent in the fields assigned and in procedural requirements.

The Hearing Examiner is authorized to conduct hearings on contested civil infractions and render final decisions on alleged violations of Chapters 6.05, 8.15, 8.20, 9.70, 10.10, 10.35 and 16.15 MTMC and such other contested civil code violations as authorized by ordinance. Further, the Hearing Examiner is authorized to conduct open record hearings and provide a final decision of the legislative body on the following:

A. Applications for conditional uses, variances, subdivisions, shoreline permits, secure community transition facilities or any other class of applications for or pertaining to development of land or land use, including but not limited to those permits or projects pursuant to MTMC 18.05.610, Decision and hearing matrix (with the exception of applications for site-specific rezones, preliminary plat approval and planned unit developments (PUDs), which shall be recommendations to the City Council for final decision).

B. Appeals of administrative decisions or determinations made by a City official or Department directors, including but not limited to critical area procedural provisions, MTMC 16.15.140.

C. Appeals of administrative decisions or determinations pursuant to Chapter 43.21C RCW.

Provided, however, the Hearing Examiner decision shall not be the final decision of the legislative body if the decision is specifically by ordinance or this chapter given the legal effect of a recommendation to the City Council; or an appeal to the City Council is provided for in City regulations or ordinance authorizing the permit or approval. Any appeal, if authorized, to the City Council shall be made pursuant to MTMC 2.120.140. (Ord. 2481 § 2, 2008; Ord. 2456 § 1, 2007; Ord. 2386 § 1, 2005; Ord. 2371 § 1, 2004; Ord. 2291 § 1, 2001).

2.120.020 Hearing Examiner – Office created – Duties.

The office of the Mountlake Terrace Hearing Examiner, hereinafter referred to as the Hearing Examiner, is hereby created. The Hearing Examiner shall interpret, review and render decisions on contested/appealed violations as provided by ordinance and may perform other quasi-judicial functions as provided for in MTMC 2.120.010 or by City ordinance. Unless the context requires otherwise, the term “Hearing Examiner” as used in this chapter shall include Deputy Examiners and Examiners Pro Tem. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.030 Appointment and term.

The selection of the Hearing Examiner(s) shall be initiated by a request for proposals from the City Manager’s office, followed by interviews of top candidates by City staff for recommendation to the City Council. Compensation for the services to be rendered by the Hearing Examiner(s) shall be negotiated through contract. The City Council, by majority vote, shall select a Hearing Examiner for appointment and approve the Hearing Examiner contract. The Hearing Examiner shall serve until the end of the term as identified in the contract, or until the appointment is revoked by majority vote of the City Council. The City Council may also appoint, and approve contracts for, Deputy Hearing Examiner(s) or Hearing Examiner(s) Pro Tem in the event of the Hearing Examiner(s)’ absence or inability to act. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.040 Qualifications.

The Hearing Examiner shall be appointed solely with regard to his/her qualifications for the duties of his/her office and will have such training and experience as will qualify him/her to conduct administrative or quasi-judicial hearings and to discharge other delegated functions; provided, however, the Hearing Examiner must be qualified to practice law in the State of Washington. Hearing Examiners shall hold no other elective or appointive office or position within the City of Mountlake Terrace. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.050 Freedom from improper influence.

No person, including City officials, elected or appointed, shall attempt to influence a Hearing Examiner in any matter pending before him or her, except at a public hearing duly called for such purpose, or to interfere with a Hearing Examiner in the performance of his/her duties in any other way; provided, that this section shall not prohibit the City Attorney from rendering legal service to the Hearing Examiner upon request. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.060 Conflict of interest.

The Hearing Examiner shall be subject to the same code of ethics as other appointed public officers in code cities, as set forth in RCW 35.42.020 and Chapter 42.23 RCW, as the same now exists or may hereafter be amended. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.070 Rules.

The Hearing Examiner shall have the power to prescribe rules for the scheduling and conduct of hearings and other procedural matters related to the duties of his/her office subject to the provisions herein. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.080 Powers.

The Hearing Examiner shall have the authority to:

A. Receive and examine available information.

B. Conduct open records hearings in accordance with Chapter 42.36 RCW, MTMC 2.120.010 and all other applicable laws, and to prepare a record thereof.

C. Administer oaths and affirmations.

D. Issue subpoenas upon the request of any party. When so required, the applicant for the subpoena shall show to the satisfaction of the Examiner the general relevance and reasonable scope of the evidence sought and examine witnesses; provided, that no person shall be compelled to divulge information which he/she could not be compelled to divulge in a court of law.

E. Regulate the course of the hearing.

F. Make and enter written findings of fact and conclusions to support his/her decisions.

G. At the Hearing Examiner’s discretion, hold conferences for the settlement or simplification of the issues.

H. Conduct discovery.

I. Dispose of procedural requests or similar matters.

J. Take official notice of matters of law or material facts.

K. Issue summary orders in supplementary proceedings.

L. Decide appeals, mitigation or contested hearings of civil penalties imposed and notice and orders and declarations issued pursuant to Chapters 6.05, 8.15, 8.20, 9.70, 10.10, 10.35 and 16.15 MTMC, and impose orders to enforce such decisions.

M. Decide requests to remit civil penalties imposed.

N. Consolidate hearings of appeals or requests to remit civil penalties when they cover the same occurrence or property.

1. Remission or Mitigation of Civil Penalties.

a. The Hearing Examiner shall uphold and not remit a civil penalty if the City shows by the preponderance of the evidence that the appellant is liable under the provision that was violated.

b. The appellant may assert as an affirmative defense that extraordinary circumstances, such as the presence of information or factors not considered in setting the original penalty, justify the remission or mitigation. If the appellant shows by preponderance of evidence that this is the case, the Hearing Examiner may remit a civil penalty. In no case shall the Hearing Examiner have the authority to remit or mitigate a civil penalty below the minimum penalty set by resolution or ordinance.

O. Take any other action authorized by or necessary to carry out this chapter.

The above authority may be exercised on all matters for which jurisdiction is assigned to the Hearing Examiner by City ordinance, code or other legal action of the City Council. (Ord. 2481 § 2, 2008; Ord. 2456 § 2, 2007; Ord. 2386 § 2, 2005; Ord. 2371 § 2, 2004; Ord. 2291 § 1, 2001).

2.120.090 Requests for remission and appeals.

A. Remission of Civil Penalties. Within 15 calendar days of the effective date of a notice and order, or other order that includes a civil penalty, the person incurring the penalty may appeal in writing to the Violation Bureau in the case of an alleged violation of Chapters 8.15, 8.20 and 10.10 MTMC for remission or mitigation of such civil penalty or contest the violation.

B. Appeal of Notice and Order or Declarations Issued. Within 15 calendar days of the effective date of a notice and order or declaration issued, the owner of the property for which the order was issued or any other person who is subject to the order may file an appeal of the order or declaration in writing to the Violation Bureau.

C. Within 10 days of receipt of the written request or appeal received by the Violation Bureau or Chief of Police as allowed by ordinance, the Violation Bureau or Chief of Police receiving the written request or appeal shall notify the Hearing Examiner, the owner of the property for which the order was issued, and any other person who appealed the order of the date, time and place of hearing. The notification of hearing shall be sent to the person who was issued the citation or to the owner of the property for which the order was issued and the person appealing the order, if different than the property owner, by certified mail with return receipt requested. The notices shall be mailed at least 10 days before the hearing date. A written declaration of mailing shall be made a part of the record declaring the date and time of mailing. The hearing shall be held within 60 days of receipt of the written request for a hearing unless all parties agree to another date. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.100 Collection of costs and penalties.

Any civil penalty, or cost imposed, assessed, or billed under this chapter, may be collected by any means authorized by this chapter or otherwise authorized by law. Under this chapter, the City is authorized to collect these penalties, fees, or costs by billing the responsible party, requesting payment by other legal means, turning the debt over to a collection agency, filing a civil lawsuit, or filing a lien as may be authorized by ordinance or state law. (Ord. 2481 § 2, 2008; Ord. 2291 § 1, 2001).

2.120.110 Decisions.

Decisions shall be rendered and transmitted in accordance with the requirements governing the application or appeal. Pursuant to RCW 36.70.970, Hearing Examiner decisions shall be in writing and shall include findings and conclusions, based on the record, to support the decision. The findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the City’s Comprehensive Plan, Zoning Code and development regulations, if applicable.

If an application is approved, the Hearing Examiner may attach conditions necessary to ensure compliance with the City’s Comprehensive Plan, Zoning Code and development regulations. Examples of conditions include, but are not limited to: additional setbacks, screening, restrictive covenants, notices to title, easements, dedications, rights-of-way, performance bonds and, when supported by the appropriate environmental review, reduction in the density on the parcel and other measures to mitigate adverse environmental impacts.

Each decision of the Hearing Examiner shall be rendered within 10 working days following conclusion of all testimony and hearings, unless a longer period is mutually agreed to in writing by the applicant and the Hearing Examiner. (Ord. 2481 § 2, 2008).

2.120.120 Optional reconsideration by the Hearing Examiner of final legislative decisions.

Any party of record as defined in MTMC 18.05.190, including the applicant, who believes that the decision of the Hearing Examiner is based on errors of procedure or fact may make a written request for review by the Hearing Examiner within 10 working days of the written decision. This request shall set forth the alleged errors and the Hearing Examiner may, after review of the record, take such further action as he/she deems proper and may render a revised decision. Only one request for reconsideration may be filed by any one person or party, even if the Hearing Examiner reverses or modifies his/her original decision, or changes the language in the decision originally rendered. A request for reconsideration shall extend the applicable time period for appeal to Snohomish County Superior Court by the length of time it takes to resolve the request for reconsideration. (Ord. 2481 § 2, 2008).

2.120.130 Hearing Examiner’s decision final.

The final action by the Hearing Examiner on any project permits and/or applications and/or an appeal of an administrative decision within his/her jurisdiction shall be deemed a final decision unless the decision is specifically pursuant to this chapter or by ordinance given the legal effect of a recommendation to the City Council. There are no closed record appeals to the City Council unless an appeal to the City Council is provided for in City code, regulations or ordinance authorizing the permit or approval. (Ord. 2481 § 2, 2008).

2.120.140 Appeal to the City Council.

An appeal, if authorized, to the City Council of a Hearing Examiner decision shall be a closed record appeal, and no new testimony and/or evidence shall be presented or considered, and only those individuals, organizations or corporations that are a party of record as defined in MTMC 18.05.190 shall be allowed to provide public comment in the form of legal argument.

A. Filing. Every appeal to the City Council shall be filed with the Principal Planner within 10 days after the date of the recommendation or decision of the matter being appealed.

B. Contents. The notice of appeal shall contain a concise statement identifying:

1. The name and address of the project or action to which the appeal applies.

2. The decision being appealed (specify).

3. The name and address of the appellant and his/her (or their) interest(s) in the matter.

4. The specific reasons why the appellant believes the decision to be wrong. The appellant shall bear the burden of proving the decision was in error.

5. The appellant’s desired outcome or changes to the decision.

6. The appeals fee.

The appeal shall be pursuant to applicable appeal procedures as set forth in the Administrative Procedure Act, Chapter 34.05 RCW. The City Council shall have the authority to accept or reject any findings or conclusions, or to remand the decision of the Hearing Examiner for further hearing on a specific matter of the record. The Hearing Examiner decision shall be upheld unless the City Council finds that the Hearing Examiner’s findings are not supported by substantial evidence on the record. (Ord. 2481 § 2, 2008).

2.120.150 Judicial review of decision.

Any court action to set aside, enjoin, review or otherwise challenge a final decision of the Hearing Examiner on the grounds of noncompliance with the provisions of the Mountlake Terrace Municipal Code shall be commenced within 21 days of the final action pursuant to RCW 36.70C.040(3) and in accordance with MTMC 18.05.570. (Ord. 2481 § 2, 2008).