Chapter 17.61


17.61.010    Title.

17.61.020    General objectives.

17.61.030    Office created.

17.61.040    Appointment and terms.

17.61.050    Compensation.

17.61.060    Qualifications.

17.61.070    Examiner pro-tem—Qualification and duties.

17.61.080    Hearing examiner—Conflict of interest and freedom from improper influence.

17.61.090    Attempts to interfere or improperly influence examiner prohibited.

17.61.100    Duties of the examiner.

17.61.110    Applications.

17.61.120    Report by staff.

17.61.130    Public hearing.

17.61.140    Examiner’s decision and recommendation—Findings required.

17.61.150    Reconsideration.

17.61.160    Appeal of examiner’s decision.

17.61.170    Council action.

17.61.180    Computation of time.

17.61.010 Title.

The ordinance codified in this chapter shall be hereinafter known as the “Land Use Hearing Examiner Ordinance” or the “Hearing Examiner Ordinance” and may be cited as such, and will be hereafter referred to as “this chapter.” (Ord. 837 § 1 (part), 2008: Ord. 493 § 1, 1990)

17.61.020 General objectives.

It is the general objective of this chapter to:

A.    Provide a single, efficient, integrated land use regulatory hearing system;

B.    Render land use regulatory decisions and recommendations to the city council;

C.    Provide a greater degree of due process in land use regulatory hearings;

D.    Separate the land use policy formulation and the land use policy administration processes.

(Ord. 837 § 1 (part), 2008: Ord. 493 § 2, 1990)

17.61.030 Office created.

The office of the land use hearing examiner, hereinafter referred to as “examiner,” is hereby created. The examiner shall interpret, review, and implement land use regulations as provided in this chapter and other ordinances. The term “examiner” shall likewise include the examiner pro-tem. (Ord. 837 § 1 (part), 2008: Ord. 493 § 3, 1990)

17.61.040 Appointment and terms.

The hearing examiner and examiner pro-tem shall be appointed by the mayor and confirmed by the city council. (Ord. 837 § 1 (part), 2008: Ord. 493 § 4, 1990)

17.61.050 Compensation.

The examiner and examiner pro-tem may, at the discretion of the city council, be classified as permanent part-time employees, or the city may contract with the examiner and examiner pro-tem for the performance of duties described herein. The compensation to be paid the examiner and examiner pro-tem shall be established by the city council. (Ord. 837 § 1 (part), 2008: Ord. 493 § 5, 1990)

17.61.060 Qualifications.

The examiner and examiner pro-tem shall be appointed solely with regard to their qualifications for the duties of the office which shall include, but not be limited to, persons with appropriate educational experience, such as urban planner, with at least five years’ experience, persons who have extensive experience in planning work in a responsible capacity, persons with legal experience, particularly where that experience is in the area of land use management or administrative law. (Ord. 837 § 1 (part), 2008: Ord. 493 § 6, 1990)

17.61.070 Examiner pro-tem—Qualification and duties.

The examiner pro-tem shall, in the event of the absence or the inability of the examiner to act, have all the duties and powers of the examiner. (Ord. 837 § 1 (part), 2008: Ord. 493 § 7, 1990)

17.61.080 Hearing examiner—Conflict of interest and freedom from improper influence.

A.    The examiner shall not conduct or participate in any hearing or decision in which the examiner has a direct or indirect personal interest which might exert such influence upon the examiner that 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. The hearing shall then be conducted by the examiner pro-tem.

B.    Participants in the land use regulatory process have the right, insofar as possible, to have the examiner free from personal interest or pre-hearing contracts on land use regulatory matters considered by him or her. It is recognized that there is a countervailing public right to free access to public officials on any matter. If such personal or pre-hearing interest contract impairs the examiner’s 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.

(Ord. 837 § 1 (part), 2008: Ord. 493 § 8, 1990)

17.61.090 Attempts to interfere or improperly influence examiner prohibited.

No councilmember, city official, or any other person shall attempt to interfere with, or improperly influence the examiner in the performance of his or her designated duties. (Ord. 837 § 1 (part), 2008: Ord. 493 § 9, 1990)

17.61.100 Duties of the examiner.

A.    Applications.

1.    The examiner shall receive and examine available information, conduct public hearings, prepare a record thereof, and enter findings of fact and conclusions based upon those facts, which conclusions shall represent the final action on the application, unless appealed as herein below specified, for the following types of applications:

a.    Conditional use permits;

b.    Variances;

c.    Appeals of administrative short plats;

d.    Appeals from administrative determination of the city’s land use regulation codes;

e.    Application for any other land use regulatory permits which may be required by ordinance;

f.    Appeals from the SEPA determination of the responsible city official when such appeals are permitted by Chapter 19.04.

2.    The examiner shall receive and examine available information, conduct public hearings, prepare a record thereof and enter findings of fact and conclusions based upon those facts together with a recommendation to the city council, for the following applications:

a.    Planned unit developments;

b.    Site plans;

c.    Shoreline permits.

3.    The examiner shall conduct public hearings relative to possible revocation of any conditional use permit, and conduct such other hearings as the council may from time to time deem appropriate.

B.    Recommendation or Decision.

1.    The examiner’s recommendation or decision may be to grant or deny the application, or the examiner may recommend or require of the applicant such conditions, modifications and restrictions as the examiner finds necessary to make the application compatible with its environment and carry out the objectives and goals of the comprehensive plan, the zoning code, the subdivision code, and other codes and ordinances of the city. Conditions, modifications and restrictions which may be imposed are, but are not limited to, additional setbacks, screenings in the form of landscaping and fencing, covenants, public works-type improvements, easements and dedications of additional road rights-of-way; performance bonds may be required to ensure compliance with conditions, modifications and restrictions.

2.    In regard to applications for rezone, preliminary plat approval and PUDs, the examiner’s findings and conclusions shall be submitted to the city council, which shall have the final authority to act on such applications. The hearing by the examiner shall constitute the hearing by the city council.

(Ord. 837 § 1 (part), 2008: Ord. 808 § 8, 2006: Ord. 741 § 1, 2002; Ord. 493 § 10, 1990)

17.61.110 Applications.

Applications for all matters to be heard by the examiner shall be presented to the city planner. When it is found an application meets the final requirements, it shall be accepted. The city planner shall be responsible for assigning a date of public hearing for each application, which date shall not be more than forty-five days after the applicant has complied with all of the requirements and furnished all necessary data. (Ord. 837 § 1 (part), 2008: Ord. 611, 1997; Ord. 493 § 11, 1990)

17.61.120 Report by staff.

When such application has been set for public hearing, the city planner shall coordinate and assemble the comments and recommendations of the city departments and governmental agencies having an interest in the subject application and shall prepare a report summarizing the factors involved and the city staff’s findings and supportive 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 shall be made available for use by an interested party for the cost of reproduction. (Ord. 837 § 1 (part), 2008: Ord. 611, 1997; Ord. 493 § 12, 1990)

17.61.130 Public hearing.

Before rendering a decision or recommendation on any application, the examiner shall hold at least one public hearing thereon.

Notice of the time and place of the public hearing shall be given as provided in the ordinance governing the application. If none is specifically set forth, such notice shall be given at least ten days prior to such hearing.

The examiner shall have the power to prescribe rules and regulations for the conduct of hearings under this chapter and also to administer oaths, and preserve order. (Ord. 837 § 1 (part), 2008: Ord. 493 § 13, 1990)

17.61.140 Examiner’s decision and recommendation—Findings required.

A.    When the examiner renders a decision or recommendation, the examiner shall make and enter written findings from the record and conclusions therefrom which support such decision, which decision shall be rendered by the tenth day following the conclusion of the hearing. A copy of such decision including findings and conclusions shall be transmitted by certified mail, return receipt requested, to the applicant and other parties of record requesting the same.

B.    In the case of applications requiring council approval, the examiner shall file a decision with the city council at the expiration of the period provided for a re-hearing or on the tenth day following the conclusion of a re-hearing, if one is conducted.

(Ord. 837 § 1 (part), 2008: Ord. 493 § 14, 1990)

17.61.150 Reconsideration.

Any aggrieved person feeling that the decision of the examiner is based on erroneous procedures, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing, may make a written request for reconsideration by the examiner within ten days of the date the decision is rendered. This request shall set forth the specific errors or new information relied upon by such appellant, and the examiner may, after review of the record, take further action as he or she deems proper. (Ord. 837 § 1 (part), 2008: Ord. 493 § 15, 1990)

17.61.160 Appeal of examiner’s decision.

A.    Except as provided in subsection (D) of this section, any party who feels aggrieved by the examiner’s decision may submit an appeal in writing to the city planner within fourteen days from the date the final decision of the examiner is rendered, requesting a review of such decision.

B.    Such appeal shall be upon the record, established and made at the hearing held by the examiner. Whenever a decision of the examiner is reviewed by the city council pursuant to this section, other parties of record may submit written memoranda in support of their positions. In addition, the council shall allow each side no more than fifteen minutes of oral presentation. However, no new evidence or testimony shall be presented to the council during such oral presentation. The city council shall accept, modify or reject any findings or conclusions, or remand the decisions of the examiner for further hearing; provided, that any decision of the city council shall be based on the record of the hearing conducted by the examiner; however, the council may publicly request additional information of the appellant and the examiner at its discretion.

C.    Upon such written appeal being filed within the time period allotted and upon payment of fees as required, a review shall be held by the city council. Such review shall be held in accordance with appeal procedures adopted by the city council by resolution. If the examiner has recommended approval of the proposal, such recommendation shall be considered by the city council at the same time as the consideration of the appeal.

D.    The examiner’s decision on an appeal of a threshold determination or of the adequacy of an EIS may not be appealed to the city council; successive administrative appeals on these issues within the city are not allowed. A closed record appeal to the city council of any decision by the examiner relating to the city’s conditioning or denial of a proposal under authority of SEPA is allowed. If the hearing examiner’s decision or recommendation on the underlying governmental action is subject to a closed record appeal to or hearing before the city council pursuant to this section or Section 17.61.170, the appeal shall be consolidated with any appeal or hearing of the underlying governmental action.

E.    Further action by the examiner shall be within thirty days of the reconsideration request.

(Ord. 837 § 1 (part), 2008: Ord. 808 § 9, 2006: Ord. 611, 1997; Ord. 493 § 16, 1990)

17.61.170 Council action.

A.    Any application requiring action by the city council shall be taken by the adoption of a resolution or ordinance by the council. When taking any such final action, the council shall make and enter findings of fact from the record and conclusions therefrom which support its action. The city council may adopt all or portions of the examiner’s findings and conclusions.

B.    In the case of an ordinance for rezone of property, the ordinance shall not be placed on the council’s agenda until all conditions, restrictions, or modifications which may have been stipulated by the council have been accomplished or provisions for compliance made to the satisfaction of the council.

C.    The action of the council approving, modifying, or rejecting a decision of the examiner shall be final and conclusive. The only available appeal shall be to a court of competent jurisdiction under the Land Use Petition Act, Chapter 36.70C RCW.

(Ord. 837 § 1 (part), 2008: Ord. 808 § 10, 2006: Ord. 493 § 17, 1990)

17.61.180 Computation of time.

In computing any period of time prescribed or allowed by these rules, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050. (Ord. 837 § 1 (part), 2008: Ord. 493 § 19, 1990)