Chapter 18.82
HEARING EXAMINER Revised 11/23
18.82.000 Chapter Contents
Sections:
18.82.020 Purpose. Revised 11/23
18.82.040 Hearing examiner selection. Revised 11/23
18.82.060 Qualification and removal. Revised 11/23
18.82.080 Improper influence, conflict of interest, and appearance of fairness. Revised 11/23
18.82.100 Organization, rules. Revised 11/23
18.82.120 Authority. Revised 11/23
18.82.140 Applications. Revised 11/23
18.82.160 Effect of decision. Revised 11/23
18.82.180 Report of department. Revised 11/23
18.82.200 Public hearing. Revised 11/23
18.82.210 Hearing postponement. Revised 11/23
18.82.220 Hearing examiner’s decision. Revised 11/23
18.82.225 Reconsideration of hearing examiner decision. Revised 11/23
18.82.230 Clarification. Revised 11/23
18.82.235 Standard of review. Revised 11/23
18.82.240 Rezones - Recommendations. Revised 11/23
(Ord. 7364 §37, 2023).
18.82.020 Purpose Revised 11/23
The purpose of this Chapter is to:
A. Separate the land use regulatory function from the land use planning process.
B. Ensure procedural due process and appearance of fairness in land use regulatory hearings and decisions.
C. Provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters.
D. Provide for consistency and predictability in land use decision making and the application of policies and regulations adopted by the City.
E. Establish clear and understandable rules governing the land use decision-making process.
(Ord. 7364 §37, 2023; Ord. 5517 §1, 1995).
18.82.040 Hearing examiner selection Revised 11/23
A. The City Council shall select the Hearing Examiner. At least once every four years, the City Council will conduct a selection process for the Olympia Hearing Examiner. The selection process will be conducted as deemed appropriate by the City Council.
B. The Hearing Examiner may be retained on a professional service contract for a term and on conditions determined appropriate by the Council. The Hearing Examiner contract may provide that the Examiner may retain the services of officials to hold hearings as are needed to render aid and advice regarding technical or specialized issues that may be presented to the Examiner. Said contract may also provide for Hearing Examiner(s) pro tem to serve in the absence of the Hearing Examiner on such terms and conditions deemed appropriate by the Council.
(Ord. 7364 §37, 2023; Ord. 7322 §1, 2022; Ord. 7187 §3, 2019; Ord. 5570 §36, 1995; Ord. 5517 §1, 1995).
18.82.060 Qualification and removal Revised 11/23
Hearing Examiners are 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 on regulatory enactments and to discharge the other functions conferred upon them. Hearing Examiners may hold no other elective or appointive office or position with the City of Olympia. A Hearing Examiner may be removed from office for cause by majority vote of the Council as recommended by the Joint Committee.
(Ord. 7364 §37, 2023; Ord. 5517 §1, 1995).
18.82.080 Improper influence, conflict of interest and appearance of fairness Revised 11/23
A. No City official, elective or appointive, may attempt to influence the Hearing Examiner in any matter officially before the Hearing Examiner so as to constitute misconduct of a public office under RCW 42.20 or a violation of the Appearance of Fairness Doctrine. No member of the Council may participate in any proceeding on appeal from a Hearing Examiner’s decision if to do so would constitute a conflict of interest or violation of the Appearance of Fairness Doctrine.
B. The Hearing Examiner shall conduct all proceedings in a manner to avoid conflicts of interest or other misconduct and to avoid violations of the Appearance of Fairness Doctrine. If such conflicts or violations cannot be avoided in a particular case, the Hearing Examiner shall assign a Hearing Examiner pro tem to act in the Hearing Examiner’s absence.
(Ord. 7364 §37, 2023; Ord. 7187 §3, 2019; Ord. 5517 §1, 1995).
18.82.100 Organization, rules Revised 11/23
A. The Office of the Hearing Examiner is under the administrative supervision of the Hearing Examiner and is separate from the Department.
B. The Hearing Examiner may adopt rules for the scheduling and conduct of hearings and other procedural matters related to the duties of the Hearing Examiner’s office. Such rules may provide for cross examination of witnesses. Further, such rules must provide for recording of the proceedings and for compliance with the State, Federal, and City laws which may govern such a proceeding.
C. In rendering a decision, the Examiner is hereby authorized to take judicial notice of all duly-adopted rules, ordinances, standards, plans, regulations, and policies of the City of Olympia and other public agencies.
(Ord. 7364 §37, 2023; Ord. 7187 §3, 2019; Ord. 5570 §36, 1995; Ord. 5517 §1, 1995).
18.82.120 Authority Revised 11/23
The following cases are within the jurisdiction of the Hearing Examiner under the terms and procedures of this Chapter.
A. Short plat modification, variance requests or appeals.
B. Shoreline development permits and permit rescissions.
C. Shoreline development variances.
D. Preliminary plat applications.
E. Preliminary plat approval extension requests.
F. Rezone and Master Planned Development applications.
G. Preliminary plat modification requests.
H. Planned residential developments.
I. Conditional use permits.
J. Zoning variances.
K. Appeals of zoning interpretations.
L. Administrative appeals.
M. Appeals of the requirements of the Engineering Design and Development Standards, including deviation request decisions made under Chapter 1 of such Standards.
N. Applications for density bonuses.
O. Removal of density bonus conditions.
P. Critical area reasonable use exception.
Q. Site plan and home occupation application referred by staff.
R. Preliminary short plat or binding site plan applications referred by staff.
S. Concept design review.
T. Detailed design review.
U. Building and grading permits.
V. Engineering and other construction permits.
W. Permits and other matters associated with and consolidated with applications for the above project approvals.
X. Appeals of Community Planning and Development Director’s denial or cancellation of a multi-family housing final certificate of tax exemption.
Y. Subdivision improvement deferral agreement.
Z. County homeless encampments.
AA. Appeals of Drainage Manual Administrator decisions.
BB. Development Agreements associated with a pending development permit application requiring Hearing Examiner review.
(Ord. 7364 §37, 2023; Ord. 7342 §3, 2022; Ord. 7110 §10, 2017; Ord. 6771 §2, 2011; Ord. 5718 §3, 1997; Ord. 5713 §2, 1997; Ord. 5570 §36, 1995; Ord. 5539 §19, 1995; Ord. 5517 §1, 1995).
18.82.140 Applications Revised 11/23
Applications for permits or approvals within the City of Olympia must be presented to the Department. The Department shall accept such applications only if applicable filing requirements are met. The Department, in coordination with the Hearing Examiner, is responsible for assigning a date for and assuring due notice of public hearing for each application, which date and notice must be in accordance with OMC 18.70.140, Notice of Hearing.
(Ord. 7364 §37, 2023; Ord. 5517 §1, 1995).
18.82.160 Effect of decision Revised 11/23
A. If any of the permits or approvals require or include a rezone or Master Planned Development, then the decision of the Hearing Examiner as to all such permits or approvals constitutes a recommendation to the City Council; otherwise, the decision of the Hearing Examiner is final, subject to appeal to the Council pursuant to OMC 18.70.170.
B. The Department may prescribe a reduced fee schedule for master applications reflecting cost savings realized through unified processing of more than one permit.
(Ord. 7364 §37, 2023; Ord. 6140 §37, 2001; Ord. 5539 §20, 1995; Ord. 5517 §1, 1995).
18.82.180 Report of department Revised 11/23
The Department shall coordinate and assemble the reviews of other City departments and governmental agencies having an interest in the subject application 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 Department shall file the report with the Hearing Examiner and shall mail copies of the report to the applicant and make copies available for public inspection.
(Ord. 7364 §37, 2023; Ord. 5517 §1, 1995).
18.82.200 Public hearing Revised 11/23
A. Prior to rendering a decision or recommendation on any application, the Hearing Examiner shall hold at least one public hearing thereon, except as otherwise provided for in this code. The Hearing Examiner shall give notice of the time and place of the public hearing as provided in OMC 18.70.140. If none is specifically set forth, such notice must be given at least ten days prior to such hearing per OMC 18.70.140. Such hearing may be held jointly with that of any other state or local agency so long as such joint hearing is not prohibited by statute, sufficient notice is given, and the necessary information to hold the hearing has been received.
(See RCW 36.70.110.)
B. For building or fire code appeals, the Hearing Examiner is authorized to appoint an official, an individual with appropriate professional experience and technical expertise, to hear such appeals and to prepare findings and conclusions for issuance by the Hearing Examiner.
(Ord. 7364 §37, 2023; Ord. 6886 §32, 2013; Ord. 5570 §36, 1995; Ord. 5517 §1, 1995).
18.82.210 Hearing postponement Revised 11/23
After written notice of the public hearing date has been mailed to interested parties, such hearing may not be postponed except for good cause and only with the consent of the Hearing Examiner. Any request for such postponement must be for a specific period and be submitted in writing to the Department and duly forwarded with the Director’s recommendation to the Examiner for consideration. If good cause is presented, the Examiner shall postpone such hearing to a date certain and shall order that all costs of new notice of such hearing be paid to the City by the party requesting that the hearing be postponed.
(Ord. 7364 §37, 2023; Ord. 5570 §36, 1995).
18.82.220 Hearing examiner’s decision Revised 11/23
A. Within 14 days of the conclusion of a hearing, unless a longer period is agreed to in writing by the applicant, the Hearing Examiner shall render a written decision which must include at least the following:
1. Findings based upon the record and conclusions therefrom which support the decision. Such findings and conclusions must address any and all specific issues raised by the staff, the applicant, or any party of record. Such findings and conclusions may also set forth the manner by which the decision would carry out and conform to the City’s or County’s Comprehensive Plan, other official policies and objectives, ordinances, land use regulatory enactments and, in the case of preliminary plats, in conformance to chapter 17.04 OMC. In lieu of original findings and conclusions regarding uncontested matters, the Examiner may adopt findings and conclusions recommended by the staff, the applicant, or any party of record.
2. A decision on the application, which may be to approve, deny, or approve with such conditions, modifications and restrictions as the Hearing Examiner finds necessary to make the application compatible with its environment, the Comprehensive Plan, other official policies, objectives, and land use regulatory enactments.
3. A statement that the decision is final.
B. The decision of the Hearing Examiner is limited to those issues timely raised on appeal. The Hearing Examiner may not reconsider or modify aspects of a project previously considered and settled by another final decision of the City. In exercising the powers granted herein, the Hearing Examiner may, in conformity with this title, reverse or affirm, wholly or in part, or may modify the order, requirements, decision or determination appealed, and may make such order, requirement, decision or determination as should be made, and, to that end, has all the powers of the officer from whom the appeal is being taken, insofar as the decision on the particular issue is concerned, and in making a determination the Hearing Examiner may hear any pertinent testimony and receive and consider any other evidence bearing on the case.
C. The City Manager, on behalf of the City, is authorized to appeal or seek review of a decision of the Hearing Examiner in Superior Court pursuant to the provisions of chapter 36.70C RCW and any other applicable legal authority.
(Ord. 7364 §37, 2023; Ord. 6514 §8, 2007; Ord. 5570 §36, 1995; Ord. 5539 §21, 1995; Ord. 5517 §1, 1995).
18.82.225 Reconsideration of hearing examiner decision Revised 11/23
Decisions of the hearing examiner may be reconsidered. Further, prior to issuing a decision, the Examiner may reconvene any hearing or continue any other proceeding in such manner as the Examiner deems appropriate to ensure a fair, timely, and reasoned decision.
A. After issuance of a final decision any party, including the Department of Community Planning and Development, may file a motion for reconsideration on an appeal to the Hearing Examiner in accordance with subsection (B) of this section. The moving party shall file such motion within 10 days of service of the final decision. The moving party shall file the original of the motion for reconsideration at the Community Planning and Development Permit Center and shall transmit a copy to the Olympia City Attorney’s Office. At the same time, the moving party shall serve copies of the motion on all parties of record. Within five days of filing the motion for reconsideration, a party with standing may file an answer to the motion for reconsideration without direction or request from the Hearing Examiner. The Hearing Examiner may require other parties to supply an answer. The party filing an answer to a motion for reconsideration shall serve such answer on all other parties of record.
B. A motion for reconsideration must be based on at least one of the following grounds:
1. Errors of procedure or misinterpretation of fact or law, material to the party seeking reconsideration;
2. Irregularity in the hearing before the Hearing Examiner by which such party was prevented from having a fair hearing; or
3. Clerical mistakes in the final decision and order.
C. In response to a motion for reconsideration, the Hearing Examiner may deny the motion, modify the decision, or reopen the hearing. A motion is deemed denied unless the Hearing Examiner takes action within 20 days of the filing of the motion for reconsideration. A Hearing Examiner order on a motion for reconsideration is not subject to a motion for reconsideration.
D. A decision in response to the petition for reconsideration constitutes a final decision and order for purposes of judicial review. The Hearing Examiner shall serve copies of the final decision and order on each party or the party’s attorney or other authorized representative of record, unless the decision is deemed denied following the 20-day time frame set forth in Subsection C of this Section.
E. The time for an appeal to court does not commence until disposition of the motion for reconsideration. If the Hearing Examiner takes no action under subsection (C) of this section, the motion for reconsideration is deemed disposed at the end of the 20-day period. The filing of a motion for reconsideration is not a prerequisite for seeking judicial review.
(Ord. 7364 §37, 2023).
18.82.230 Clarification of hearing examiner decision Revised 11/23
A. Any interested party believing that a decision of the Hearing Examiner is ambiguous, vague, or internally inconsistent may request clarification of the decision by the Examiner. A party requesting clarification shall submit the request to the Department with the applicable fee and shall set forth the specific provision requiring additional clarity. The Department shall forward such request to the Examiner. Upon receipt of such a request, the Hearing Examiner may take action as the Examiner deems appropriate to the circumstances.
B. A request for clarification does not provide an opportunity for reconsideration of a decision nor for introduction of new evidence. Except as ordered by the Examiner, the filing of a request for clarification does not toll any appeal period or delay issuance of any permit.
C. When the Examiner determines that a clarification is in order, the Examiner may issue a supplemental or clarified decision. As deemed appropriate by the Examiner, the Examiner may order that the supplemental or clarified decision be subject to appropriate notice and an opportunity for appeal.
(Ord. 7364 §37, 2023).
18.82.235 Standard of Review Revised 11/23
In reviewing a decision including a recommendation of the Design Review Board, the Examiner shall give substantial weight to the recommendation of the Board. With regard to decisions of City staff, the Examiner shall accord due deference to the expertise and experience of the staff rendering such decision. The Examiner may only grant the relief requested by an appellant upon finding that the appellant has established that:
1. the staff engaged in unlawful procedures or failed to follow a prescribed procedure;
2. the staff’s decision was an erroneous interpretation of the law;
3. the decision is not supported by substantial evidence within the context of the whole record;
4. the decision is a clearly erroneous application of the law to the facts;
5. the decision is outside the authority or jurisdiction of the decision-maker;
6. the decision violates the constitutional rights of the party seeking relief, or
7. the decision is clearly in conflict with the City’s adopted plans, policies or ordinances.
(Ord. 7364 §37, 2023).
18.82.240 Rezones – Recommendations Revised 11/23
The Hearing Examiner shall make any decision regarding a rezone, a Master Plan Development, or a development agreement associated with a pending development permit application requiring Hearing Examiner review, with or without conditions, in the form of a recommendation to the City Council. The City Council shall consider such recommendation at a regular public meeting. In the alternative, the Council may consider the recommendation at a public hearing with notice given as provided by this Chapter. In either case, the scope of Council review is as provided in Chapter 18.53 OMC and OMC 18.70.050 or 18.70.190. The evidence, record, and arguments before the Council are limited solely to those brought before the Hearing Examiner. A copy of documents will be provided to the Council by paper or electronically. A copy of arguments will be presented to the Council or provided electronically. No new evidence, record, or arguments of any type are allowed before Council. The staff report, recordings if any, and attachments, including those on the internet, to Council will solely provide the evidence, record, and argument that were presented to the City Hearing Examiner on the proposed rezone that does not require a Comprehensive Plan amendment.
(Ord. 7364 §37, 2023; Ord. 7342 §4, 2022; Ord. 7013 §5, 2016; Ord. 6140 §38, 2001; Ord. 5570 §36, 1995; Ord. 5539 §22, 1995; Ord. 5517 §1, 1995).