Chapter 2.16


2.16.010    Purpose.

2.16.020    Creation of land use hearing examiner.

2.16.030    Appointment and term.

2.16.040    Qualifications.

2.16.050    Compensation.

2.16.060    Hearing examiner pro tempore and/or deputy examiner.

2.16.070    Freedom from improper influence.

2.16.080    Conflict of interest.

2.16.090    Powers.

2.16.100    Applications.

2.16.110    Application procedure.

2.16.120    Appeal procedure.

2.16.130    Appeal procedure—Administrative enforcement.

2.16.140    Notice of appeal hearings— Administrative enforcement.

2.16.150    Report by planner.

2.16.160    Rules.

2.16.170    Public hearing.

2.16.180    Examiner’s decision.

2.16.190    Notice of examiner’s decision.

2.16.200    Reconsideration.

2.16.210    Appeal of examiner’s decision.

2.16.010 Purpose.

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

(a)    To separate the land use regulatory function from the land use planning process;

(b)    To ensure procedural due process and appearance of fairness in land use regulatory hearings; and

(c)    To provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters. (Ord. 1305 § 1 (part), 2009).

2.16.020 Creation of land use hearing examiner.

Pursuant to RCW 35A.63.170, as amended, the office of the city of Othello 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 or by other code provision. Unless the context requires otherwise, the term “examiner” as used herein shall include deputy examiners and examiners pro tempore. (Ord. 1305 § 1 (part), 2009).

2.16.030 Appointment and term.

The examiner shall be appointed by the mayor and shall serve at the pleasure of the mayor. (Ord. 1305 § 1 (part), 2009).

2.16.040 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 on regulatory enactments and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointed office or position in city government. (Ord. 1305 § 1 (part), 2009).

2.16.050 Compensation.

The examiner may be classified as a regular, part-time employee or the city may contract with the examiner for the performance of the duties described in this chapter. The compensation to be paid the examiner shall be that established in the annual city budget. (Ord. 1305 § 1 (part), 2009).

2.16.060 Hearing examiner pro tempore and/or deputy examiner.

The examiner pro tempore and/or deputy examiner 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. 1305 § 1 (part), 2009).

2.16.070 Freedom from improper influence.

No person, including city officials, elective or appointive, or any other person shall attempt to influence an examiner in any matter pending before him or her, except at a public hearing duly called for such purpose, or to interfere with an examiner in the performance of his or her duties in any other way; provided, that this section shall not prohibit the city attorney from rendering legal services to the examiner upon request. (Ord. 1305 § 1 (part), 2009).

2.16.080 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 in which the examiner has a direct or indirect personal interest that might interfere with his or her decision-making process, or concerning which the examiner has had substantial pre-hearing contacts with proponents or opponents. Any such actual or potential conflict shall be disclosed to the parties immediately upon discovery of such conflict and any hearing shall be conducted by a deputy or pro tempore examiner. (Ord. 1305 § 1 (part), 2009).

2.16.090 Powers.

(a)    The examiner shall receive and examine available information, conduct public hearings and prepare a record thereof, and enter written findings of fact and conclusions of law as provided for herein. The decision of the examiner on the following matters shall be final and conclusive unless such decision is appealed pursuant to Section 19.11.040;

(b)    The examiner shall be empowered to hear and decide any and all requests for a variance of the city zoning ordinances, pursuant to the limitations of RCW 35A.63.110(2);

(c)    The examiner shall be empowered to hear and decide any and all requests for a conditional use permit pursuant to the city zoning ordinances;

(d)    The examiner shall be empowered to hear and decide all appeals related to an environmental determination pursuant to the city ordinances or relating to Chapter 43.21C RCW;

(e)    The examiner shall be empowered to hear and decide any and all subdivisions, plat alterations and/or vacations, planned developments, rezones which are not of a general applicability and all Type III appeals;

(f)    The examiner shall be empowered to hear and decide any and all appeals of the actions of the zoning code enforcement and building officials of the city pursuant to the city zoning ordinances and administrative enforcement ordinances;

(g)    Appeals alleging an error in a decision of a city official in the interpretation or the enforcement of the zoning code or any other part of the development code;

(h)    Appeals alleging an error in a decision of a city official in taking an action on a short subdivision or binding site plan;

(i)    The examiner shall be empowered to hear and decide any other matters assigned to the examiner pursuant to this code. (Ord. 1305 § 1 (part), 2009).

2.16.100 Applications.

(a)    Applications for all matters to be heard by the examiner shall be presented to the planner, who shall process such application as provided in Chapter 19.05.

(b)    The mayor shall establish an application fee that recovers from applicants at least ninety percent of the costs of the examiner. (Ord. 1305 § 1 (part), 2009).

2.16.110 Application procedure.

A complete application shall comply with the requirements of Chapter 19.05. (Ord. 1305 § 1 (part), 2009).

2.16.120 Appeal procedure.

Administrative appeals, other than those pursuant to Section 2.16.130, shall be processed as provided in Section 19.11.030. (Ord. 1305 § 1 (part), 2009).

2.16.130 Appeal procedure—Administrative enforcement.

The procedures in this section apply only to appeals to the hearing examiner pursuant to Chapter 1.20 or 17.92 or any other chapter which adopts the process of either of those chapters by reference.

(a)    Written Appeal. Appeals shall be written and shall include the following:

(1)    The date of, the name of the person subject to and the address of the property or the location subject to the notice of violation and order to correct or cease activity from which the appeal is being taken.

(2)    The name and mailing address of the person appealing.

(3)    A brief statement of the specific action being appealed, together with any material facts claimed to support the contentions of the appellant.

(4)    A brief statement of the relief sought and the reasons why it is claimed the notice of violation and order to correct or cease activity was improperly issued.

(5)    The appeal fee established pursuant to Section 2.16.100.

(b)    Filing the Appeal. The appellant shall file an appeal with the planner within ten days after the date of the decision being appealed.

(c)    Rejection of Appeal. If an appeal is not properly filed because one or more of the required materials set forth in this section has not been submitted to the planner within the time limit established in this section, the planner has the authority to reject the appeal. In such instances, the planner shall inform the appellant in writing that the appeal has been rejected and include an explanation of its deficiency(ies).

(d)    Stay of Proceedings. If an appeal is properly filed within the time limit, the notice of violation and order to correct or cease activity shall be suspended, and no further enforcement action shall be taken unless the city files for accelerated review of the appeal because of an emergency situation. In the event a request for accelerated review is received, the hearing examiner will conduct a preliminary hearing to determine the hearing schedule and to enter any temporary order to protect the general welfare of the citizens of the city if deemed necessary.

(e)    Department Action. If an appeal is properly filed within the time limit, the planner shall:

(1)    Set the hearing on the appeal for a date that is within ninety days of the date the appeal was filed.

(2)    Give notice of the hearing as specified in Section 2.16.140.

(3)    Provide the examiner with the appropriate materials as set forth in Section 2.16.150.

(4)    The appellant and city attorney shall be provided copies of any material provided to the examiner if they have not previously been provided. (Ord. 1305 § 1 (part), 2009).

2.16.140 Notice of appeal hearings—Administrative enforcement.

Appeals of administrative enforcement actions pursuant to Section 2.16.130 shall be set for appeal hearings before the examiner pursuant to the procedures of this section and not Section 2.16.120. Notice of appeal hearings of administrative enforcement actions shall be as follows:

(a)    The hearing before the examiner shall be set within ninety days of the filing of the notice of appeal unless the examiner, for good cause shown, extends that time for hearing.

(b)    The planner, or the planner’s designee, shall obtain available hearing dates from the examiner and shall set a date for the appeal hearing within the time provided herein and shall mail such notice of hearing to the address provided by the appellant in the notice of appeal. The notice of hearing shall be mailed at least ten days prior to the date of the hearing.

(c)    Prior to the hearing date, the planner shall provide to the examiner copies of the notice of violation and order to correct or cease activity along with any report prepared by the enforcement official, the notice of appeal and any other materials submitted to the department for use in the appeal hearing. Copies of such materials shall be provided to the city attorney and the appellant if they have not previously been provided as shown in the city’s file. (Ord. 1305 § 1 (part), 2009).

2.16.150 Report by planner.

(a)    When an application has been set for public hearing, the planner shall coordinate and assemble the comments and recommendations of other city departments and governmental agencies having an interest in the subject application and shall prepare a staff report as described in Section 19.09.050.

(b)    When an appeal has been set for public hearing, the planner shall coordinate and assemble the staff report, minutes if any, the decision, a preliminary response to the appeal and other relevant material. At least seven calendar days prior to the scheduled hearing, those materials shall be filed with the hearing examiner. The project applicant, appellant, and other interested parties who have made requests to the planning department shall be notified in writing when these materials are filed and that they may be reviewed and/or copied at the expense of the persons wishing to do so. (Ord. 1305 § 1 (part), 2009).

2.16.160 Rules.

The examiner shall have the power to prescribe rules and regulations for the conduct of hearings under this chapter. Such rules may provide for the cross-examination of witnesses, the administration of oaths, and the preservation of order. (Ord. 1305 § 1 (part), 2009).

2.16.170 Public hearing.

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

(a)    Notice of the time and place of the public hearing shall be given as provided in Section 19.07.080.

(b)    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. 1305 § 1 (part), 2009).

2.16.180 Examiner’s decision.

When the examiner renders a decision, it shall comply with Chapter 19.09. (Ord. 1305 § 1 (part), 2009).

2.16.190 Notice of examiner’s decision.

Notice of the examiner’s decision shall be provided to parties of record as provided in Chapter 19.09 or 19.11 as appropriate. (Ord. 1305 § 1 (part), 2009).

2.16.200 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. 1305 § 1 (part), 2009).

2.16.210 Appeal of examiner’s decision.

Any party who feels aggrieved by the examiner’s decision may submit an appeal as provided in Chapter 19.11. (Ord. 1305 § 1 (part), 2009).