Chapter 2.54
OFFICE OF THE HEARING EXAMINER

Sections:

2.54.005    Office established.

2.54.010    Purpose.

2.54.015    Hearings on assessment rolls – Chapter inapplicable.

2.54.020    Definitions.

2.54.030    Selection.

2.54.040    Qualification and removal.

2.54.050    Improper influence, conflict of interest and appearance of fairness.

2.54.060    Organization, rules.

2.54.070    Consideration of land use regulatory cases.

2.54.080    Applications.

2.54.090    Report of department.

2.54.100    Public hearing.

2.54.110    Examiner’s decision.

2.54.120    Rezones.

2.54.130    Deleted.

2.54.140    Reconsideration by the hearing examiner.

2.54.150    Appeal of examiner’s decision.

2.54.160    Transcripts.

2.54.170    Appellate examiner review.

2.54.005 Office established.

There is established an office of hearing examiner whose functions and duties are hereafter established. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.010 Purpose.

The purpose of the office of hearing examiner is to:

(1) Separate the land use regulatory function from the land use planning process;

(2) Ensure procedural due process and appearance of fairness in land use regulatory hearings and decisions;

(3) Provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters;

(4) Provide for consistency and predictability in land use decision-making and the application of policies and regulations adopted by the city;

(5) Establish clear and understandable rules governing the land use decision-making process. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.015 Hearings on assessment rolls – Chapter inapplicable.

The provisions of this chapter shall be inapplicable to public hearings and delegated hearing examiners for the purpose of considering final assessment rolls and individual assessments on property within local improvement districts. The procedures and conduct of local improvement district assessment roll hearings by a hearing examiner shall be in accordance with the provisions set forth in PMC 17.28.005. (Ord. 2657 § 1, 2000; Ord. 2590 § 1, 1999).

2.54.020 Definitions.

(1) “Applicant” means those applying to the city of Puyallup for approval of land uses that conform to the city’s goals, policies, plans and programs of development.

(2) “City” means the city of Puyallup, Washington.

(3) “Council” means the Puyallup city council.

(4) “Staff” means departments of the city of Puyallup, Washington.

(5) “Department” means city of Puyallup planning and community development department.

(6) “Examiner” means the regular hearing examiner of the city of Puyallup. “Appellate examiner” means the hearing examiner who reviews appeals of examiner decisions.

(7) “Ex parte communication” means written or oral communications not included in the public record and made outside of a public hearing.

(8) “Party of record” means:

(a) Person who testifies at a hearing;

(b) The applicant, developer or any of their agents;

(c) Person submitting written comments pertaining to the merits of a case prior to when the hearing examiner closes the record on the case;

(d) The city of Puyallup.

(9) “Record” means official document that records all public hearing proceedings with regard to a specified land use application. Such record will normally be by means of magnetic recording tape equipment and minutes. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.030 Selection.

The examiner and appellate examiner shall be selected by the city manager with the concurrence of the city council. The examiner and appellate examiner may be retained on a professional service contract for a term and on conditions determined appropriate by the council. Said contract may also provide for examiner(s) pro tem to serve in the absence of the examiner of such terms and conditions deemed appropriate by the council. The hearing examiner(s) pro tem shall be selected by the city manager with the concurrence of the city council. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.040 Qualification and removal.

Examiners and appellate 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 and appellate examiners shall hold no other elective or appointive office or position with the city of Puyallup. An examiner or appellate examiner may be removed from office by the city manager at will. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.050 Improper influence, conflict of interest and appearance of fairness.

No city official, elective or appointive, shall attempt to influence the examiner or appellate examiner in any matter officially before him so as to constitute misconduct of a public office under Chapter 42.20 RCW or a violation of the appearance of fairness doctrine. The examiner and appellate 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 examiner or appellate examiner shall assign an examiner pro tem to act in his absence. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.060 Organization, rules.

The office of the examiner and appellate examiner shall be under the administrative supervision of the examiner and shall be separate from the department. The examiner and appellate examiner shall be empowered to adopt rules for the scheduling and conduct of hearings and other procedural matters related to the duties of his/her office. Such rules may provide for cross examination of witnesses. Further, such rules shall provide for recording of the proceedings and for compliance with state, federal and city laws which may govern such a proceeding. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.070 Consideration of land use regulatory cases.

The following cases shall be within the jurisdiction of the examiner under the terms and procedures of this chapter:

(1) Short plat variance requests or appeals;

(2) Shoreline substantial development, conditional use permits, shoreline permit rescissions and appeals of administrative interpretations and statements of exemption related to the Puyallup Shoreline Master Program (SMP);

(3) Shoreline development variances;

(4) Preliminary major plat applications;

(5) Rezone applications;

(6) Preliminary plat modification requests;

(7) Planned residential developments;

(8) Planned commercial developments;

(9) Conditional use permits;

(10) Variances;

(11) Appeals of zoning code interpretations;

(12) Interpretation of zoning boundaries;

(13) Appeals of administrative decisions;

(14) State Environmental Policy Act (SEPA) appeals;

(15) Public works – appeals of administrative decisions regarding alternative methods requests related to the City Standards for Public Works Engineering and Construction Manual;

(16) Public works – appeals of administrative interpretation of Flood Insurance Rate Map (FIRM);

(17) Public works – appeals of administrative decisions regarding alternative methods requests related to clearing, filling, and grading criteria;

(18) Public works – appeals of administrative decisions regarding alternative methods requests related to storm water management criteria;

(19) Appeals of administrative decisions regarding building permits;

(20) Binding site plan applications;

(21) Appeals of permit decisions related to heritage tree applications;

(22) Appeals of decisions made by design review and historic preservation board (DRHPB) in relation to design review cases (as outlined by PMC 2.29.070). (Ord. 3119 § 3, 2016; Ord. 3031 § 1, 2013; Ord. 2986 § 11, 2011; Ord. 2657 § 1, 2000; Ord. 2317 § 1, 1992; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.080 Applications.

Applications for permits or approvals within the city of Puyallup shall be presented to the department. The applicant has the responsibility for justification of the requested application based upon the criteria established for that decision. An application shall be considered complete when all applicable filing requirements are met, appropriate fees have been paid, and a determination of completeness has been issued by the department pursuant to PMC 20.11.006.

The department may prescribe a reduced fee schedule for master applications reflecting cost savings realized through unified processing of more than one permit. (Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.090 Report of department.

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, conclusions and 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 made available for public inspection. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.100 Public hearing.

Prior to rendering a decision or recommendation on any application, the examiner shall hold no more than one open record public hearing thereon. The department shall, in coordination with the examiner, be responsible for assigning a date for and assuring due notice of public hearing for each application. 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 10 days prior to such hearing in the following manner:

(1) Notice mailed to property owners within a 300-foot radius of the property lines of the subject site;

(2) Notice published in the official newspaper of record for the city of Puyallup;

(3) Written notice(s) posted in the immediate vicinity of the subject site. (Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.110 Examiner’s decision.

Within 10 business days of the conclusion of a hearing, unless a longer period is agreed to in writing by the applicant, the examiner shall render a written decision which shall include at least the following:

(1) Findings based upon the record and conclusions therefrom which support the decision. Such findings and conclusions shall also set forth the manner by which the decision would carry out and conform to the city’s comprehensive plan, other official policies and objectives, ordinances, land use regulatory enactments and, in the case of preliminary plats, in conformance to PMC Title 19.

(2) A decision on the application which may be to grant, deny, or grant with such conditions, modifications and restrictions as the examiner finds necessary to make the application compatible with its environment, the comprehensive plan, other official policies and objectives, and land use regulatory enactments.

(3) A statement that the decision will become final in 15 business days subject to options for review and appeal available under PMC 2.54.150. If any of the permits or approvals require city council action per this code, then the decision of the examiner as to all such permits or approvals shall constitute a recommendation to the city council; otherwise, the decision of the examiner shall be final subject to options for review and appeal available under PMC 2.54.150. (Ord. 2657 § 1, 2000; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.120 Rezones.

Any decision of the examiner approving a rezone, with or without conditions, shall constitute a final decision, subject to adoption of an ordinance by the city council. The council shall not conduct further review or conduct a hearing on the examiner’s decision. A decision to approve a rezone becomes effective on the date of the council ordinance giving it effect. (Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.130 Preliminary plat – Recommendations.

Deleted by Ord. 2657. (Ord. 2475 § 1, 1996; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991).

2.54.140 Reconsideration by the hearing examiner.

Any party of record feeling that a decision of the examiner is based upon erroneous procedures, errors of law or of fact, error in judgment, or has discovered new evidence which could not be reasonably available at the open record public hearing, may make a written request to the examiner, filed with the community development director, for reconsideration by the examiner within eight business days of the date the decision is rendered. The director shall forward the request for reconsideration to the examiner within three business days. The(se) request(s) shall set forth the specific errors or new information relied upon by such appellant, and the examiner, after review of the request(s) and the record, may:

(1) Affirm in writing the previous decision;

(2) Reopen the record and public hearing process;

(3) Take further action as he/she deems proper.

The filing of a request for reconsideration by the hearing examiner shall effectively stay the appeal period until the examiner takes further action. Such action shall occur within 10 business days of the date of filing a request for reconsideration. (Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991. Formerly 2.54.150).

2.54.150 Appeal of examiner’s decision.

Any party of record feeling that the decision of the examiner contains substantial error, was materially affected by irregularities in procedure, is unsupported by substantial evidence in the record or is in conflict with the city’s adopted plans, policies and ordinances may request review of any land use regulatory decision identified in PMC 2.54.070 by filing a petition for review with the planning director for the purpose of appellate examiner review of the action taken by the examiner. The petition for review shall be based solely upon the record from the examiner action. The burden of proof for justification of grounds for such petition for review shall be upon the petitioner.

(1) Petition for Review. Petitions for appellate examiner review of a decision by the hearing examiner shall be submitted to the office of the planning director within 15 business days of the date a final decision is rendered, and shall include:

(a) A reference to the application and decision sought to be reviewed, including the date the decision was rendered;

(b) A statement of the alleged errors in fact or in procedure;

(c) A statement of the petitioner’s standing as a party of record;

(d) A payment of fee, as established by resolution, to cover costs associated with review.

Within 30 calendar days of receipt of a valid petition for review, the planning director shall forward the petition for review, a written statement both from the applicant, if different from the petitioner, and the city based solely upon the examiner record and the complete examiner record on the project, including a transcript pursuant to PMC 2.54.160, to the appellate examiner. (Ord. 2781 § 1, 2004; Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2317 § 1, 1992; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991. Formerly 2.54.170).

2.54.160 Transcripts.

(1) Within 20 calendar days of receipt of a valid petition for review, the planning director shall provide each the petitioner and the applicant, if different from the petitioner, a copy of the complete transcript of the applicable examiner hearing(s). A copy shall also be available for public review at the community development office.

(2) The petitioner shall be responsible to satisfy all costs incurred for preparation of the transcript, including, but not limited to, the cost of generating the transcript of the examiner hearing(s) and the cost of the attendance of a court reporter at all appellate examiner hearings.

(3) Any other party requesting a copy of the transcript shall be charged the actual copy costs. (Ord. 2781 § 1, 2004; Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2317 § 1, 1992; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991. Formerly 2.54.180).

2.54.170 Appellate examiner review.

Upon receipt of a valid petition for review, transcript and all other material pertaining to the hearing examiner record on the project, the appellate examiner shall conduct a closed record review of the decision. Such review shall be upon the record established and made at the hearing held by the hearing examiner.

If the appellate examiner, after conducting this review, finds that: (1) the examiner’s finding or decision contains substantial error; (2) the examiner’s proceedings were materially affected by irregularities in procedure; (3) the examiner’s recommendation was unsupported by substantial evidence in view of the entire record as submitted; or (4) the examiner’s decision is in conflict with the city’s adopted plans, policies and ordinances, the appellate examiner may remand for further hearing before the hearing examiner, or may make findings based upon the record and conclusions therefrom and reverse the hearing examiner’s decision. In addition, the appellate examiner may make findings based upon the record and conclusions therefrom and choose to modify the examiner’s decision based on the above criteria. Further, any proposal may be continued to a time certain for additional city staff analysis and/or communication from the examiner if desired by the appellate examiner, before a final determination by the appellate examiner; provided, that final action should occur within 60 calendar days of the date the petition for review was filed; provided, however, that in the event new factual information is brought forward and the appellate hearing examiner concludes that such evidence was not available, nor could have been reasonably made available, at the hearing examiner hearing, the appellate hearing examiner may remand to hearing examiner for a re-opening of the record on that limited issue.

If the appellate examiner determines that there is no basis for the alleged errors set forth in the appeal, he/she shall affirm the decision of the hearing examiner. The decision of the appellate examiner shall be final unless within 21 days of the decision of the appellate examiner a valid land use petition is filed with the Superior Court of Washington for Pierce County seeking judicial review of the action taken, pursuant to the requirements of state law. If the court orders a copy of the record to be submitted, the petitioner shall prepare at the petitioners’ expense and submit a verbatim transcript of any hearings held on the matter. (Ord. 2781 § 1, 2004; Ord. 2657 § 1, 2000; Ord. 2475 § 1, 1996; Ord. 2278 § 1, 1991; Ord. 2268 § 1, 1991. Formerly 2.54.190).