Chapter 2.36
LAND USE HEARINGS EXAMINER

Sections:

I. Hearings Examiner

2.36.010    Purpose.

2.36.020    Office created.

2.36.030    Appointment—Term.

2.36.040    Qualifications.

2.36.050    Deputy examiner—Qualifications and duties.

2.36.060    Removal.

2.36.070    Freedom from improper influence.

2.36.080    Conflict of interest.

2.36.090    Organization of office.

2.36.100    Rules.

2.36.110    Powers.

II. Permit Application Procedures

2.36.130    Applications.

2.36.140    Report by department of community development.

2.36.150    Hearing—Notice.

2.36.160    Evidence.

2.36.170    Examiner’s decision—Contents.

2.36.180    Examiner’s decision—Notice.

2.36.190    Examiner’s decision—Reconsideration.

2.36.200    Examiner’s decision—Appeal to city council.

2.36.210    Appeal—City council consideration.

2.36.220    Appeal—City council action.

I. Hearings Examiner

2.36.010 Purpose.

The purpose of this chapter is to provide the administrative land use regulatory system which will best satisfy the following basic needs:

A.    The need to separate the city’s land use regulatory function from its land use planning function;

B.    The need to ensure and expand the principles of fairness and due process in public hearings; and

C.    The need to provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making process for land use matters. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 1, 1981)

2.36.020 Office created.

Pursuant to Chapter 213, Laws of 1977, First Extraordinary Session, the office of hearings examiner, hereinafter referred to as examiner, is created. The examiner shall interpret, review and implement land use regulations as provided by this chapter or any other ordinance. Unless the context provides otherwise, the term “examiner” as used in this chapter shall include deputy examiners and examiners pro tem. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 2, 1981)

2.36.030 Appointment—Term.

The examiner and his/her deputy shall be appointed by the city councilmembers and for a term which shall initially expire one year following the date of original appointment and thereafter expire one year following the date of each reappointment. The city councilmembers may also, by professional service contract, appoint for terms and functions deemed appropriate by the council. (Ord. 1921-0518 (part), 2018; Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 3, 1981)

2.36.040 Qualifications.

The examiner shall be appointed solely with regard to qualifications for the duties of such office, shall have such training or experience as will qualify the examiner to conduct administrative or quasi-judicial hearings on land use regulatory codes and must have experience in city planning, and shall have knowledge or experience in one of the following areas: environmental science, law, architecture, public administration, administrative experience or economics. The examiner shall hold no other appointive or elective public office or position in city government. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 4, 1981)

2.36.050 Deputy examiner—Qualifications and duties.

The deputy shall, in the event of the absence or the inability of the examiner to act, have all the duties and powers of the examiner. The deputy may also serve in other capacities as an employee of the city; however, the deputy should have such training or experience as will qualify such person to conduct administrative or quasi-judicial hearings on land use. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 5, 1981)

2.36.060 Removal.

Any examiner or deputy examiner may be removed from office for cause by the affirmative vote of a majority of the city councilmembers. (Ord. 1921-0518 (part), 2018; Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 6, 1981)

2.36.070 Freedom from improper influence.

No person shall attempt to influence an examiner in any matter pending before him/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 or county prosecuting attorney from rendering legal services to the examiner upon request. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 7, 1981)

2.36.080 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 concerning which the examiner has had pre-hearing contacts with proponents or opponents; nor, on appeal from or review of an examiner decision, shall any member of the city council who has such an interest or has had such contacts participate in the consideration thereof. (Ord. 1921-0518 (part), 2018; Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 8, 1981)

2.36.090 Organization of office.

The office of the examiner shall be under the administrative supervision of the examiner and shall be separate and not a part of the department of community development. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 9, 1981)

2.36.100 Rules.

The examiner shall have the power to prescribe rules for the scheduling and conduct of hearings and other procedural matter related to the duties of his or her office. Such rules may provide for cross-examination of witnesses. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 10, 1981)

2.36.110 Powers.

The examiner shall receive and examine available information, including environmental impact statements, conduct public hearings and prepare a record thereof, and enter findings and conclusions as provided for herein.

A.    The decision of the examiner on the following matters shall be final unless such decision is appealed to the city council pursuant to Section 2.36.210:

1.    Variance requests;

2.    Conditional and special use permits;

3.    Shoreline development permits and rescissions;

4.    Administrative zoning appeals;

5.    Appeals of administrative decisions made pursuant to Titles 18 (Building, Construction, Mobile/Manufactured Homes and Flood Damage Prevention) and 19 (Subdivisions);

6.    Preliminary plat approval extension requests;

7.    Applications for any other land use regulatory permits which may be required by ordinance;

8.    Binding site applications;

9.    Preliminary plat applications;

10.    Preliminary plat modification requests;

11.    A requirement to connect to city water rather than drilling an exempt well pursuant to Section 15.08.050;

12.    Impact fees levied pursuant to Title 17;

13.    Review of complaints asserting that a dwelling, structure, or premises is unfit for human habitation under Section 17.08.034;

14.    Planned unit development.

B.    The decision of the examiner on the following matters shall constitute a recommendation to the city councilmembers:

1.    Planned unit development for considering when the proposed land use in a mixed use PUD varies from the underlying zoning.

2.    Rezone applications; provided, that the hearings examiner shall conduct a public hearing on rezone applications and make a recommendation to the city council. The city council shall conduct a closed record review of the recommendation. (Ord. 1921-0518 (part), 2018; Ord. 1904-0717 § 1, 2017: Ord. 1848-0614 § 1, 2014: Ord. 1797-1211 § 2, 2011: Ord. 1750-0709 § 1 (part), 2009: Ord. 1733-1008 § 2, 2009: Ord. 1712-1207 § 2, 2008: Ord. 1702-0407 § 1, 2007: Ord. 1310-191 § 2 (part), 1991; Ord. 1049 § 11, 1981)

II. Permit Application Procedures

2.36.130 Applications.

Applications for permits or approvals within the jurisdiction of the examiner shall be presented to the department of community development. The department shall accept such applications only if applicable filing requirements are met. The department shall be responsible for assigning a date for and ensuring due notice of public hearing for each application, which date and notice shall be in accordance with the statute or ordinance governing the application. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 12, 1981)

2.36.140 Report by department of community development.

When such application has been set for public hearing, the department of community development shall coordinate and assemble the comments and recommendations of other city departments and other 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 report shall be filed with the examiner and copies thereof shall be mailed to the applicant and made available for public inspection. Copies thereof shall be provided to interested parties upon payment of reproduction costs. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 13, 1981)

2.36.150 Hearing—Notice.

Prior to rendering a decision 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 Section 2.36.130. At the commencement of the hearing, the examiner shall give all notice regarding the register provided for in Section 2.36.180. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 14, 1981)

2.36.160 Evidence.

A.    Burden of Proof. In each particular proceeding, the petitioner, applicant or the proponent of an individual petition or application shall have the burden of proof.

B.    Admissibility. The hearing generally will not be conducted according to technical rules relating to evidence and procedure. Any relevant evidence shall be admitted if it is the type which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The rules of privilege shall be effective to the extent recognized by law.

C.    Copies. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

D.    Official Notice. The examiner may take official notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within his or her specialized knowledge. When any recommendation or decision of the examiner rests, in whole or in part, upon the taking of official notice of a material fact not appearing in evidence of record, opportunity to disprove such notice as fact shall be granted any affected person making timely motion therefor. The examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding.

E.    Evidence Received Subsequent to the Hearing. If additional evidence is submitted after the public hearing, it will be considered only upon a showing of significant relevant and good cause for delay in its submission. All parties of record will be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 15, 1981)

2.36.170 Examiner’s decision—Contents.

Within ten working 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:

A.    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 zoning ordinance, other official policies and objectives, and land use regulatory enactments;

B.    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 zoning ordinance, other official policies and objectives, and land use regulatory enactments. Examples of the kinds of conditions, modifications and restrictions which may be imposed include, but are not limited to, additional setbacks, screenings in the form of fencing or landscaping, agreements concomitant to rezones, restrictive covenants, easements, dedications of additional rights-of-way, and performance bonds;

C.    A statement that either:

1.    The decision constitutes a recommendation to the city council together with the date, time and place for city council consideration thereof and the deadline for submitting written comments to the city council thereon as provided in Section 2.36.210, or

2.    The decision will become final in twenty calendar days unless appealed to the legislative body together with a description of the appeal procedure prescribed in Section 2.36.200. (Ord. 1921-0518 (part), 2018; Ord. 1754-1009 § 1, 2009: Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 16, 1981)

2.36.180 Examiner’s decision—Notice.

Not later than three working days following the rendering of a written decision, copies thereof shall be mailed to the applicant and to other parties of record in the case. “Parties of record” includes the applicant and all other persons who specifically request notice of decision by signing a register provided for such purpose at the public hearing. If the effect of the decision is a recommendation to the city council, the original thereof shall be transmitted to the city council. (Ord. 1921-0518 (part), 2018; Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 17, 1981)

2.36.190 Examiner’s decision—Reconsideration.

Any interested person may file a written request for reconsideration within ten days of the date of the examiner’s decision or recommendation by filing a fee as adopted by resolution with the department of community development. The request shall explicitly set forth alleged errors of procedure or fact. The examiner shall act within ten days after the date of the filing of request for reconsideration by either denying the request, issuing a revised recommendation or decision or calling for an additional public hearing. If an additional hearing is called for, notice of said hearing shall be mailed to all parties of record not less than seven days prior to the hearing date, and any final decision shall be stayed. (Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 18, 1981)

2.36.200 Examiner’s decision—Appeal to city council.

A.    The decision of the examiner as to those applications listed in Section 2.36.110 shall be final and conclusive unless no more than fifteen calendar days following rendering of such decision an appeal therefrom is filed with the department of community development by the applicant. Such appeal shall be in writing, shall contain a brief statement of the reason why error is assigned to the examiner’s decision, and shall be accompanied by a fee as adopted by resolution; provided, that such appeal fee shall not be charged to the city council or any other department or to other than the first appellant.

B.    The timely filing of an appeal shall stay the effective date of the examiner’s decision until such time as the appeal is adjudicated by the city council or is withdrawn.

C.    Within fifteen working days following the timely filing of an appeal, notice thereof and of the date, time and place for city council consideration shall be mailed to the applicant and to all other parties of record. Such notice shall additionally indicate the deadline for submittal of written comments as prescribed in Section 2.36.210. (Ord. 1921-0518 (part), 2018; Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 19, 1981)

2.36.210 Appeal—City council consideration.

An examiner’s decision which constitutes a recommendation or final decision which has been timely appealed pursuant to Section 2.36.200 shall come on for city council consideration in open public meeting no sooner than fourteen days from the date of the decision or recommendation. The city council shall consider the matter based upon the written record before the examiner, the examiner’s decision, the written appeal, if any, and any written comments received by the city council before closure of the council office on the next to last working day prior to the date set for the council’s consideration. (Ord. 1921-0518 (part), 2018; Ord. 1754-1009 § 2, 2009: Ord. 1750-0709 § 1 (part), 2009: Ord. 1049 § 20, 1981)

2.36.220 Appeal—City council action.

A.    The city council may accept, modify or reject the examiner’s decision, or any findings or conclusions therein, or may remand the decision to the examiner for further hearing. A decision by the city council to modify, reject or remand shall be supported by findings and conclusions.

B.    The action of the city council approving or rejecting a decision of the examiner shall be final and conclusive unless within twenty-one days from the date of such action an aggrieved party files a petition under the Land Use Petition Act (LUPA), Chapter 36.70C RCW; provided, that appeals from a decision to grant, deny or rescind a shoreline development permit shall be governed by the provisions of RCW 90.58.180. (Ord. 1921-0518 (part), 2018; Ord. 1750-0709 § 1 (part), 2009: Ord. 1365-293 § 1, 1993: Ord. 1049 § 21, 1981)