Chapter 2.80
OFFICE OF HEARING EXAMINER

Sections:

2.80.010    Purpose.

2.80.020    Office of hearing examiner—Creation.

2.80.030    Qualifications.

2.80.040    Appointment.

2.80.050    Deputy hearing examiner.

2.80.060    Authority and duties.

2.80.070    Freedom from improper influence.

2.80.080    Conflict of interest.

2.80.090    Applications.

2.80.100    Public hearings.

2.80.110    Reports of departments.

2.80.120    Continuances.

2.80.130    Hearing examiner’s decision and recommendation.

2.80.135    Reconsideration.

2.80.140    Appeal of hearing examiner decision.

2.80.150    Annual report to the board of county commissioners.

2.80.160    Scheduling.

2.80.010 Purpose.

The purpose of this chapter is to provide an administrative land use regulatory system which will separate the county’s land use regulatory function from its land use legislative planning function; ensure and expand the principles of fairness and due process in public hearings; and to provide an efficient and effective land use regulatory system which integrates the public hearing and decision making processes for land use matters. (Ord. 2006-16 (part))

2.80.020 Office of hearing examiner—Creation.

The office of the hearing examiner is created by the board of county commissioners. The hearing examiner shall interpret, review and implement land use regulations, hear appeals from permits, decisions or determinations made by a county official as set forth in this chapter, and review and hear other matters as provided for in this code and other ordinances. The term “hearing examiner” shall likewise include the deputy hearing examiner. (Ord. 2006-16 (part))

2.80.030 Qualifications.

The Skamania County board of county commissioners shall appoint the hearing examiner solely with regard to their qualifications for the duties of their office and shall have such training and experience as will qualify them to conduct administrative or quasi-judicial hearings utilizing land use regulatory codes. The hearing examiner shall have expertise and experience in land use planning and land use/environmental law. The hearing examiner shall hold no other elective or appointive office or position in county government. (Ord. 2006-16 (part))

2.80.040 Appointment.

The hearing examiner shall be appointed by and serve at the pleasure of the board of county commissioners. This position will be a professional services contract position, reimbursement for which will be prescribed by the contract between the county and the hearings examiner. (Ord. 2006-16 (part))

2.80.050 Deputy hearing examiner.

The board of county commissioners may appoint one or more deputy hearing examiners. The deputy hearing examiner shall, in the event of the absence or the inability of the hearing examiner to act, have all the duties and powers of the hearing examiner. The deputy hearing examiner shall have such training or experiences as to satisfy Section 2.80.030. (Ord. 2006-16 (part))

2.80.060 Authority and duties.

A. The hearing examiner shall receive and examine available relevant information, including environmental documents, conduct public hearings, cause preparation of a record thereof, prepare and enter finding and conclusions based on those facts for the following:

1. Preliminary subdivisions as a final decision of the legislative body;

2. Amendments and/or alterations to subdivisions (preliminary and final plats);

3. Petitions for subdivision (plat) or short plat vacations;

4. Applications for shoreline management substantial development permits, variances, conditional use permits and nonconforming use permits pursuant to the shoreline management act and shoreline master program (Title 20);

5. Petitions for zoning map amendments under Section 21.18.040;

6. Petitions for comprehensive plan or subarea plan amendments under Section 21.18.070(C);

7. Applications for Title 21 variances and conditional use permits;

8. Requests for the alteration, expansion or replacement of a nonconforming use under Title 21;

9. Applications for critical area variances;

10. Appeals alleging an error in a decision of the community development director in the interpretation or the enforcement of violations of the zoning code or any other development regulation under the community development department jurisdiction;

11. Appeals alleging error in decisions by the community development director in taking action on a short plat;

12. Appeals alleging error in administrative decisions issued under Title 22 (National Scenic Area);

13. Board of health matters include, but are not limited to, adjudication or review of all health ordinances of the board of health, and the following specific matters:

a. Conduct adjudicative proceedings and appeals on matters prescribed by solid waste rules and regulations;

b. Conduct adjudicative proceedings and appeals on matters prescribed by sewage system rules and regulations, consistent with Chapters 43.70 and 34.05 RCW, and Chapter 246-10 WAC, as amended; and

c. Conduct food service sanitation appeals under H94-0304(6)(D) and WAC 246-215-220, as amended; and

d. Any such other quasi-judicial or appellate jurisdiction hereinafter created by adoption, application or amendment of said state and board of health regulations;

14. Any other matters as specifically assigned to the hearing examiner by the board of county commissioners or as prescribed by the Skamania County Code.

B. The decision of the hearing examiner on matters 5 and 6 in subsection (A) of this section shall be in the form of a recommendation to the board of county commissioners pursuant to Section 21.18.070. The decision of the hearing examiner on all other matters is final and conclusive, unless appealed pursuant to Section 2.80.140 of this chapter.

C. The hearing examiner’s decision shall be based upon the policies of the applicable comprehensive plan, shoreline master program, the standards set forth in the various development regulations of the county or any other applicable program adopted by the board of county commissioners. When acting upon any of the above specific applications or appeals, the hearing examiner may attach reasonable conditions found necessary to make the project compatible with its location and to carry out the goals and policies of the applicable comprehensive plan, shoreline master program, or other applicable plans or programs adopted by the board of county commissioners.

D. The hearing examiner shall conduct public hearings pursuant to Titles 8, 17, 18, 20, 21, 21A, 22 and 23 of this Code, and conduct such other hearings or meetings, as the board of county commissioners may from time to time deem appropriate. (Ord. 2014-03, 8-12-14; Ord. 2010-04, 5-11-10; Ord. 2006-16 (part))

2.80.070 Freedom from improper influence.

No person, including county officials, elective or appointive, shall attempt to influence the hearing examiner or deputy hearing examiner in any matter there before pending, except at a public hearing duly called for such purpose. No person, including county officials, elective or appointive, shall interfere with such hearing examiner in the performance of his or her duties in any other way, except that an official or employee of the county may, in the performance of official duties, provide information to a hearing examiner when such action is thereafter disclosed prior to the use of such information at public hearings or meetings. This section does not prohibit the prosecuting attorney from rendering legal services to a hearing examiner, when such services are not otherwise prohibited at law or by conflict. (Ord. 2006-16 (part))

2.80.080 Conflict of interest.

A. The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing examiner or the hearing examiner’s family members, business partners, former business partners, clients, or former clients has a direct or substantial financial interest.

B. The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing examiner is negotiating for or has an arrangement or understanding concerning possible partnership or employment.

C. The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing examiner has a direct or indirect personal interest that might exert such influence upon the hearing examiner that might interfere with his or her decision making process.

D. Participants in the land use regulatory process have the right, insofar as possible, to have the hearing examiner, (or deputy hearing examiner) free from personal interest or pre-hearing contacts on land use regulatory matters considered by them. It is recognized that there is a countervailing public right to free access to public officials on any matter. Therefore, the hearing examiner shall reveal any substantial interest or pre-hearing contact made with them concerning the proceeding, at the commencement of such proceeding. If such interest or contact impairs the hearing examiner’s ability to act on the matter, such person shall so state and shall abstain therefrom to the end so that the proceeding is fair and has the appearance of fairness.

E. Immediately after the announcement of any interest or pre-hearing contact, any person who objects to the interest or pre-hearing contact shall state the objection and any reasons supporting the objection. The failure to state such an objection at the time of announcement is deemed to be a waiver of the objection. Therefore, this objection cannot be raised for the first time at any subsequent time.

F. The hearing examiner or deputy hearing examiner, upon hearing an objection, shall personally decide whether the interest or contact will impair his or her ability to be fair and impartial, and shall hear the case or abstain accordingly. (Ord. 2006-16 (part))

2.80.090 Applications.

Applications for all matters to be heard by the hearing examiner shall be presented to the community development department, to be processed according to the applicable provisions of the code. The community development director, or the community development director’s designee, shall be responsible for assigning a date for the public hearing, and providing relevant public and adjacent property owner notices for each application as required. The hearing examiner may consider two or more applications relating to a single project concurrently, and the findings of fact, conclusions and decision on each application may be covered in one written decision. (Ord. 2010-04, 5-11-10; Ord. 2006-16 (part))

2.80.100 Public hearings.

A. Before rendering a decision on any application, the hearing 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 applicable county code governing the application.

B. The hearing examiner shall have the authority to prescribe rules and regulations for the conduct of hearings before the hearing examiner, and also to administer oaths and to preserve order. (Ord. 2006-16 (part))

2.80.110 Reports of departments.

When an application has been scheduled for a public hearing, the department responsible for the application shall coordinate and assemble the comments and recommendations of other county departments and governmental agencies having an interest in the application. The said department shall prepare a report summarizing the factors involved and the findings and recommendations of the department. At least ten 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 to any interested party at the cost of reproduction. (Ord. 2006-16 (part))

2.80.120 Continuances.

A. Once legal notice has been given, no matter shall be postponed over the objection of any interested party, except for good cause shown. Continuances may be granted at the discretion of the hearing examiner; provided, the interested parties in attendance shall be given an opportunity to testify prior to the continuance. The applicant shall pay the fee as determined by the board of county commissioners for any hearing postponed or continued by request of the applicants after legal notice has been published; provided, that this requirement shall not apply where the request is based on new information presented at the hearing.

B. The hearings examiner may continue or reopen proceedings for any good cause he or she deems reasonable and appropriate provided an order for such action is entered prior to the filing of the recommendation or decision.

C. If the hearing examiner determines at a hearing that there is a good cause to continue such proceeding and publicly specifies the date, time, and place, no further notice is required. When determination for a further hearing is made following the closing of a hearing on a given matter, all parties of record shall be provided not less than ten days notice of the date, time, place, and nature of the subsequent hearing. Such notice shall also be published in the county official newspaper in the same manner as required for an initial hearing. Whenever any hearing is continued, a notice of continuance shall be conspicuously posted immediately after the time of the continuance on or near the door of the place where the hearing was being held. When a hearing is continued, the resulting continued hearing is a regular hearing for all purposes unless specifically limited by the order granting continuance. (Ord. 2006-16 (part))

2.80.130 Hearing examiner’s decision and recommendation.

A. When the hearing examiner renders a decision or recommendation, he or she shall make and enter written findings of fact from the record and conclusions therefrom, which support such decision. The findings and conclusions shall set forth and demonstrate the manner in which the decision carries out and helps to implement the goals and policies of the comprehensive plan and the standards set forth in the various land use regulatory codes, and any other relevant codes and policies.

B. At the conclusion of oral testimony at a public hearing, the hearing examiner may establish the date and time at which the public record will close. The public record may be extended and kept open beyond the public hearing for the purpose of allowing written testimony to be submitted. The extension shall not exceed ten working days after the conclusion of oral testimony. All decisions of the hearing examiner shall be rendered within ten working days after the date the public record closes, unless all parties agree to an extension of this time period.

C. Upon issuance of the hearing examiner’s decision, the staff shall transmit a copy of the decision by certified mail to the applicant and send a notice of the decision by first-class mail to all parties of record and any other interested parties requesting the same.

D. The hearing examiner may make scrivener error-type corrections in an abbreviated post-decision process called clarification. A request for such corrections must be filed in writing on forms provided by the community development department and must be accompanied by the required motion for clerical correction fee established by the board of county commissioners from time to time. (Ord. 2010-04, 5-11-10; Ord. 2006-16 (part))

2.80.135 Reconsideration.

A. Any aggrieved party of record may request a reconsideration of a hearing examiner decision. A party of record is any person who attends the public hearing, submits written testimony, presents testimony, and/or any person holding ownership interest in the parcel(s) of land subject to such decision.

B. A request for reconsideration shall be filed in writing on forms provided by the community development department and must be accompanied by the required reconsideration fee. The reconsideration fee shall be the same as the administrative appeal fee established by the board of county commissioners from time to time. Fees are not refundable. This request shall set forth the specific errors or new information relied upon by such appellant and shall cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. The grounds for seeking reconsideration shall be limited to the following:

1. The hearing examiner exceeded his or her jurisdiction;

2. The hearing examiner failed to follow the applicable procedures in reaching a decision;

3. Irregularity in the proceedings before the hearing examiner by which such party was prevented from having a fair hearing.

4. The hearing examiner committed an error of law or misinterpreted the applicable statute, county code section, ordinance or resolution, law or regulation;

5. The hearing examiner’s findings, conclusions or conditions are not supported by the record;

6. Omission of material fact;

7. Discovery of new information not available at the time of hearing that could be material to the outcome;

8. Error in the computation of any monetary element of the decision;

9. Clerical mistakes in the official file or record transmitted to the hearing examiner, including errors arising from inadvertence, oversight, or omission, which may have materially affected the hearing examiner’s decision on the matter.

10. Changes to the application proposed by the applicant in response to deficiencies identified at hearing.

C. A request for reconsideration must be filed with the community development department with[in] ten business days following the hearing examiner’s written decision. Such requests shall be delivered by mail or personal delivery before 5:00 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 5:00 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were mailed or postmarked. Timely filing of a request for reconsideration shall stay the hearing examiner’s decision until such time as the hearing examiner issues a decision on reconsideration.

D. The administrator shall provide mailed notice that a request for reconsideration has been filed to all parties of record.

E. The hearing examiner shall consider the request for reconsideration without a hearing.

F. Reconsideration of the decision is wholly within the discretion of the hearing examiner. The hearing examiner can choose to deny the motion without comment or choose to reconsider. He or she may revise the decision as they deem appropriate and may issue a revised record of decision; including, but not limited to, denying the request, granting the request, with or without oral argument, and may render a revised decision. If a request for reconsideration is accepted, a decision is not final until after a decision on reconsideration is issued. There shall no time limit for how long the hearing examiner has to consider such a request.

G. The decision of the hearing examiner shall be subject to reconsideration only one time by any party, even if the hearing examiner reverses or modifies the original decision.

H. A request for reconsideration is not a prerequisite to filing an appeal under SCC § 2.80.140 (Ord. 2010-04, 5-11-10)

2.80.140 Appeal of hearing examiner decision.

A. Except for recommendations of the hearing examiner under Section 2.80.060(A)(5) and (6), the decision of the hearing examiner shall be final and conclusive unless an appeal is filed conforming to the requirements of Chapter 36.70C RCW, or to the Department of Ecology, pursuant to Chapter 90.58 RCW, for shoreline decision issued under Title 20, or to the Gorge Commission for National Scenic Area decisions issued under Title 22.

B. The timely filing of an appeal shall stay the effective date of the hearing examiner’s decision until such time as a court of competent jurisdiction (Chapter 36.70C RCW), Washington State Department of Ecology (Chapter 90.58 RCW) or the Columbia River Gorge Commission, adjudicates the appeal.

C. Only those parties listed as parties of record for the hearing examiner’s decision shall be eligible to file an appeal. (Ord. 2014-03, 8-12-14; Ord. 2006-16 (part))

2.80.150 Annual report to the board of county commissioners.

A. The hearing examiner shall annually report in writing to the board of county commissioners for the purpose of reviewing the administration of county planning, building and other regulatory code sections, ordinances and policies. The written report shall include a summary of hearing examiner decisions during the preceding annual period, including the nature of the decision and their particulars.

B. The hearing examiner shall meet with the board of county commissioners and county department heads at the request of the board of county commissioners, involving matters of the office. (Ord. 2006-16 (part))

2.80.160 Scheduling.

A. The hearing examiner shall, to the extent practicable and consistent with requirements of law, conduct public hearings promptly and efficiently. The hearing examiner, community development department, other involved departments and all applicants shall make every effort to avoid delay at each stage of a matter to be processed by the hearing examiner.

B. Public hearings will normally be scheduled the second and fourth Thursday of each month, or as otherwise determined by the hearing examiner and the community development department, subject to the hearing examiner’s schedule and the availability of hearing rooms.

C. The county departments shall be responsible for scheduling hearings within their jurisdiction. In the event hearings from multiple jurisdictions are to be heard on the same day, the departments shall coordinate scheduling on those days to avoid conflicts.

D. The community development department shall prepare an agenda for each hearing examiner public hearing listing its date and place, the estimated time that each item is scheduled to be heard, an indication of the nature of each application to be considered, and a concise description of the property location affected by each application. The agenda shall be posted in the community development department’s offices and on the county website for public review at least seven days before the hearing, and may be distributed to interested news media, upon request.

E. Prior to a public hearing, the hearing examiner on his or her own motion, or at the request of a party of record, may resolve scheduling issues. This may include, but is not limited to, establishing a briefing schedule, requiring identification of witnesses, scheduling of witnesses, and resolution of any other issues, for the purpose of conduction an efficient hearing. (Ord. 2010-04, 5-11-10; Ord. 2006-16 (part))