Appendix B
RULES OF PROCEDURE FOR PROCEEDINGS BEFORE THE HEARING EXAMINER OF THE CITY OF SPOKANE VALLEY, WASHINGTON
Chapters:
I Rules of General Applicability
II Hearings on Permit Applications
III Rules of Appeal of Administrative Decisions
Purpose.
These rules of procedure are intended to facilitate orderly hearings and appeals of administrative decisions pursuant to the Spokane Valley Municipal Code (SVMC). These rules shall be read in conjunction with the SVMC. Any conflict between these rules of procedure and the SVMC will be resolved in favor of the SVMC. These rules seek to ensure due process for hearings. Rules may be waived, at the hearing examiner’s discretion, in order to promote hearing fairness and efficiency. Chapter I contains rules of general applicability. Chapter II sets forth rules for nonappeal hearings, and Chapter III sets forth rules for appeal hearings. (Ord. 22-012 § 8 (Exh. 1), 2022).
Chapter I RULES OF GENERAL APPLICABILITY
Sections:
A. Definitions.
B. Jurisdiction.
C. Ex Parte Communication.
D. Nature of Proceedings.
E. Authority and Duties of the Hearing Examiner.
F. Representation at Hearings or Meetings.
G. Conflicts.
A. Definitions.
Words shall be defined as set forth in Appendix A. Additional definitions specific to hearing examiner rules of procedure are provided below:
“Appellant” means a person, corporation, organization, association, or other similar group who files a complete and timely appeal of a decision or other appealable action pursuant to the SVMC.
“Applicant” means those applying for approval of land uses or other nonland use permits, license, or approvals pursuant to SVMC.
“Clerk to the hearing examiner” means a person designated to assist in the duties of the hearing examiner.
“Motion” means an oral or written request made to the hearing examiner, for an order or other ruling.
“Open record hearing” and “open record appeal hearing” shall have the same meaning as defined in RCW 36.70B.020.
“Party of record” means:
a. The applicant and/or any appellant;
b. The property owner, if different than the applicant;
c. The City;
d. Any person or public agency who individually submitted written comments to the City prior to the closing of the comment period provided in a legal notice (land use only or if specifically allowed by SVMC);
e. Any person or public agency submitting written comments or testifying at the open record hearing (land use only or if specifically allowed by SVMC); or
f. Any person or public agency who submitted to the City a written request to specifically receive the notice of decision or to be included as a party of record prior to the closing of an open record hearing (land use only or if specifically allowed by SVMC).
B. Jurisdiction.
The scope of the hearing examiner’s jurisdiction is set forth in RCW 35A.63.170 and Chapter 18.20 SVMC. The hearing examiner shall have the authority set forth in RCW 35A.63.170 and Chapter 18.20 SVMC. The scope of this jurisdiction includes the power to issue orders and make a decision or recommendation on an application or appeal as provided in the SVMC.
C. Ex Parte Communication.
Ex parte communication with the hearing examiner is governed pursuant to SVMC 18.20.050.
D. Nature of Proceedings.
1. Expeditious Proceedings. Hearings shall be conducted expeditiously to the extent practicable and consistent with legal requirements. In conducting such proceedings, the hearing examiner, City staff, and all parties and their agents shall make every effort at each stage of a proceeding to avoid delay. Subject to these rules, the hearing examiner may conduct hearings in such manner as he or she determines is appropriate to promote hearing fairness and efficiency.
2. Oath or Affirmation. All testimony before the hearing examiner shall be given under oath or affirmation to tell the truth. Either the hearing examiner or the clerk to the hearing examiner shall administer the oath or affirmation.
3. Format. Hearings are less formal than court proceedings, yet designed to present relevant exhibits and testimony to the hearing examiner and allow the orderly development of a record. At the hearing examiner’s discretion, hearings may be conducted in person, remotely, telephonically, or in such other manner as allowed or required by law; provided, that any format shall allow fair participation, testimony, and presentation of evidence by all parties and, as may be required by law, the public.
The hearing examiner may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony subject to any requirements for allowance of testimony pursuant to federal, state, or local law. In appeals, cross-examination is permitted as necessary for a full disclosure of the facts, but consistent with fairness and due process. The hearing examiner shall control the amount and style of cross-examination in the interest of conducting an orderly and timely hearing. The hearing examiner may remove or cause the removal of any person who is being disruptive to the proceedings, or continue the proceedings if order cannot be maintained. The hearing examiner shall first issue a warning if practicable.
4. Site Inspections. The hearing examiner may make site inspections pursuant to SVMC 17.80.120(F).
5. Record of Hearing.
a. Hearing examiner hearings are independent hearings before a neutral third party that is not party to the application or appeal at issue. The hearing examiner shall establish and maintain a record of all proceedings and hearings, including creating and maintaining an electronic recording capable of being accurately transcribed and reproduced. Copies of the record, including the electronic recording, of a particular proceeding shall be made available to the public within three business days of a request. The cost of copying shall be paid by the requester. Any request for the record of hearing pursuant to SVMC Appendix B, Chapter I, Section D(5)(a) shall not be considered as being made pursuant to Chapter 42.56 RCW, the Public Records Act, unless otherwise specifically stated by the requester.
b. Copies of any materials in the record may be obtained by any interested person, who shall be responsible for paying the cost of reproducing such material.
c. The hearing examiner may authorize a party to have a hearing reported by a court reporter and have stenographic transcription made at the party’s expense. The hearing examiner may also cause a hearing to be reported by a court reporter and transcribed.
d. The hearing examiner shall be custodian of the hearing record and shall maintain such record until the period for appeal of the hearing examiner’s final decision has expired or the record is transmitted to a court or the city council pursuant to an appeal of the hearing examiner’s final decision. After the appeal period has expired, the hearing record shall be transferred to the City.
6. Service of Documents. Except for an original filing of an appeal or as otherwise directed by the hearing examiner, service or filing of any required document may be by email, or email in conjunction with other electronic transmission subject to any time limits established herein, by hearing examiner order, by SVMC, or state law. Absent any otherwise established deadline, documents served shall be received on or before 4:00 p.m. on the final day of the applicable time period in order to be considered timely filed.
7. Reopening or Continuing Hearings.
a. Hearing Examiner. The hearing examiner may reopen or continue a hearing to take additional testimony or evidence, or for other cause in the interest of efficiency and fairness, provided a final decision has not been entered. If the hearing examiner announces the time and place of a continued hearing on the record before the hearing is closed, no further notice is required. If the hearing is reopened after the close of the hearing, all parties must be given at least five business days’ notice of the date, time, place, and nature of the reopened hearing. The hearing examiner may reopen the record in such form and manner as deemed appropriate in the interest of efficiency and fairness in order to provide all applicable parties an opportunity to provide such additional testimony or evidence as identified by the hearing examiner.
b. At the Request of a Party. Any party may make a motion or request for continuance or reopening of a hearing. Motions or requests shall state the basis for the continuance and be made as soon as reasonably possible. Motions and requests shall be made in writing unless made at the hearing. The hearing examiner shall have discretion to grant or deny the request for continuance. Any party requesting a continuance should confer with the other parties to select a mutually agreeable date to reopen or continue the hearing, if possible.
c. If the decision of the hearing examiner rests upon issues of fact or law not raised by any party at time of hearing, the hearing examiner shall have discretion to continue and/or reopen the hearing or record to a later date to allow the parties an opportunity to comment and/or present evidence on those issues of fact or law identified by the hearing examiner.
d. Continuances. Continuances granted by the hearing examiner shall be for a period determined by the hearing examiner in his or her discretion.
E. Authority and Duties of the Hearing Examiner.
1. Authority. The hearing examiner shall have all of the authority and duties set forth in RCW 35A.63.170 and 36.70B.120, Chapters 35.80 and 58.17 RCW, and Chapters 17.80, 17.90, 17.105 and 18.20 SVMC.
2. Interference. The hearing examiner shall not be subject to the supervision or direction of any elected official, officer, employee, or agent of any municipal department in the performance of his/her adjudicative or appellate functions.
F. Representation at Hearings or Meetings.
1. Although representation by legal counsel is not required at the hearings, any party participating in the hearings may be represented at the hearings by legal counsel of their choice and solely at their cost.
2. At the request of any department or the hearing examiner, a representative of the city attorney’s office may be present at the hearings or meetings to advise on matters of law and procedure.
3. Attorneys engaged in the representation of clients before the hearing examiner shall conduct themselves pursuant to applicable rules of professional conduct, including the display of courtesy to other members of the bar, witnesses, and all other persons present in the hearing room.
4. Parties may be represented by any representative of their choosing. Any cost for the representative shall solely be at their cost.
G. Conflicts.
These rules of procedure are adopted to supplement the requirements in the SVMC, RCW 35A.63.170, 36.70B.120, and Chapters 35.80 and 58.17 RCW. Any conflicts between these rules and the provisions of the SVMC or RCW will be decided consistent with the applicable SVMC or RCW provision. (Ord. 22-012 § 8 (Exh. 1), 2022).
Chapter II HEARINGS ON PERMIT APPLICATIONS
Chapter II applies to all hearings other than appeals, including but not limited to open record hearings on land use permit applications.
Sections:
A. Participation by Parties and Public.
B. Scheduling and Notice of Hearings.
C. Conduct of Hearings.
D. Withdrawal of Application.
E. Dismissal Based on Changed Application or Failure to Participate.
F. Recommendations/Decisions.
G. Reconsideration.
A. Participation by Parties and Public.
1. City Participation. The City shall be provided notice and the opportunity to present evidence and testimony, object, cross-examine and make motions, arguments, recommendations, and all other actions essential to a fair hearing.
2. Applicant Participation. The applicant shall be provided notice and the opportunity to present evidence and testimony, object, cross-examine, and make motions, arguments, recommendations, and all other actions essential to a fair hearing.
3. Testifying Public. Each member of the public who wishes to testify shall be provided the opportunity to present evidence and testimony at hearings and such other matters at the discretion of the hearing examiner. The hearing examiner may impose reasonable limitations on the number of witnesses heard and the nature and length of their testimony.
4. Responsibilities of City. The City shall prepare a staff report on the application in the form and manner as identified in SVMC Appendix B, Chapter II, Section C. Staff reports shall be available to the public at least seven days before the hearing.
5. Responsibilities of Applicant. The applicant shall provide the hearing examiner any material that applicant wishes to present or intends to rely upon at the hearing at least two days prior to the hearing.
The intent of this rule and SVMC Appendix B, Chapter II, Section A(4) is to ensure that all documents and arguments to be relied upon by any of the principal parties in an open record hearing before the hearing examiner are available for review by all other parties prior to the open record hearing, thus avoiding “surprise” at the hearing and facilitating efficiency. These rules will be interpreted by the hearing examiner to facilitate that purpose in conformance with applicable legal requirements for open record hearings.
6. Responsibilities of All Parties, Witnesses, and Observers. Parties, witnesses, or observers shall conduct themselves with civility and deal courteously with all involved in the proceedings. Failure to do so may result in removal from the hearing at the discretion of the hearing examiner. Testimony shall be directed to the hearing examiner on the application at issue and not at other parties. Hearings are limited to consideration of the issue before the hearing examiner, and are not public forums for general public comment.
Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference, at the hearing examiner’s discretion. The hearing examiner may require that the original of a document be produced. True and correct copies shall also be given to the City, the hearing examiner, and any other party in attendance at the hearing.
B. Scheduling and Notice of Hearings.
1. The City, in coordination with the hearing examiner, shall prepare an official agenda indicating the dates and times that matters will be heard. The official agenda shall comply with all time limits pursuant to RCW 36.70B.110 and other relevant RCW or SVMC requirement.
2. There may be more than one case scheduled to commence at the same time, and in such an event the hearing examiner shall have discretion in setting the agenda. When practical, minor applications, such as a variance or matters that take less time, shall be heard at the beginning of the day’s agenda.
3. The hearing examiner may consolidate applications involving the same or related properties for hearing.
4. Notice of Hearing – Effect of Notice.
a. Each public notice required for a hearing of an application shall conform to the applicable statutory and SVMC requirements. The notice shall contain a statement that the hearing will be conducted in the manner set forth in SVMC Appendix B.
b. Failure of a person entitled to receive notice to actually receive notice does not affect the jurisdiction of the hearing examiner to hear the application when scheduled and render a decision, if the notice was properly published, mailed, and/or posted as required by law.
c. A person is deemed to have received notice if the person appears at the hearing, submits written comments on the merits of the application, or the person fails to object to the lack of notice promptly after the person obtains actual knowledge of the hearing date.
d. If legally required notice is not given and actual notice is not received, the hearing examiner may reschedule the hearing or keep the record open on the matter to receive additional evidence.
C. Conduct of Hearings.
1. Content of the Record. The record of a hearing conducted by the hearing examiner shall include, but not be limited to, the following materials:
a. The application;
b. The departmental staff report(s);
c. The departmental file for the application, if incorporated into the record by the hearing examiner;
d. All evidence received or considered by the hearing examiner, which shall include oral testimony given at the hearing, all exhibits, and other materials submitted;
e. A statement of all matters officially noticed by the hearing examiner;
f. A decision or a recommended decision containing the findings and conclusions of the hearing examiner;
g. Electronic recordings of the hearing and proceedings by the hearing examiner;
h. An environmental determination made pursuant to the State Environmental Policy Act (SEPA), if applicable; and
i. An affidavit attesting to the notice given of the hearing (including dates and places of publication and a list of addresses).
2. Hearing Format. A hearing generally includes, but is not limited to, the following elements:
a. A brief introductory statement of the matter and overview of the hearing process by the hearing examiner;
b. A report by the City including an introduction of the official file on the application and its procedural history, an explanation of the application, including the use of visual aids, and the recommendation of the City on the application;
c. The submittal of testimony and documents by the applicant;
d. Testimony by the public on the matter;
e. Rebuttal of testimony, if applicable;
f. Closing arguments;
g. An opportunity for questions by the hearing examiner; and
h. Closure of hearing and record.
3. Content and Form of Staff Reports. The City shall coordinate and assemble the comments and recommendations of necessary City departments and commenting agencies, and shall make a written staff report to the hearing examiner on all applications. The staff report shall be distributed to the hearing examiner, the applicant, and be made available to the public at least seven calendar days prior to the date of the scheduled public hearing. If the staff report is not timely furnished, the hearing examiner may at his or her discretion continue the hearing, considering the prejudice to any party and the circumstances of the case. The staff report shall include the following, if relevant to the application:
a. A list of the names and addresses of the owner(s) and applicant(s) of the subject property and his/her property interest in the property that is the subject of the hearing.
b. A brief summary of the requested action and the citation of the SVMC provision controlling the request.
c. A common description of the subject property and a legal description of the subject property.
d. A statement identifying applicable SVMC provisions.
e. A technical data summary of the Comprehensive Plan designation and zoning designation of the subject property; the current development of the subject property and the adjoining properties; topographical information; geological and soils information; information on the vegetation on the property; and any other relevant scientific, environmental, or engineering information that is reasonably likely to assist the hearing examiner in deciding the matter.
f. The current access to the subject property from a public right-of-way, and the proposed access to the subject property if different.
g. An in-depth analysis of the proposed project under the relevant and applicable criteria.
h. A history of the requested action and a history of the development of the surrounding properties. In making the analysis, City staff shall refer to applicable SVMC provisions as often as possible.
i. A summary of any other requested land use permits on the property and in the area.
j. A description of the compatibility and impact of the proposal on the existing development in the immediate vicinity to the proposed project, and the probable character of the proposed project.
k. A summary of the reports or recommendations of any other agencies consulted.
l. Appropriate maps of the subject property. If photographs of the site are available, the applicant is encouraged to provide color reproductions that shall become part of the staff report.
m. The determination of any SEPA analysis or other environmental review.
n. Staff conclusions and recommendations, based upon applicable RCW and SVMC approval criteria.
The hearing examiner may make recommendations to the City on the format and content of staff reports submitted to the hearing examiner.
4. Evidence.
a. Burden of Proof. The applicant shall have the burden of proof to show an application meets applicable federal, state, and local laws for approval requirements.
b. Admissibility. The hearing generally will not be conducted in strict adherence to rules of evidence, but evidentiary rules may be used for guidance. Any relevant information and material shall be admitted if it possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The hearing examiner may exclude all evidence that is irrelevant, immaterial, or unduly repetitious. The rules of privilege shall be effective to the extent recognized by law. The hearing examiner shall have discretion on the admissibility of all evidence. The hearing examiner shall give such weight to the evidence submitted as he or she deems appropriate and as may be required by law.
c. Copies. Documentary evidence may be received in the form of copies, excerpts, or incorporation by reference at the hearing examiner’s discretion. The hearing examiner may require an original and it shall be provided to the hearing examiner. Parties shall provide copies of all evidence submitted to the hearing examiner to all other parties. Upon request, parties shall be given an opportunity to compare the copy with the original.
d. Judicial Notice. The hearing examiner may take judicial notice of judicially cognizable facts; federal, state, and local laws, ordinances, or regulations, the City’s Comprehensive Plan and other adopted plans or policies of the City; and may take notice of general, technical, or scientific facts within his or her specialized knowledge, so long as any noticed facts are included in the record and referenced or are apparent in the hearing examiner’s final decision. The hearing examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding.
e. The hearing examiner may occasionally request material to be filed after the close of testimony. Only those items referred to at the hearing and specifically requested by the hearing examiner may be submitted in this manner. Nothing in SVMC Appendix B, Chapter II, Section C(4)(e) allows any ex parte submission of any document or communication to the hearing examiner. All parties shall have the opportunity to address, respond, and/or provide responsive documents as may be allowed by the hearing examiner.
f. The hearing examiner may call witnesses and request written evidence in order to obtain the information necessary to make a decision. The hearing examiner may also request written information from or the appearance of a representative from any City department necessary to make a decision.
g. Additional evidence may only be submitted upon a request for reconsideration based on the discovery of new evidence which could not reasonably be available at the time of the hearing. If additional evidence is submitted with a request for reconsideration, it will only be considered upon a showing of significant relevance and good cause for delay in its submission. All parties shall be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments.
h. All parties shall be allowed an opportunity to make a record of evidence admitted or denied during the course of the hearing. This record shall include offers of proof.
D. Withdrawal of Application.
If a withdrawal request by the applicant is made to the hearing examiner before the hearing examiner issues a final decision, the hearing examiner shall dismiss the application. If so dismissed, then a new application may be submitted by the applicant and appropriate fees paid therefor as if the withdrawn application had never been submitted.
E. Dismissal Based on Changed Application or Failure to Participate.
1. The hearing examiner shall conduct the public hearing based on the completed application and applicable federal, state, and local laws. If the hearing examiner determines that the application or proposal has been substantially changed since it was deemed complete, the hearing examiner shall dismiss the application without prejudice and direct that a new application be submitted by the applicant and appropriate fees paid therefor. If the hearing examiner determines that the application or proposal has been changed but not substantially, the hearing examiner may continue the hearing to give reviewing agencies an opportunity to review the changes made and make recommendations deemed to be necessary under applicable rules and regulations.
2. The hearing examiner may dismiss an application for failure by the applicant to attend required hearings or provide requested information.
F. Recommendations/Decisions.
1. Written Decisions. The hearing examiner shall prepare and issue a written report of findings, conclusions, and decision and forward it to all parties within the time period necessary to comply with applicable permit review time periods set forth in RCW 36.70B.080 and SVMC 17.80.130, unless a longer time period is mutually agreed to in writing by the applicant, City, and the hearing examiner. Generally, final decisions shall be made within 20 calendar days following the conclusion of all testimony and hearings. Notice of the decision shall be provided pursuant to SVMC 17.80.130(E) and RCW 36.70B.130.
2. Content of Recommendation/Decision.
a. The hearing examiner’s recommendation or decision;
b. Any conditions included as part of the decision or recommendation;
c. Findings of fact upon which the decision or recommendation, including any conditions, was based. The findings shall be based exclusively on the evidence presented in the hearing and those matters officially noticed. A statement of any threshold determination made upon Chapter 43.21 RCW shall be included;
d. Conclusions, which shall include a resolution of all the issue(s) based upon the findings. The conclusions may reference legal criteria, if applicable, and shall set forth the manner in which the decision is consistent and/or would carry out the Comprehensive Plan and the SVMC, and include the contents set forth in SVMC 17.80.130(D). If the SVMC so provides, the conclusions may refer to the effect of both approval and denial on property in the vicinity, on businesses, if relevant, and on the general public; and
e. The date of the decision and time period for appeal, if any is allowed.
G. Reconsideration.
1. Any aggrieved party may file a written petition for reconsideration with the hearing examiner within 10 calendar days following the date of the hearing examiner’s written decision. The date shall be the date from which appeal deadlines are calculated. The petitioner seeking reconsideration shall mail or otherwise provide a copy of the petition for reconsideration to all parties on the date of filing. The timely filing of a petition for reconsideration shall stay the hearing examiner’s decision until such time as the petition has been disposed of in writing by the hearing examiner. For purposes of appeals, all appeal periods shall be reset to the date of the hearing examiner’s decision on the petition for reconsideration.
2. The grounds for seeking reconsideration shall be limited to the following:
a. The hearing examiner exceeded the hearing examiner’s jurisdiction;
b. The hearing examiner failed to follow the applicable procedure in reaching the hearing examiner’s decision;
c. The hearing examiner committed an error of law;
d. The hearing examiner’s findings, conclusions, and/or conditions are not supported by the record; or
e. New evidence which could not reasonably have been produced and which is material to the decision is discovered.
3. The petition for reconsideration shall:
a. Contain the name, mailing address, and daytime telephone number of the petitioner, or the petitioner’s representative, together with the signature of the petitioner or of the petitioner’s representative;
b. Identify the specific findings, conclusions, actions, and/or conditions for which reconsideration is requested;
c. State the specific grounds upon which relief is requested;
d. Describe the specific relief requested; and
e. Where applicable, identify the specific nature of any newly discovered evidence or changes proposed and its relevance to the issues before the hearing examiner.
4. The petition for reconsideration shall be decided by the same hearing examiner who rendered the decision, if reasonably available. The hearing examiner shall provide notice of the decision on reconsideration to all parties. Within 14 calendar days of receipt of the petition for reconsideration, the hearing examiner shall:
a. Deny the petition in writing;
b. Grant the petition and issue an amended decision pursuant to SVMC 17.80.130 following reconsideration;
c. Accept the petition and give notice to all parties of record of the opportunity to submit additional written comment. Parties shall have 10 calendar days from the date of such notice in which to submit written comments. The hearing examiner shall either issue a decision pursuant to SVMC 17.80.130, or issue an order within 15 calendar days after the close of the comment period setting the matter for further hearing. If further hearing is ordered, the hearing examiner’s office shall mail notice not less than 15 calendar days prior to the hearing date to all parties; or
d. Accept the petition and set the matter for further open record hearing to consider new evidence, proposed changes in the application and/or the arguments of the parties. Notice of such further hearing shall be mailed by the hearing examiner’s office not less than 15 calendar days prior to the hearing date to all parties of record. The hearing examiner shall issue a decision following the further hearing pursuant to SVMC 17.80.130.
5. A decision which has been subjected to the reconsideration process shall not again be subject to reconsideration; provided, that a decision which has been revised on reconsideration from any form of denial to any form of approval with preconditions and/or conditions may be subject to further reconsideration.
6. The hearing examiner may consolidate for action, in whole or in part, multiple petitions for reconsideration of the same decision where such consolidation would facilitate procedural efficiency.
7. Clerical mistakes and errors arising from oversight or omission in hearing examiner decisions may be corrected by the hearing examiner at any time either on the hearing examiner’s initiative or on the motion of a party. A copy of each page affected by the correction, with the correction clearly identified, shall be mailed to all parties of record. This shall not extend the appeal period from the decision. (Ord. 22-012 § 8 (Exh. 1), 2022).
Chapter III RULES OF APPEAL OF ADMINISTRATIVE DECISIONS
Chapter III applies to appeals of administrative decisions that approve, deny, or condition a land use permit application or that are otherwise designated by SVMC as appealable to the hearing examiner, including SVMC 17.90.010.
Sections:
A. Filing.
B. Notice of Hearing.
C. Dismissal.
D. Prehearing Orders.
E. Party’s Representative Required.
F. Withdrawal.
G. Participation by Parties.
H. Default.
I. Conduct of Appeal Hearings.
J. Hearing Examiner’s Decision.
A. Filing.
1. Compliance with Rules. All appeals shall comply with these rules and with the requirements established in the applicable federal, state, or local law under which the appeal is filed.
2. Timeliness. A complete appeal shall be filed within 14 calendar days of the issuance of the decision being challenged unless another appeal period is stated in RCW or SVMC, in which case that appeal period shall control. To be considered timely, the appeal shall be filed no later than 4:00 p.m. on the day the appeal period expires. The complete appeal shall be filed in writing with the building official or designee unless SVMC specifically states otherwise.
3. Fee. Any filing fee required by the then-current master fee schedule shall accompany an appeal at the time of filing.
4. Contents. A complete appeal shall be in writing and contain at least the following:
a. A brief statement as to how the appellant is significantly affected by or interested in the matter appealed;
b. A brief statement of the appellant’s issues on appeal, noting the appellant’s specific exceptions and objections to the decision or action being appealed;
c. The specific relief requested, such as reversal or modification;
d. Signature, address, and phone number of the appellant, and name and address of the appellant’s designated representative, if any;
e. Full filing fee; and
f. Any other information required pursuant to SVMC 17.90.040 or other applicable RCW or SVMC requirements.
Any appeal issue not identified or raised in the appeal shall be considered untimely and shall be deemed waived.
5. Appeal Hearing Date. All complete appeals submitted and allowed pursuant to the SVMC shall be scheduled for hearing within 90 calendar days from the date of submission. Further extensions are permitted upon mutual agreement of the appellant, the applicant, and the City or by motion of a party.
6. Frequency. Hearings will be scheduled through City staff in coordination with the hearing examiner. There may be more than one case scheduled to commence at the same time, and in such an event the hearing examiner shall have discretion in setting the agenda.
7. Appeal Arguments. In order to promote efficiency, the parties shall submit written arguments prior to any hearing. Unless otherwise provided by the hearing examiner, written arguments shall be submitted as follows:
a. The appellant shall submit a brief or material in support of the appeal at least 21 calendar days before the date set for hearing. Appellant’s brief or material shall expand upon the issues raised in the appeal application and explicitly set forth alleged errors of law, fact, or procedure, or the discovery of new facts that were not reasonably available at the time of the City’s decision or action. It shall also include all evidence to be relied upon by the appellant in support of its appeal. Evidence to be presented at the hearing shall be identified in the submitted material.
b. The City shall submit a response brief or material, including, as may be necessary, a staff report, at least seven calendar days prior to the hearing. The City’s response shall identify the basis for the decision or issue being appealed. It shall include all evidence to be relied upon by the City in support of its response. Evidence to be presented at the hearing shall be identified in the response.
The City may prepare a staff report in accordance with SVMC 17.90.060, or as applicable, SVMC 17.105.070. Any staff report shall be in the form and contain the information identified in SVMC Appendix B, Chapter II, Section C(3).
c. The hearing examiner may allow reply briefs or material or otherwise modify the schedule for submission of arguments as necessary for hearing efficiency or in the interest of fairness.
d. Briefs or written material shall not exceed 15 pages in length, double-spaced with 12 or 14 point type size, excluding declarations and evidence. The hearing examiner may, in the hearing examiner’s discretion, waive or modify these page limits at the request of either of the parties (or a party of record in the event of a SEPA appeal) to accommodate complex legal and factual issues.
e. Briefs shall be limited to the specific issues set forth in the appellant’s statement of appeal except that jurisdictional and other procedural type challenges may be raised in the City’s response brief.
8. Motions. A party to the proceeding may present a motion to the hearing examiner. All motions shall be presented in writing and clearly noted as a motion. Motions may be decided without a hearing at the hearing examiner’s discretion, or may be presented at a scheduled hearing, as set forth in a prehearing order, or by filing with the clerk to the hearing examiner and serving the motion on the other parties at least five business days prior to the scheduled hearing date unless leave to shorten time is granted by the hearing examiner. Notice of the motion and a copy of it shall be given to all other parties of record on the day it is filed. Motions and responses to motions shall not exceed 10 double-spaced pages with 12 or 14 point type size in length without prior approval of the hearing examiner.
9. Proposed Findings and Conclusions. The hearing examiner may request proposed findings and conclusions from either party.
10. Service of Documents. Except for an original filing of an appeal, email and any other method agreed to in writing by the parties is allowed for service and filing of all documents subject to any time limits established herein or by SVMC, WAC, or RCW. Absent any otherwise established deadline, documents served by email shall be received on or before 4:00 p.m. on the final day of the applicable time period in order to be considered timely filed.
B. Notice of Hearing.
1. Contents. Notice of the appeal hearing shall be mailed and emailed (if available) to the appellant and the applicant, if different than the appellant, and shall conform to the applicable provisions of the SVMC.
2. Time. Notice of the hearing shall be given within the time required by SVMC. If the time for notice of hearing is not specified by the SVMC, minimum notice shall be at least 35 calendar days before the date required for appellant’s appeal brief.
3. Responsibility. The City shall be responsible for serving notice of hearing for appeals to all parties of record. If the notice of hearing is not timely provided, the hearing examiner may reschedule the hearing.
4. Record of Notice. A copy of the notice of hearing shall be made part of each case record.
C. Dismissal.
1. An appeal may be dismissed without a hearing if the hearing examiner determines that it fails to state a claim for which the hearing examiner has jurisdiction to grant relief, or it is without merit on its face, frivolous, or brought merely for the purpose of delay.
2. Any party may request dismissal of all or part of an appeal at any time with notice to all parties. The hearing examiner may make a ruling on a motion to dismiss based upon written arguments or may call for oral arguments to supplement the written arguments.
3. When the decision or action being appealed is withdrawn by the issuing department, the appeal becomes moot and shall be dismissed.
D. Prehearing Orders.
1. At the hearing examiner’s discretion, or at the request of a party having standing, a prehearing order may be issued to:
a. Identify, clarify, and simplify the issues;
b. Decide prehearing motions;
c. Establish a schedule for the hearing process, including orders for the exchange of briefs relating to the appeal; and
d. Address other matters determined by the hearing examiner to be appropriate for the orderly and expeditious disposition of the proceedings.
2. The prehearing order may be circulated via email or other means agreed upon by the parties.
3. Prehearing orders may not be appealed.
4. At the hearing examiner’s discretion, or at the request of a party with standing, a prehearing conference may be held to facilitate the issuance of the prehearing order. Holding a prehearing conference is not required for the issuance of a prehearing order.
a. All parties shall receive notice of the prehearing conference.
b. The prehearing conference may take place via telephone or videoconference equipment.
c. All parties of record have the right to be represented at any prehearing conference, but such representation is not required.
E. Party’s Representative Required.
When a party consists of more than one individual, or is a group, organization, corporation, or other entity, the party shall designate an individual to be its representative and inform the hearing examiner of the name, address, and telephone number of that designated representative. The rights of the appellant shall be exercised by the person designated as the party representative. Notice or other communication to the party representative is considered to be notice or communication to the party.
F. Withdrawal.
1. Only an appellant may withdraw an appeal.
2. Where an appeal is made by several persons, a group, organization, corporation, or other entity, withdrawal may only be made by the person designated as the party representative.
3. An appellant’s request to withdraw shall be granted as a matter of right and the appeal dismissed.
G. Participation by Parties.
1. A party may designate a representative, which may be an attorney. That representative shall be the sole person to act on behalf of a party for all purposes of the appeal.
2. All parties and others participating in and observing hearings shall conduct themselves with civility and deal courteously with all persons involved in the proceedings. Testimony shall be directed to the hearing examiner on the application at issue and not at other parties. Appeal hearings are limited to consideration of the issues on appeal, and are not public forums for general public comment.
3. Rights of Appellant. Every appellant shall have the right to notice, present evidence and testimony, cross-examination, objection, and make motions, arguments, recommendations, and all other rights essential to a fair hearing.
4. Rights of the City. The City shall have the right to notice, present evidence and testimony, cross-examination, objection, and make motions, arguments, recommendations, and all other rights essential to a fair hearing.
5. Rights of Applicant and/or Parties of Record (Land Use Appeals or as Otherwise Specifically Allowed By SVMC). The applicant and every party of record shall have the right to present evidence and testimony at hearings. The opportunity for such persons to cross-examine, object, submit motions, and arguments shall be at the discretion of the hearing examiner.
6. Responsibilities of Applicant (If Different from Appellant). The applicant shall provide the clerk to the hearing examiner any material that the applicant wishes to present or intends to rely upon at the hearing at least seven calendar days prior to the hearing unless otherwise provided herein or by separate order of the hearing examiner. The intent of this rule and SVMC Appendix B, Chapter III, Section A(6) is to ensure that all documents and arguments to be relied upon by any of the principal parties in an open record appeal hearing before the hearing examiner are available for review by all other principal parties prior to the open record hearing, thus preventing “surprise” at the hearing and facilitating efficiency and fairness. These rules will be interpreted by the hearing examiner to facilitate that purpose. Requirements of Chapter III, Section G may be modified through the prehearing order process.
7. The hearing examiner may impose reasonable limitations on the number of witnesses, and on the nature and length of their testimony. Cross-examination is permitted as necessary for a full disclosure of the facts, but consistent with fairness and due process. The hearing examiner shall control the amount and style of cross-examination.
The hearing examiner may remove or cause the removal of any person who is being disruptive to the proceedings, or continue the proceedings if order cannot be maintained. The hearing examiner shall first issue a warning if practicable.
8. Judicial Notice. The hearing examiner may take judicial notice of judicially cognizable facts; federal, state, and local laws, ordinances, or regulations, the City’s Comprehensive Plan and other adopted plans or policies of the City; and may take notice of general, technical, or scientific facts within his or her specialized knowledge, so long as any noticed facts are included in the record and referenced or are apparent in the hearing examiner’s final decision. The hearing examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding.
9. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference, at the hearing examiner’s discretion. The hearing examiner may require that the original of a document be produced. True and correct copies shall also be given to the City, the hearing examiner, and any other party in attendance at the hearing.
10. Admissibility. The hearing generally will not be conducted in strict adherence to rules of evidence, but evidentiary rules but may be used for guidance. Any relevant information and material shall be admitted if it possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The hearing examiner may exclude all evidence that is irrelevant, immaterial, or unduly repetitious. The rules of privilege shall be effective to the extent recognized by law. The hearing examiner shall have discretion on the admissibility of all evidence. The hearing examiner shall accord such weight to the evidence submitted as he or she deems appropriate and as may be required by law.
H. Default.
The hearing examiner may dismiss an appeal by an order of default where the appellant, without good cause, fails to appear or is unprepared to proceed at a scheduled and properly noticed hearing.
I. Conduct of Appeal Hearings.
1. Appeal hearings, although generally informal in nature, shall have a structured format and be conducted in a manner determined appropriate by the hearing examiner to make the relevant evidence most readily and efficiently available to the hearing examiner and to provide the parties a fair opportunity for hearing.
2. The order of an appeal hearing will generally be as follows:
a. Hearing examiner’s introductory statement;
b. Background presentation by the City (if appeal of land use application);
c. Appellant’s witnesses, evidence, and argument;
d. Parties of record (as allowed by SVMC);
e. City witnesses, evidence, and argument;
f. Applicant’s presentation (if not appellant);
g. Rebuttal witnesses; and
h. Closing argument of parties.
3. Notwithstanding any contrary provisions of the SVMC, the order of hearing may be modified or a different order established as the hearing examiner deems necessary for a clear, efficient, and fair presentation. The order of the hearing may also be modified as agreed upon by the parties, with the hearing examiner’s approval.
4. The order of presentation at the hearing shall not alter or shift any burden(s) or presumption(s) established by applicable law(s).
5. Testimony shall be given under oath or affirmation.
6. Burden of Proof.
a. For appeals of permit applications, unless otherwise provided by law, (i) the original administrative decision is presumptively correct, and (ii) the appellant shall have the burden of proof to show that the original administrative decision was issued in error of law or that the findings, conclusions, or decision are not supported by substantial evidence.
b. For appeals of threshold determinations under SEPA and Chapter 21.20 SVMC, unless otherwise provided by law, (i) the original administrative decision is presumptively correct, (ii) the appellant shall have the burden of proof, and (iii) must show that the original administrative decision was clearly erroneous.
c. For appeals of any enforcement decision, unless otherwise provided by law, (i) the determination by City staff issuing the determination shall be accorded substantial weight, and (ii) the appellant shall have the burden of proof to show that the original administrative decision was issued in error of law or that the findings, conclusions, or decision are not supported by substantial evidence.
7. Content of the Record. The record of an appeal shall include, but is not limited to:
a. The application for appeal;
b. Departmental staff reports (if applicable);
c. The briefs and materials submitted by the parties;
d. The applicable department file, if incorporated into the record by the hearing examiner;
e. An environmental determination made pursuant to SEPA (if applicable);
f. Affidavits of notice for the hearing;
g. All evidence received or considered by the hearing examiner. Such evidence includes oral testimony given at the hearing, all exhibits, and other materials admitted as evidence including any briefs allowed by the hearing examiner;
h. A statement of all matters officially noticed;
i. A decision or a recommended decision containing the findings and conclusions of the hearing examiner; and
j. Recordings made on electronic equipment.
The hearing examiner may authorize a party to have the proceedings reported by a court reporter and have a stenographic transcription made at the party’s expense. The hearing examiner may also cause the proceedings to be reported by a court reporter and transcribed.
The hearing examiner shall have custody of the record of appeal and shall maintain such record until the period for appeal of the hearing examiner’s final decision has expired or the record is transmitted to court or the city council pursuant to an appeal of the hearing examiner’s final decision. Once no longer needed for any subsequent appeals, the record of appeal shall be transferred to the City and kept by the City in compliance with applicable record retention requirements.
J. Hearing Examiner’s Decision.
1. The hearing examiner’s appeal decision shall be in writing, be based on the whole record, and include, but not be limited to, the following:
a. Background. The nature and background of the proceeding, including identification of party representatives participating in the hearing, prehearing determinations, and other similar information.
b. Findings. The facts that the hearing examiner finds relevant, credible, and requisite to the decision, based on the record of the proceedings.
c. Conclusions. Legal and factual conclusions based upon specific provisions of law and the findings of fact.
d. Decision. The outcome of the appeal (affirm/uphold, modify, or deny/reverse).
2. Procedure for Reconsideration.
a. Any party of record may file a written petition for reconsideration with the hearing examiner within 10 calendar days following the date of the hearing examiner’s written decision. The petitioner seeking reconsideration shall mail or otherwise provide a copy of the petition for reconsideration to all parties of record on the date of filing. The timely filing of a petition for reconsideration shall stay the hearing examiner’s decision until such time as the petition has been disposed of in writing by the hearing examiner.
b. The grounds for seeking reconsideration shall be limited to the following:
i. The hearing examiner exceeded the hearing examiner’s jurisdiction;
ii. The hearing examiner failed to follow the applicable procedure in reaching the hearing examiner’s decision;
iii. The hearing examiner committed an error of law;
iv. The hearing examiner’s findings, conclusions, and/or conditions are not supported by the record; or
v. New evidence which could not reasonably have been produced and which is material to the decision is discovered.
c. The petition for reconsideration shall:
i. Contain the name, mailing address, and telephone number of the petitioner, or the petitioner’s representative, together with the signature of the petitioner or of the petitioner’s representative;
ii. Identify the specific findings, conclusions, actions, and/or conditions for which reconsideration is requested;
iii. State the specific grounds upon which relief is requested;
iv. Describe the specific relief requested; and
v. Where applicable, identify the specific nature of any newly discovered evidence and its relevance to the issues before the hearing examiner.
d. The petition for reconsideration shall be decided by the same hearing examiner who rendered the decision, if reasonably available. The hearing examiner shall provide notice of the decision on reconsideration pursuant to SVMC 17.90.050 and 17.90.060. Within 14 calendar days, the hearing examiner shall:
i. Deny the petition in writing;
ii. Grant the petition and issue an amended decision pursuant to SVMC 17.90.060 following reconsideration;
iii. Accept the petition and give notice to all parties of record of the opportunity to submit additional written comment. Parties of record shall have 10 calendar days from the date of such notice in which to submit written comments. The hearing examiner shall either issue a decision pursuant to SVMC 17.90.060, or issue an order within 15 calendar days after the close of the comment period setting the matter for further hearing. If further hearing is ordered, the hearing examiner’s office shall mail notice not less than 15 calendar days prior to the hearing date to all parties of record; or
iv. Accept the petition and set the matter for a further open record hearing to consider new evidence, proposed changes in the application and/or the arguments of the parties. Notice of such further hearing shall be mailed by the hearing examiner’s office not less than 15 calendar days prior to the hearing date to all parties of record. The hearing examiner shall issue a decision following the further hearing pursuant to SVMC 17.90.060.
e. A decision which has been subjected to the reconsideration process shall not again be subject to reconsideration; provided, that a decision which has been revised on reconsideration from any form of denial to any form of approval with preconditions and/or conditions may be subject to further reconsideration.
f. The hearing examiner may consolidate, in whole or in part, multiple petitions for reconsideration of the same decision where such consolidation would facilitate procedural efficiency.
g. Clerical mistakes and errors arising from oversight or omission in hearing examiner decisions may be corrected by the hearing examiner at any time either on the hearing examiner’s initiative or on the motion of a party of record. A copy of each page affected by the correction, with the correction clearly identified, shall be mailed to all parties of record. This shall not extend the appeal period from the decision. (Ord. 22-012 § 8 (Exh. 1), 2022).