Chapter 2.46


2.46.010    Purpose.

2.46.020    Creation – Effective date – General.

2.46.030    Appointment and terms.

2.46.040    Compensation.

2.46.050    Qualifications.

2.46.060    Hearing Examiners Pro Tem – Qualifications and duties.

2.46.070    Conflict of interest.

2.46.080    Freedom from improper influence.

2.46.090    Duties.

2.46.100    Applications.

2.46.110    Report by Planning Department.

2.46.120    Open record public hearing.

2.46.130    Decision and recommendation.

2.46.140    Reconsideration.

2.46.150    Appeal of decision.

2.46.160    City Council action.

2.46.170    City administrative staff is to be considered a person or party.

State Law References: Land Use Hearing Examiner, RCW 35A.63.170.

2.46.010 Purpose.

It is the purpose of this chapter:

A. With regard to land use matters, to:

1. Provide a single, efficient, integrated land use regulatory hearing system;

2. Render land use regulatory decisions and recommendations to the City Council;

3. Provide a greater degree of due process in land use regulatory hearings;

4. Separate the land use policy formulation and the land use administrative processes.

B. With regard to other matters, to:

1. Provide a single, efficient, integrated system for hearing appeals of administrative decisions;

2. Provide a forum to hear other matters as established by City code. [Ord. 2152 § 2, 2006.]

2.46.020 Creation – Effective date – General.

The office of Hearing Examiner is created effective January 1, 2007. The Hearing Examiner shall interpret, review and apply land use regulations, hear appeals from orders, recommendations, permits, decisions or determinations made by a City official as set forth in this chapter, and review and hear other matters as provided for in this code and other ordinances. Throughout this chapter the masculine gender shall include the feminine. [Ord. 2152 § 2, 2006.]

2.46.030 Appointment and terms.

The Hearing Examiner shall be appointed by and serve at the pleasure of the City Manager. [Ord. 2152 § 2, 2006.]

2.46.040 Compensation.

The City shall contract with the Hearing Examiner and the performance of duties described in this code. The compensation paid to the Hearing Examiner shall be that established in the City annual budget and paid in accordance with the contract. [Ord. 2152 § 2, 2006.]

2.46.050 Qualifications.

The Hearing Examiner shall be appointed solely with regard to his qualifications for the duties of the office which shall include, but not be limited to, any or all of the following:

A. Appropriate educational experience, such as urban planner or public administrator;

B. Extensive experience in planning work in a responsible capacity; and

C. Legal experience, particularly where the experience is in the area of land use management and administrative law. [Ord. 2152 § 2, 2006.]

2.46.060 Hearing Examiners Pro Tem – Qualifications and duties.

The City Manager may appoint Hearing Examiners Pro Tem, who shall serve as Hearing Examiner in the absence or unavailability of the Hearing Examiner. Such Hearing Examiners Pro Tem shall be appointed subject to the qualifications and duties herein established for the Hearing Examiner, and shall serve at the pleasure of the City Manager. [Ord. 2152 § 2, 2006.]

2.46.070 Conflict of interest.

The Hearing Examiner shall not conduct or participate in any hearing or decision in which he has a direct or indirect personal interest which might exert such influence upon him sufficient to interfere with his decision-making process. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict. If the Hearing Examiner concludes that he has a conflict of interest with respect to a matter heard by that Hearing Examiner, he shall disqualify himself from participating in the deliberations and the decision-making process with respect to the matter. If this occurs and there is not a Hearing Examiner Pro Tem already appointed, the City Manager shall appoint a person to serve as the hearing examiner for that matter. [Ord. 2152 § 2, 2006.]

2.46.080 Freedom from improper influence.

No City Councilmember, City official or any other person shall attempt to interfere with, or improperly influence the Hearing Examiner in the performance of his designated duties. [Ord. 2152 § 2, 2006.]

2.46.090 Duties.

A. Applications. With respect to applications for the following matters submitted before him, the Hearing Examiner shall receive and examine available information, conduct public hearings, prepare a record thereof, and enter findings of fact and conclusions based upon those facts, which conclusions shall represent the final action on the application, unless appealed as hereinafter specified:

1. Conditional use permits;

2. Planned unit developments;

3. Preliminary plats; and

4. Applications for home occupation permits and variances from the terms of the zoning code and subdivision code. No application for variance shall be granted unless the Hearing Examiner finds:

a. The variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application is made is located;

b. That such variance is necessary because special conditions exist relating to the size, shape, topography, location, or surroundings of the subject property which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same zoning district; and

c. The granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated.

B. Appeals. With respect to appeals submitted before him the Hearing Examiner shall receive and examine available information, conduct public hearings, prepare a record thereof, and enter findings of fact and conclusions based upon those facts, which conclusions shall represent the decision on the appeal, subject to further appeal to the City Council as described in SMC 2.46.150 and 2.46.160, for the following appeals:

1. Appeals from development plan and zoning permit review decisions;

2. Appeals from sign permit decisions;

3. Appeals from administrative interpretation decisions;

4. Appeals from administrative design review decisions;

5. Appeals of SEPA determinations;

6. Closed record appeals of administrative decisions made by the City planning staff;

7. Appeals from administrative conditional use permit decisions;

8. Appeals from administrative variance decisions;

9. Appeals from short subdivision decisions;

10. Appeals from final administrative decisions regarding licenses and permits, stop work orders, notices of violation, or notices to vacate and/or abate violations, issued by a City official in the administration or enforcement of the provisions of the Sunnyside Municipal Code, including uniform codes adopted by the City regulating buildings and construction, including but not limited to the International Building Code, Uniform Housing Code, Uniform Code for the Abatement of Dangerous Buildings, and International Fire Code, as now existing or hereafter amended;

11. Appeals from final administrative decisions regarding scope of permitted use within any zoning;

12. Such other matters as may be designated by ordinance, or referred by the City for hearing before the Hearing Examiner as determined necessary or appropriate by the City Manager.

C. Recommendations. The Hearing Examiner shall receive and examine available information, conduct public hearings, prepare a record thereof and enter findings of fact and conclusions based upon those facts, together with recommendation to the City Council, for the following:

1. Upon assignment by the City Council, designation of recommended zoning for any property to be annexed to the City;

2. Rezones;

3. Planned Unit Developments with a change of use;

4. Such other matters as may be designated by the City Council, including, but not limited to, annexations and recommendations of appropriate zoning where any such annexation, in the opinion of the City Council, involves complex boundary issues, complex issues regarding proposed use or requested zoning, or any other matter that, in the opinion of the City Council, warrants referral of the annexation and zoning, to the Hearing Examiner instead of the Planning Commission.

D. Public Hearings. The Hearing Examiner shall conduct public hearings when required under the provisions of the State Environmental Policy Act; conduct open record public hearings or closed record appeals in accordance with the provisions of SMC Title 19, Administration of Development Regulations; conduct such other hearings as the City Council may from time to time deem appropriate.

E. References. All references in the City code and elsewhere to the “Board of Adjustment” and the “Board of Appeals” shall be construed as referring to the Hearing Examiner. The provisions of this chapter shall supersede any inconsistent or conflicting provisions elsewhere in this code as to the powers and duties of the Planning Commission.

F. Recommendation or Decision.

1. The Hearing Examiner’s recommendation or decision may be to grant or deny the application, or the Hearing Examiner may recommend or require of the applicant such conditions, modifications and restrictions as the Hearing Examiner finds necessary to make the application compatible with its environment, with applicable state laws, and to carry out the objectives and goals of the comprehensive plan, the zoning code, the subdivision code, and other codes and ordinances of the City. Conditions, modifications and restrictions that may be imposed are, but are not limited to, additional setbacks, screenings in the form of landscaping and fencing, covenants, easements and dedications of additional public rights-of-way. Performance bonds or other financial assurances may be required to ensure compliance with conditions, modifications and restrictions.

2. In regard to applications for rezones, annexations and any other matter submitted to the Hearing Examiner for formulation of a recommendation to the City Council, the Hearing Examiner’s findings and conclusions shall be submitted to the City Council, together with the record of hearing, and the City Council shall have the final authority to act on such applications. The hearing by the Hearing Examiner shall constitute an open record predecision hearing before the final decision is made by the City Council. [Ord. 2011-4 § 3, 2011; Ord. 2152 § 2, 2006.]

2.46.100 Applications.

Applications for all matters to be heard by the Hearing Examiner shall be presented to the affected department and to the City’s planner. When it is found an application meets the applicable requirements, the application shall be accepted. The City Planner shall be responsible for assigning a date for the public hearing for such application. The date set for a public hearing shall not be more than 60 calendar days after the applicant has complied with all requirements and furnished all necessary data to the Planning Department. Hearings on project permit applications are subject to the notice and hearing requirements set forth in SMC Title 19, Administration of Development Regulations. [Ord. 2152 § 2, 2006.]

2.46.110 Report by Planning Department.

For permit applications subject to hearing before the Hearing Examiner, the City Planner or appropriate department shall coordinate and assemble the comments and recommendations of City departments and governmental agencies having an interest in the application and shall prepare a report that includes all elements deemed necessary or appropriate to establish a record before the Hearing Examiner, and summarizing the factors involved and the department findings and supportive recommendations. At least seven calendar days prior to the scheduled hearing, the report shall be filed with the Hearing Examiner and copies mailed to the applicant, and shall be made available for use by any interested party for the cost of reproduction. [Ord. 2152 § 2, 2006.]

2.46.120 Open record public hearing.

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

B. For permit applications, notice of the time and place of the public hearing shall be given as provided in Chapter 19.03 SMC. For all other applications, notice of the time and place of the public hearing shall be given as provided in the ordinance or code governing the application. If none is specifically set forth, such notice shall be given at least 10 calendar days prior to such hearing.

C. The Hearing Examiner shall have the power to prescribe rules and regulations for the conduct of hearings under this chapter and also to administer oaths, and preserve order. [Ord. 2152 § 2, 2006.]

2.46.130 Decision and recommendation.

A. When the Hearing Examiner renders a decision or recommendation, the Hearing Examiner shall make and enter written findings from the record and conclusions therefrom which support such decision. The decision shall be rendered within 10 working days following conclusion of all testimony and hearings, unless a longer period is mutually agreed on the record by the applicant and the Hearing Examiner. The copy of such decision, including findings and conclusions, shall be transmitted by first class mail to the applicant and other parties of record in case requesting the same. There shall be kept in the City Planning and Community Development Department a signed affidavit or sworn statement which shall attest that each mailing was sent in compliance with this provision.

B. In the case of applications requiring City Council approval, the Hearing Examiner shall file a decision with the City Clerk at the expiration of the period provided for reconsideration, or if reconsideration is accepted, within 10 working days after the decision on reconsideration. [Ord. 2152 § 2, 2006.]

2.46.140 Reconsideration.

A party of record believing that a decision or recommendation of the Hearing Examiner is based on erroneous procedures, errors of law or fact, or the discovery of new evidence which could not be reasonably available at the prior hearing, may make a written request for reconsideration by the Hearing Examiner within five working days of the date the decision or recommendation is rendered. The request shall set forth the specific errors or new information relied upon by such applicant, and the Hearing Examiner may, after review of the record, take further action as he deems proper. If a request for reconsideration is accepted, a decision is not final until after a decision on reconsideration is issued. [Ord. 2152 § 2, 2006.]

2.46.150 Appeal of decision.

A. Any party who feels aggrieved by the Hearing Examiner’s decision may submit an appeal, within 14 calendar days from the date the final decision of the Hearing Examiner is rendered, to the City Council. Such appeal is subject to the provisions of Chapter 19.06 SMC. The hearing of any appeal by the City Council shall be a closed record hearing as required pursuant to SMC 19.06.050.

B. No appeal may be made from a recommendation of the Hearing Examiner. [Ord. 2152 § 2, 2006.]

2.46.160 City Council action.

A. Any application requiring action by the City Council shall be taken by the adoption of a motion, resolution or ordinance by the City Council. When taking any such final action, the City Council shall make and enter findings of fact from the record and conclusions therefrom which support its action. The City Council may adopt all, none or portions of the findings and conclusions from the Hearing Examiner’s recommendation.

B. In the case of an ordinance for rezone or annexation of property, the ordinance shall not be published and finalized until all conditions, restrictions and modifications that may have been stipulated by the City Council have been accomplished or provisions for compliance made to the satisfaction of the City Manager.

C. The action of the City Council, approving, modifying or rejecting a recommendation of the Hearing Examiner, and the decision of the City Council issued upon any appeal as set forth in SMC 2.46.150, shall be final and conclusive. Appellants have 21 calendar days from the date of City Council final action to file an appeal with the superior court. [Ord. 2152 § 2, 2006.]

2.46.170 City administrative staff is to be considered a person or party.

The City’s administrative staff shall be considered a “person” and/or “party” with standing and shall have the same rights as any other person or party to make requests for reconsideration to the Hearing Examiner or to appeal decisions of the Hearing Examiner to the City Council and superior court. [Ord. 2152 § 2, 2006.]