Chapter 14.05
OPEN RECORD PUBLIC HEARINGS

Sections:

14.05.010    General.

14.05.020    Responsibility of director for hearing.

14.05.030    Conflict of interest.

14.05.040    Ex parte communications.

14.05.050    Disqualification.

14.05.060    Burden and nature of proof.

14.05.070    Order of proceedings.

14.05.080    Decision.

14.05.090    Notice of final decision.

14.05.010 General.

Public hearings on all Type II, III, IV and VI project permit applications shall be conducted in accordance with this chapter. [Ord. 38-07 § 1, 2007].

14.05.020 Responsibility of director for hearing.

The director shall:

A. Schedule project applications for review and public hearing;

B. Provide the required notice;

C. Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall also describe any mitigation required or proposed under the city’s development regulations or SEPA authority. If the threshold determination, other than a determination of significance, has not been issued previously by the city the report shall include or append this determination. With Type I or II project permit applications, this report may be the permit;

D. Prepare the notice of decision, if required by the hearing body, and mail a copy of the notice of decision to those entitled by this chapter to receive the decision. [Ord. 38-07 § 1, 2007].

14.05.030 Conflict of interest.

The hearing body shall be subject to the code of ethics and prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23 RCW, as the same now exists or may hereafter be amended. [Ord. 38-07 § 1, 2007].

14.05.040 Ex parte communications.

A. No member of the hearing body may communicate, directly or indirectly, regarding any issue in a proceeding before him or her, other than to participate in communications necessary to procedural aspects of maintaining an orderly process, unless he or she provides notice and opportunity for all parties to participate; except as provided in this section:

1. The hearing body may receive advice from legal counsel;

2. The hearing body may communicate with staff members (except where the proceeding relates to a code enforcement investigation or prosecution).

B. If, before serving as the hearing body in a quasi-judicial proceeding, any member of the hearing body receives an ex parte communication of a type that could not properly be received while serving, the member of the hearing body, promptly after starting to serve, shall disclose the communication as described in subsection C of this section.

C. If a member of the hearing body receives an ex parte communication in violation of this section, he or she shall place on the record:

1. All written communications received;

2. All written responses to the communications;

3. The substance of all oral communications received, and all responses made;

4. Identity of each person from whom member received any ex parte communication.

The hearing body shall advise all parties that these matters have been placed on the record. Upon request made after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a rebuttal statement on the record. [Ord. 38-07 § 1, 2007].

14.05.050 Disqualification.

A. A member of the hearing body who is disqualified shall not be counted for purposes of forming a quorum. Any member who is disqualified shall make full disclosure to the audience of the reason(s) for the disqualification, abstain from voting on the proposal, and physically leave the hearing.

B. If enough members of the hearing body are disqualified so a quorum cannot be achieved, all members present, after stating their reasons for disqualification, shall be requalified and deliberations shall proceed. [Ord. 38-07 § 1, 2007].

14.05.060 Burden and nature of proof.

Except for Type VII actions, the burden of proof is on the proponent. The project permit application must be supported by convincing proof that it conforms to the applicable elements of the city’s development regulations and comprehensive plan. The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated. [Ord. 38-07 § 1, 2007].

14.05.070 Order of proceedings.

A. Before receiving testimony and other evidence on the issue, the following shall be determined:

1. Objections on jurisdictional grounds shall be noted on the record and if there is objection, the hearing body may proceed or terminate the proceeding;

2. Any member disqualifications shall be determined.

B. The presiding officer may take official notice of commonly known and accepted information, such as:

1. Ordinances, resolutions, rules, officially adopted development standards, and state law;

2. Public records and facts judicially noticeable by law.

C. Information officially noticed need not be proved by submission of formal evidence to be considered by the hearing body. Parties requesting official notice of any information shall do so on the record. The hearing body, however, may take notice of matters listed in subsection B of this section at any time. Any information given official notice may be rebutted.

D. The hearing body may view the proposed project site or planning area with or without notification to the parties, but shall put into the record a statement setting forth the time, manner and circumstances of the site visit.

E. Information shall be received from the staff and from proponents and opponents. The presiding officer may, in his or her discretion, permit persons attending the hearing to ask questions. Unless the presiding officer specifies otherwise, approved questions will be asked of persons submitting testimony by the presiding officer.

F. When the presiding officer has closed the public hearing portion of the hearing, the hearing body may openly discuss the issue and may further question the staff or any person submitting information. An opportunity to present rebuttal shall be provided if new information is presented in the questioning. When all evidence has been presented and all questioning and rebuttal completed, the presiding officer shall officially close the record and end the hearing. [Ord. 38-07 § 1, 2007].

14.05.080 Decision.

A. Following the hearing procedure described in WRMC 14.05.070, the hearing body shall approve, conditionally approve, or deny the application. If the hearing is an appeal, the hearing body shall affirm, reverse or, with the written consent of the applicant, which shall include a waiver of the statutory prohibition against two open record hearings, remand the decision for additional information.

B. The hearing body’s written decision shall be issued within 10 working days after close of record of the hearing and within 90 days of the opening of the hearing, unless a longer period is agreed to by the parties.

C. The city shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for administrative appeal, if any. For Type II, III, IV and VI project permits, the notice of decision on the issued permit shall contain the requirements set forth in WRMC 14.05.020(C).

D. The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.

E. Notice of the decision shall be provided to the public as set forth in WRMC 14.03.030(B)(2)(a) and (B)(2)(c).

F. If the city is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision. [Ord. 38-07 § 1, 2007].

14.05.090 Notice of final decision.

A. The director shall issue a notice of final decision within 120 days of the issuance of the determination of completeness pursuant to WRMC 14.02.030; provided, that the time period for issuance of a notice of final decision on a preliminary plat shall be 90 days, for a final plat 30 days, and a short plat 30 days. The notice shall include the SEPA threshold determination for the proposal, if not previously sent, and a description of any available administrative appeals. For Type II, III, IV and VI project permits, the notice shall explain that affected property owners may request a change in property tax valuation notwithstanding any program of revaluation. The notice of final decision shall be mailed or otherwise delivered to the applicant, to any person who submitted comments on the application or requested a copy of the decision, and to the Benton County assessor.

B. In calculating the timelines set forth in subsection A of this section for issuance of the notice of final decision, the following periods shall be excluded:

1. Any period during which applicant has been asked by the director to correct plans, perform required studies or provide additional required information. The period shall be calculated from the date director notifies applicant of the need for additional information until the earlier of the date director determines the additional information provided satisfies the request for information or 14 days after date additional information is provided to the city;

2. If the director determines that the information submitted is insufficient, the applicant shall be informed of the particular insufficiencies and the procedures set forth in subsection (B)(1) of this section for calculating the exclusion period shall apply;

3. Any period during which an environmental impact statement (EIS) is being prepared pursuant to Chapter 43.21C RCW and WRMC Title 18. The time period for preparation of an EIS shall be governed by WRMC 18.04.170(B);

4. Any period for consideration and issuance of a decision for administrative appeals of project permits, which shall be not more than 90 days for open record appeals and 60 days for closed record appeals, unless a longer period is agreed to by the director and the applicant;

5. Any extension of time mutually agreed to by the director and the applicant.

C. The time limits established in this title do not apply if a project permit application:

1. Requires an amendment to comprehensive plan or a development regulation;

2. Requires siting approval of an essential public facility as provided in RCW 36.70A.200; or

3. Is substantially revised by the applicant, in which case the time period shall start from the date that a determination of completeness for the revised application is issued by the director pursuant to WRMC 14.02.030 and RCW 36.70B.070. [Ord. 38-07 § 1, 2007].