Article III. Hearing Examiner Procedures
15.02.200 Hearing examiner procedures.
The following procedures apply to where this title requires the hearing examiner to conduct open public hearings.
A. Project Review. The hearing examiner shall receive and examine available information including environmental checklists and environmental impact statements, conduct public hearings, prepare a record thereof, enter findings of fact and conclusions based upon those facts, and enter decisions as provided herein.
B. Final Action. The decisions of the hearing examiner shall represent the final action on the applications and decisions specified in Review Process IIIA, including consolidated SEPA appeals on these actions. The recommendations of the hearing examiner shall not represent final action on the applications and decisions specified in Review Process IIIB; the city council decision following any remand shall represent final action.
C. Reports by City Staff and Applicant/Appellant.
1. When an application has been set for public hearing, the planning department or other appropriate city departments shall coordinate and assemble the comments and recommendations of other city departments and governmental agencies having an interest in the subject application and shall prepare a report summarizing the factors involved and the proposed findings and recommendations.
2. At least five working days prior to the scheduled hearing, the report shall be filed with the hearing examiner and copies thereof shall be mailed to the applicant and made available for use by any interested party for the cost of reproduction; provided, however, any appeal heard by the hearing examiner under this title shall be subject to the procedures in the appeals section of this title.
D. Open Public Hearing. Before rendering a decision on any application or appeal or making a recommendation, the hearing examiner shall hold one open public hearing thereon. Notice of the time and place of the public hearing and hearing procedures are specified in Section 15.02.080(C). The hearing examiner may continue or reconvene the hearing in order to implement the purposes and provisions of this title.
E. Decision, Recommendation, Conditions.
1. Applicable to All Actions. The hearing examiner’s decision or recommendation may be to grant or deny the applications, 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 project compatible with its environment and carry out the objectives and goals of the city’s environmental policy ordinance, comprehensive plan, shoreline master program, other applicable plans and programs adopted by the city council, the unified development code (Title 19), other applicable codes and ordinances of the city and regulations of other agencies. The scope of the hearing examiner’s review for any hearing, recommendation, or decision on a proposed permit or appeal is further specified in Section 15.02.600. Conditions, modifications and restrictions which may be imposed include, but are not limited to:
a. Exact location and nature of development, including additional building and parking area setbacks, screening in the form of landscaped berms, landscaping or fencing;
b. Measures to avoid or otherwise mitigate the adverse environmental impacts of the development;
c. Hours of use or operation or type and intensity of activities;
d. Sequence and scheduling of the development;
e. Maintenance of the development;
f. Duration of use and subsequent removal of structures;
g. Granting of easements and dedications of roads, walkways, utilities or other purposes and dedication of land or other provisions for public facilities, the need for which the hearing examiner finds would be generated in whole or in significant part by the proposed development;
h. Provisions which would bring the proposal into compliance with the comprehensive plan;
i. Posting of assurance devices as required to insure compliance with any conditions, modifications and/or restrictions imposed on the proposal.
2. Additional Considerations. The hearing examiner shall consider criteria for land use actions set forth in Chapter 15.03.
3. Findings Required. When the hearing examiner renders a decision or recommendation, the hearing examiner shall make and enter written findings and conclusions from the record on all issues presented to the hearing examiner which support such recommendation or decision. Unless the applicant agrees to an extension or the hearing examiner is hearing an appeal, the hearing examiner shall render a decision or recommendation, as applicable, within ten working days of the conclusion of a hearing.
4. Notice of Decision.
a. Not later than three working days following the rendering of a written decision or recommendation, copies shall be mailed to the applicant and to other persons who have requested notice of the decision by signing a register provided at the hearing. Alternatively, the city may transmit the decision electronically to any person who so indicates on the register at the hearing. The city shall retain the right to charge a reasonable fee to recover costs associated with providing such copies. The person mailing such decision shall prepare an affidavit of mailing, in standard form, and such affidavit shall become a part of the record of such proceedings.
b. If the hearing examiner is making a recommendation to the city council, the recommendation and a copy of the hearing examiner’s record shall be transmitted to the city council.
c. Shoreline Permits.
(1) A notice of decision for shoreline substantial development, variance, and/or conditional use permit shall be provided to the Washington State Department of Ecology and the Attorney General’s Office as set forth in WAC 173-27-130.
(2) For shoreline conditional use and variance permits, the Washington State Department of Ecology issues the final decision. The Washington State Department of Ecology shall render the final decision and notify the city and the applicant of its decision approving or disapproving the permit within thirty days of filing by the city. The city shall notify those interested persons having contacted the city under the final decision.
5. Reconsideration. Any aggrieved party of record who has actively participated in the hearing before the hearing examiner may file a written request for reconsideration with the hearing examiner within ten working days after the written decision of the hearing examiner has been rendered. “Actively participated in the hearing before the hearing examiner” means the party has submitted oral or written testimony, excluding persons who have merely signed a petition. This request shall set forth the specified errors of fact and/or law relied upon. The hearing examiner may deny the request in writing or issue a revised decision or reconvene the public hearing. If the hearing is reconvened, notice of said reconvened hearing shall be mailed to all parties of record not less than ten working days prior to the hearing date. The hearing examiner’s written decision shall be rendered within fifteen working days of the conclusion of the reconvened hearing. Notice of the decision shall be provided as specified in subsection (E)(4) of this section.
6. Remand from Council. When the city council entertains a recommendation from the hearing examiner, the city council may accept the findings or conclusions of the hearing examiner, remand the recommendation to the hearing examiner or reverse the decision of the hearing examiner. Council’s action shall be based upon the hearing examiner’s record. No new information or evidence may be presented to the city council. After receiving the recommendation following remand, the city council shall either accept the recommendation of the hearing examiner or reverse the decision of the hearing examiner.
7. Dismissal—Exhaustion.
a. Under a motion filed by the city or a party to the appeal, the hearing examiner may summarily dismiss an appeal or application in whole or in part without hearing when the hearing examiner determines that the appeal or application is untimely, without merit on face, frivolous, beyond the scope of his/her jurisdiction, brought merely to secure a delay or that the applicant/appellant lacks standing. If the hearing examiner issues a dismissal order, the hearing examiner shall explain the reasons for the dismissal.
b. If the hearing examiner issues an order requiring the applicant, or any other party to the appeal, to provide additional information within a specified time period, and the party to which the order is directed fails to provide the information by the required deadline, the hearing examiner may dismiss the appeal, issue a decision on the basis of information in the record, or take other action as deemed appropriate by the hearing examiner.
c. No person may seek judicial review of any decision or determination of the city unless the person first exhausts the administrative remedies provided by the city, except for an appeal of a determination by the planning director that a proposed land use is in violation of the unified development code.
8. Jurisdiction Retained by Hearing Examiner. Whenever the hearing examiner renders a decision, the hearing examiner retains jurisdiction for the purpose of making minor changes. A “minor change” is one or more changes which do not alter the scope of the decision.
a. Upon receipt of an application for a minor change, the hearing examiner may approve or disapprove a minor change by issuance of a written order.
b. It shall be the discretion of the hearing examiner to reconvene the hearing. If the hearing examiner does not reconvene the hearing, the hearing examiner may request written clarification or comments of the minor changes. Such comments will become part of the official record.
c. Copies of the order shall be mailed to all parties of record. Within ten days of the issuance of the order, a party of record may submit a written request with the hearing examiner’s office requesting a hearing. Upon receipt of such request, the hearing examiner’s order approving the minor change will be stayed pending the hearing. Absent receipt of a request for hearing, the order shall become final upon expiration of the ten-day period.
d. An open record hearing on a proposed change shall be considered a subsequent action and is not barred by the limitation on a single open record hearing for a land use permit.
9. For the purposes of this subsection, the hearing examiner shall have all the powers of the planning director (except for that of the SEPA responsible official), and those powers necessary to fulfill his/her function as land use hearing examiner, including recommendations for docketing revisions to plans and development regulations (see Section 15.02.700). (Ord. 3774-20 § 3 (Exh. 2), 2020.)