Chapter 15.13 OFFICE OF THE HEARING EXAMINER

The office of the hearing examiner is created in Chapter 2.26 EMC. The hearing examiner shall interpret, review, and implement 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. The term “hearing examiner” shall likewise include the examiner pro tem. (Ord. 2367 § 4, 2007).

15.13.030 Appointment and terms.

The hearing examiner shall be appointed by the mayor and confirmed by the city council pursuant to EMC 2.26.020. (Ord. 2367 § 4, 2007).

15.13.040 Compensation.

The hearing examiner shall be employed on a yearly basis via a renewable 12-month contract for services. (Ord. 2367 § 4, 2007).

15.13.050 Qualifications.

The hearing examiner and examiner pro tem shall be appointed solely with regard to their qualifications for the duties of the office which shall include, but not be limited to, persons with appropriate educational experience, such as an urban planner or public administrator, with at least five years’ experience, persons who have extensive experience in planning work in a responsible capacity, and persons with legal experience, particularly where the experience is in the area of land use management of administrative law. (Ord. 2367 § 4, 2007).

15.13.060 Hearing examiner pro tem – Duties and powers.

In the event of the absence or the inability of the hearing examiner to act, the examiner pro tem shall have all the duties and powers of the hearing examiner. (Ord. 2367 § 4, 2007).

15.13.070 Conflict of interest.*

The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing examiner has a direct or indirect personal interest which might exert such influence upon the examiner that might interfere with his/her decision-making process. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict. Participants in the land use regulatory process have the right, insofar as possible, to have a hearing examiner free from personal interest or prehearing contacts on land use regulatory matters considered by him/her. It is recognized that there is a countervailing public right to free access to public officials on any matter. If such personal or prehearing interest contact impairs the hearing examiner’s ability to act on the matter, such person shall so state and shall abstain therefrom to the end that the proceeding is fair and has the appearance of fairness, unless all parties agree in writing to have the matter heard by that hearing examiner. (Ord. 2367 § 4, 2007).

*State law reference(s) – Conflict of interest for planning agency, RCW 35A.63.020.

15.13.080 Freedom from improper influence.

No city council member, city official or any other person shall attempt to interfere with, or improperly influence, the hearing examiner in the performance of his/her designated duties. (Ord. 2367 § 4, 2007).

15.13.090 Duties.

The hearing examiner shall have the following duties with respect to applications of matters submitted before him or her.

A. Decisions of the Hearing Examiner. 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 these facts, which conclusions shall represent the final action on the application, unless appealed, as specified in this section for the following:

1. All Type III applications as follows:

a. Conditional use permits;

b. Applications for variances from the terms of the zoning code and subdivision code; provided, however, that no application for a variance shall be granted unless the hearing examiner finds:

i. 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 located;

ii. That such variance is necessary, because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located; and

iii. That 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.

c. Code enforcement actions.

2. Code violations pursuant to Chapter 15.12 EMC.

3. Other matters as may be designated by ordinance.

B. The hearing examiner shall have the following duties with respect to appeals submitted before him or her:

1. All Type II appeals as follows:

a. Appeals from SEPA nonexempt building, clearing, and grading permits;

b. Appeals from critical area permits and reasonable use exceptions;

c. Appeals from short plat decisions.

2. Appeals of SEPA determinations.

3. Such other matters as may be designated by ordinance.

C. Recommendations of the Hearing Examiner. 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 a recommendation to the city council, for the following:

1. All Type IV permits:

a. Rezones;

b. Planned unit developments with a change of use;

c. Preliminary plats.

2. Such other matters as may be designated by the council.

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 Chapters 15.22 and 15.24 EMC; 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 shall be construed as referring to the hearing examiner.

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 which 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 road rights-of-way. Performance bonds or other financial assurances may be required to insure compliance with conditions, modifications and restrictions.

2. In regard to applications for rezones, planned unit development applications which require a change in use and special use combining districts, the hearing examiner’s findings and conclusions shall be submitted to the city council, which 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. 2367 § 4, 2007).

15.13.100 Applications.

Applications for all matters to be heard by the hearing examiner shall be presented to the planning department. When it is found an application meets the filing requirements of the planning department, the application shall be accepted. The planning department shall be responsible for assigning a date for the public hearing for each application. The date set for a public hearing shall not be more than 30 calendar days after the applicant has complied with all requirements and furnished all necessary data to the planning department. (Ord. 2367 § 4, 2007).

15.13.110 Report by planning department.

For Type III and IV project permit applications, the planning department shall coordinate and assemble the comments and recommendations of other city departments and governmental agencies having an interest in the application and shall prepare a report with such information. For all other matters, the appropriate city department shall prepare a report 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 shall be mailed to the applicant and shall be made available for use by any interested party for the cost of reproduction. (Ord. 2367 § 4, 2007).

15.13.120 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 project permit applications, notice of the time and place of the public hearing shall be given as provided in the ordinance governing the application. If none is specifically set forth, such notice shall be given at least 10 working 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. 2367 § 4, 2007).

15.13.130 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 to 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 the case requesting the same. There shall be kept in the planning department a signed affidavit which shall attest that each mailing was sent in compliance with this provision.

B. In the case of Type IV applications requiring city council approval, the hearing examiner shall file a recommendation with the city council at the expiration of the period provided for reconsideration, or if reconsideration is accepted, within 10 working days after the decision on reconsideration. (Ord. 2367 § 4, 2007).

15.13.140 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. This request shall set forth the specific errors or new information relied upon by such appellant, and the hearing examiner may, after review of the record, take further action as he or she deems proper. If a request for reconsideration is accepted, a decision is not final until after a decision on reconsideration is issued. (Ord. 2367 § 4, 2007).

15.13.150 Appeal of decision.

A. Any party who feels aggrieved by the hearing examiner’s decision of Type III permits may submit an appeal, if authorized by statute or Enumclaw Municipal Code, within 14 days from the date of the final decision of the hearing examiner.

B. No appeal may be made from a recommendation of the hearing examiner in Type IV permits. (Ord. 2367 § 4, 2007).

15.13.160 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 or portions of the findings and conclusions from the hearing examiner’s recommendation.

B. In the case of an ordinance for rezone of property, the ordinance shall not be placed on the city council’s agenda until all conditions, restrictions or modifications which may have been stipulated by the city council have been accomplished or provisions for compliance made to the satisfaction of the legal department.

C. The action of the city council, approving, modifying, or rejecting a recommendation of the hearing examiner shall be final and conclusive. Appellants have 21 calendar days from the date of city council action to file an appeal with the superior court. (Ord. 2367 § 4, 2007).

15.13.170 City administrative staff are to be considered a person or party.

For the purpose of EMC 15.13.140 and 15.13.150, the city’s administrative staff shall be considered a “person” and/or “party” 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 superior court or to another designated forum. (Ord. 2367 § 4, 2007).