Chapter 14.17 PROCEDURAL RULES FOR THE CITY OF FERNDALE HEARINGS EXAMINER

The Community Development Department shall maintain for public inspection a file containing the various records of the Hearings Examiner’s actions, findings and determinations. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.030 Definitions.

The following definitions apply for the purposes of this chapter:

Aggrieved Person. A person or entity is deemed to be an “aggrieved person” only when all of the following conditions are present: (1) the decision being challenged has prejudiced or is likely to prejudice that person or entity, (2) the person’s or entity’s asserted interests are among those that the City was required to consider when it made the decision, and (3) a judgment or decision in favor of that person or entity would substantially eliminate or redress the prejudice to that person or entity caused or likely to be caused by the challenged decision.

“Community Development Department” consists of City of Ferndale personnel responsible for planning, zoning, subdivision, building and environmental reviews performed by the City of Ferndale, including the administration of FMC Titles 14, 15, 16, 17, and 18, annexation, and the shoreline master program.

“Comprehensive Plan” means the March 2012 Comprehensive Plan and Land Use Map as now adopted and as may be amended in the future.

“Date of decision” means the date any decision issued by a Director or the Hearings Examiner is mailed via U.S. mail as accompanied by an affidavit of mailing or emailed with a verified return receipt.

“Director” means the Director of the Community Development Department or the Public Works Department or his or her designee(s).

“Ex parte communication” means any written or oral communication between an aggrieved person, interested party, or a government agency and the Hearings Examiner that was made outside of a public hearing and was not included in the public record.

“Ferndale City Council” means the Ferndale City Council, the City’s legislative body for the municipal corporation known as the City of Ferndale or any subsequently created or approved legislative body for the City of Ferndale.

General Dispositive Motion. Similar to a motion for summary judgment as set forth in CR 58, which can be granted if the Hearings Examiner determines that there is no material factual dispute, leaving only legal issues.

“Hearing” means an open record predecision hearing or a closed record hearing before the Hearings Examiner. By way of example only, the term “hearing” includes appeals based upon the FMC and the State Environmental Protection Act (or “SEPA”).

“Hearings Examiner” means the person confirmed by the Ferndale City Council as the Hearings Examiner.

“Interested citizen” means any person or entity that has:

1. Asked for a copy of a written Hearings Examiner decision by either requesting (in writing) such documents from the City’s Community Development Department or has signed a register provided for such purpose at an open record predecision hearing or appeal hearing; or

2. Made comments (written, oral or otherwise) during an open record predecision hearing.

Party of Record. An aggrieved person (as defined above) who has filed the fee required by City ordinance to initiate or generate the hearing process, the applicant/appellant and the City agency that provided one or more reports to the Hearings Examiner shall be considered parties to the hearing. Those persons or entities meeting the definition of “interested citizen” above shall not be considered to be a “party” for the purposes of this chapter unless they also meet the definition of “aggrieved person” listed above.

“Public Works Department” consists of City of Ferndale personnel responsible for maintenance and operations of the City’s water and sewer treatment facilities, streets, capital facilities, and public stormwater systems. The Public Works Department is also responsible for ensuring compliance with FMC Title 13 and City of Ferndale Development Standards.

Timely Submissions. Written submissions to the Hearings Examiner shall be considered timely if the submission is received by the Hearings Examiner (via paper or electronically) seven days before the date of the hearing. However, the Hearings Examiner may establish a different briefing schedule with the parties. A submission is deemed to be sent when it is either sent electronically or possession of the submission in paper form is transferred to the United States Postal Service or any private document carrier. Interested parties, as defined above, may submit comments until the close of a public hearing. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.040 Expeditious proceedings.

It is the policy of the Hearings Examiner that, to the extent practicable and consistent with requirements of law, public hearings shall be conducted expeditiously. In the conduct of such proceedings the Hearings Examiner and all parties, or their agents, shall make every effort at each stage of a proceeding to avoid delay. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.050 Standing.

Only an “aggrieved person,” as that term is defined in this chapter, shall have the authority (legally known as “standing”) to come before the Hearings Examiner and seek a remedy or resolution from the Hearings Examiner. A determination by the Hearings Examiner that a person or entity holds or lacks standing can be appealed pursuant to law. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.060 Powers of the Hearings Examiner.

The Hearings Examiner shall have the following powers:

A. To make all rulings, determinations or decisions he or she is permitted to make pursuant to the laws and regulations of this country and this state and City ordinances and to enter, if necessary, any written or oral order that accomplishes or implements any act the Hearings Examiner is authorized to do. The authority granted by this section includes, but is not limited to, the authority to approve, deny or remand an application, proposal or decision before him or her or, in the alternative, combine one or more of the three alternatives listed above.

B. To enter, if necessary, a written or oral order, finding and ruling that a particular person or entity is not an “aggrieved party” as that term is defined in this chapter and thus does not have standing (in the legal sense) to seek a resolution or remedy from the Hearings Examiner and to terminate a proceeding on that basis.

C. To hold the power, while conducting any hearing, to administer oaths, preserve order, limit or not accept repetitious testimony, and to issue summons for and compel the appearance of witnesses and production of documents and/or materials.

D. To have sole discretion to rule on all procedural disputes that arise during a hearing, subject to subsequent appeal if a party decides that a decision of the Hearings Examiner was incorrect factually or legally.

E. To have sole discretion to rule on general dispositive motions as defined in these rules and motions for dismissal filed by either party as a precursor to a hearing on the merits. If the Hearings Examiner finds that a factual dispute exists upon review of a general dispositive motion, the Hearings Examiner has the authority to determine whether the factual dispute is material for the purposes of dismissal.

F. To order, at his or her discretion, a prehearing conference for purposes of marking potential documents and exhibits and resolving questions or procedures.

G. To inspect the site which is the subject of a matter before them prior to or subsequent to the hearing if he or she deems it necessary to obtain a full understanding of the case. The failure of the Hearings Examiner to view a site shall not nullify or injure the decision ultimately rendered by that Hearings Examiner.

H. To review and consider in making his or her decision all “timely submissions,” as that term is defined below. He or she shall have full discretion as to whether to consider submissions that are not timely.

I. To continue proceedings for any good cause he or she deems reasonable and appropriate provided entry of a written or oral order doing so prior to making a final decision or recommendation.

J. To continue, upon an oral statement of good cause being shown, the current hearing to a specific time, place and date without further notice of that new date, time and place if he or she specifies on the record the time, date and place for the continuation of the hearing.

K. To reopen the record (with or without an additional hearing at the discretion of the Hearings Examiner) for supplemental facts, for additional briefing, or to request additional evidence.

L. To reopen a hearing after a written decision is rendered but before the applicable appeal period expires if he or she becomes aware that the decision rendered (1) was based on fraudulent evidence, misrepresentation or other misconduct by a “party” (as that term is defined in this chapter), or (2) was based upon mistake, misconception of facts, or erroneous application of the law.

M. To set a date for the reopened hearing and a date for the submission of additional evidence, if determined necessary and appropriate by the Hearings Examiner. The City shall give no less than 10 days’ written notice of the time, date and place for the reopened hearing to all interested parties and parties of record, as defined within this chapter. The Hearings Examiner may decide, in his or her discretion, to require that official notice is given.

N. To set a time and date when the public comment period for a particular matter before the Hearings Examiner closes or ceases.

O. To dismiss the application or appeal for default if the applicant or appealing party (or designated representative) fails to appear at the regularly scheduled hearing or the reopened hearing, subject to the applicant’s or appealing party’s (or designated representative’s) filing a request within seven business days to vacate the default for good cause shown.

P. To impose upon an applicant or appellant (or designated representative) who is subject to a default but subsequently has that default vacated, the costs associated with providing written notice for the rescheduled hearing date and any costs associated with the initial hearing date that the applicant or appealing party missed or did not appear at. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.070 Limitations on powers of the Hearings Examiner.

Nothing herein shall be construed to give or grant to the Hearings Examiner the power or authority to alter or change the City’s Zoning Ordinance including the Zoning Map, that authority being fully reserved to the Ferndale City Council. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.080 Notice of hearing (applications).

A. It is the responsibility of the Community Development Department to receive applications and appeals. It is also the responsibility of the Community Development Department to mail, publish, or otherwise provide proper notice of time and place of public hearings, as required by ordinance.

B. It shall be the responsibility of the individual applicant to provide to the Community Development Department the names and addresses of all persons or other entities entitled to receive notice under the provisions of the ordinance relevant to the application, as set forth in said ordinance. Names and addresses shall be obtained through the County Auditor. The applicant shall provide to the Community Development Department a statement setting forth compliance with this rule on an affidavit form provided by the Department of Planning and Community Development.

C. A notarized affidavit, or its equivalent, attesting to the written notice of a given public hearing shall be made a part of each official case record. Notice shall be effectuated in accordance with the procedures in Chapter 14.15 FMC. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.090 Procedures for appeal of administrative decisions.

A. Appeals from administrative decisions may be brought before the Hearings Examiner as provided by Chapter 14.11 FMC.

B. Appeals of administrative decisions must be submitted to the Community Development Department on a form provided by the City.

C. The Community Development Department shall, upon receipt of the appeal, transmit to the administrative official involved a copy of the appeal for review. The Community Development Department shall transmit appeals to the Hearings Examiner within five calendar days of receipt and shall prepare and provide all papers and other materials constituting the record upon which the action appealed from was taken to the Hearings Examiner at least two weeks prior to a scheduled hearing (unless there is an emergency hearing based on a stop work order). All materials forwarded shall be available for inspection by the appellant.

D. Upon receipt by the Community Development Department of a properly completed appeal application form, the City shall assign a case number and schedule the hearing as set forth in FMC 14.17.100. Appeal applications may be filed with an accompanying application for variance, conditional use permit, or other permits where applicable.

E. Notice requirements for appeals shall be identical to the notice requirements found in FMC 14.17.080 and Chapter 14.15 FMC.

F. Filing of an application for appeal shall stay all proceedings in furtherance of the action appealed from unless the Hearings Examiner finds that a stay of decision would cause peril to life or property or would otherwise work an undue hardship.

G. The format and procedure for the hearing and the subsequent Hearings Examiner decision shall be that as set forth within these rules. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.100 Public hearings.

A. Frequency.

1. Hearings on applications will normally be scheduled on the first and third Thursdays of every month, or on a date agreed upon by the parties and the Hearings Examiner. Hearings may be held on a more frequent basis, if it becomes necessary.

2. Appeal hearings will be scheduled for a time that is mutually agreeable among the appellant, the City, and the Hearings Examiner and consistent with the procedures set forth in FMC 14.17.090.

B. Format. The format for a public hearing will be of an informal nature yet will be conducted by the Hearings Examiner and designed in such a way that the evidence and facts relevant to a particular proceeding will become readily and efficiently available to the Hearings Examiner. A public hearing shall include, but need not be limited to, the following elements: a report by the Departmental staff which shall include introduction of the official file, reference to visual aids (maps or plans) and a summary of the recommendation of the Department; testimony by the applicant or petitioner; testimony in support; testimony of opposing parties; public comment on applications; opportunity for cross-examination and rebuttal; and opportunity for questions by the Hearings Examiner. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.110 Presence of legal counsel at public hearings or meetings.

At the request or discretion of the Hearings Examiner, the City Attorney may be present at public hearings or meetings to advise the City on matters of law and procedure. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.120 Applicant’s agent, representative or legal counsel.

If the applicant is represented by a third party, documentation must be in the record acknowledging that the applicant has given permission for each representation. The applicant must give the City and the Hearings Examiner at least seven days’ notice that he or she intends to have legal representation at the hearing. Failure to notify may result in a continuation of the hearing, at the Hearings Examiner’s discretion. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.130 Evidence.

A. Burden of Proof. In each particular proceeding, the appellant, applicant, or proponent of an individual petition, application or appeal shall have the burden of proof except as otherwise required by the Ferndale Municipal Code or law.

B. Admissibility. The hearing generally will not be conducted according to technical rules relating to evidence and procedure. Any relevant evidence shall be admitted if it is of the type which would tend to prove or disprove a material or relevant fact or assertion and would be commonly accepted by reasonably prudent persons in the conduct of their affairs. The rules of privilege shall be effective to the extent recognized by law. Relevant material and reliable evidence shall be admitted. Irrelevant, immaterial, unreliable and repetitious evidence may be excluded at the sole discretion of the Hearings Examiner, who shall, during the hearing, have full discretion to make evidentiary rulings.

C. Copies. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

D. Official Notice. The Hearings Examiner may take official notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within his or her specialized knowledge. When a recommendation or decision of the Hearings Examiner rests, in whole or in part, upon the taking of official notice of a material fact not appearing in the evidence of the record, opportunity to disprove such facts so noted shall be granted any affected person making timely notice therefor.

E. Evidence Received Subsequent to the Hearing. Additional evidence submitted after the close of the hearing is generally not accepted. However, if such additional evidence is submitted subsequent to the hearing, it will only be accepted and considered upon a showing that the evidence has significant relevance and there is good cause for the delay in its submission. All “parties” (as that term is defined herein) will be given notice of the consideration of such evidence and, at the discretion of the Hearings Examiner, granted an opportunity to review such evidence and file rebuttal arguments regarding that additional evidence. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.140 Record.

A. The record of a hearing conducted by the Hearings Examiner shall include, but need not be limited to, the following materials:

1. The application or petition;

2. The Departmental staff report;

3. In the case of appeal hearings, and sometimes in the case of applications, legal briefs, if submitted on behalf of the City and opposing parties;

4. All evidence received or considered, which shall include all exhibits and other materials filed;

5. A statement of all matters noticed;

6. A decision or a recommended decision containing the findings of fact and conclusions of law of the Hearings Examiner;

7. Video and sound recordings made on electronic equipment; and

8. An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA), if applicable.

B. Hearings shall be electronically or digitally recorded and such recordings shall be part of the official case record. Copies of the electronic recordings of a particular proceeding shall be made available to the public upon request and the reasonable cost of such copying shall be paid by the person or party requesting the recording.

C. Copies of any and all documents submitted during a hearing can be obtained by any person or party willing to pay for such copies. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.150 Testimony.

A. Oath. All testimony before the Hearings Examiner shall be taken under oath.

B. Subpoena Powers. The Hearings Examiner shall have the power to issue summons for and compel the appearance of witnesses and production of documents and materials. A party requesting a subpoena shall submit it to the Hearings Examiner for signature and is responsible for ensuring that it is properly served on the person being subpoenaed. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.160 Computation of time.

Computation of any period of time prescribed or allowed by these rules shall begin with the first calendar day following that on which the act or event initiating such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday or national or state holiday, the period shall run until the end of the next business day. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.170 Rights of parties.

Every party (as that term is defined in this chapter) shall have the right of proper notice, cross-examination (rebuttal), presentation of evidence, objection, motion, argument, and all other rights essential to a fair hearing. The Hearings Examiner may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony. Cross-examination shall be permitted to the extent it is necessary for a full disclosure of the facts. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.180 Continuation of hearing.

A. Cause. Consistent with FMC 14.17.060, the Hearings Examiner may continue or reopen proceedings for any good cause he or she deems reasonable and appropriate or to consider a request for reconsideration, provided an order for such action is entered prior to the issuance of the recommendation or decision.

B. Notification. If the Hearings Examiner determines at a hearing that there is good cause to continue such proceeding and specifies the date, time, and place, no further notice is required. When determination for further hearing is made, following the conclusion of a hearing on a given matter, all parties of record and interested citizens shall be provided not less than 10 days’ written notice (via U.S. mail or email) of the date, time, place and nature of the subsequent hearing.

C. Additional Information. Where the Hearings Examiner determines that additional information is necessary to form a complete record, the record may be left open for a determinant period of time by the Hearings Examiner for receipt of only those items specified by the Hearings Examiner.

D. Request for Continuance. The applicant/appellant or the City may request a continuance of the hearing at any time. Any party of record may request a continuance at the hearing. Continuances may be granted at the discretion of the Hearings Examiner unless it appears to the Hearings Examiner that the request is for the purpose of delay only. No more than one continuance request per party of record shall be granted without a substantial showing of good cause.

E. Consent to Extension/Denial for Prejudice. The Hearings Examiner may deny a request for continuance by a party of record other than the applicant/appellant if the applicant/appellant will be prejudiced by a continuance which has the effect of delaying a decision beyond the date set by ordinance. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.190 Departmental staff report.

A. For all matters that go before the Hearings Examiner for review, including appeals, the Community Development Department or Public Works Department shall prepare a staff report which contains a description of the matter before the Hearings Examiner, necessary history required to understand the current status of the matter, a description of the site and the general area surrounding the area, other essential facts, and a discussion of applicable ordinances and legal standards for all matters before the Hearings Examiner. In general, these reports shall also be available seven days prior to the date of the public hearing.

B. The Hearings Examiner has the authority to request additional staff reports and supplemental staff reports from staff or City departments when needed.

C. Staff reports shall be transmitted or mailed to the Hearings Examiner and the applicant not less than seven days prior to the date of the public hearing. The report shall be made available at the Department to persons interested in a particular case, not less than seven days prior to the date of the public hearing. Costs for copying must be paid by the person making the request.

D. Failure of the Department to transmit, mail, or make available the report within the required time period may, within the discretion of the Hearings Examiner, constitute grounds for continuing the scheduled public hearing. The Hearings Examiner shall consider particular circumstances of the case, the possible prejudice to the person failing to receive a copy of the report, and the jurisdiction, if any, of the failure to comply. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.200 Briefing, briefing schedule.

In the case of appeals, and in some instances with applications, legal briefs may be submitted on behalf of the City and opposing parties. In such cases, the parties will work together to set up a briefing schedule, which will be presented to the Hearings Examiner for approval. A party’s failure to comply with the briefing schedule may be grounds for continuance of the hearing at the Hearings Examiner’s discretion. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.210 Recommendation and decision.

A. Decisions. Each final decision of a Hearings Examiner, unless a longer period is mutually agreed to in writing by the applicant and the Hearings Examiner, shall be rendered within 10 working days following conclusion of all testimony and hearings.

The Hearings Examiner shall issue the decision or recommendation in a timely manner as required by FMC 18.12.060(C)(2), unless the parties stipulate to an extension of the decision time, or if the issues are of such a complicated nature and/or the record is so voluminous that an extended decision time is warranted. If the Hearings Examiner, in his or her discretion, determines that an extended decision time is warranted, he or she will notify the parties of the extension, the basis for the extension, and the date on which the Hearings Examiner will issue the decision. Any extension must be reasonable. A decision is final unless appealed.

B. Disclosure of Decision or Recommendation. The decision or recommendation of the Hearings Examiner is a public record and available for public review.

C. Matters Remanded from the Council. In the event the Council remands an application to the Hearings Examiner for further consideration in accordance with FMC 14.11.040, the Examiner shall have the discretion to hold additional public hearings in order to comply with the remand and to determine whether additional submissions/information are needed from the parties. The Hearings Examiner also has the authority to determine whether official notice of any additional public hearings will be required. If it is decided that a public hearing is not required, the Examiner shall file a copy of the report with the Council within 20 calendar days of the Council’s decision which shall be issued to the Council and all parties of record within 14 days of that date. If the Hearings Examiner in his or her discretion determines that the record must be reopened and/or a public hearing is necessary, the Hearings Examiner will file a copy of the report with the Council and the Community Development Department will distribute the report to all parties of record within a reasonable period of time after the close of the hearing.

D. Distribution of Decision. The decision or recommendation will issue from the Hearings Examiner to the City, and the City is responsible for distributing the decision within one business day of receipt via U.S. mail and an affidavit of mailing must be prepared. (Ord. 2018 § 1 (Exh. 1), 2017; Ord. 1972 § 3 (Exh. 1), 2016)

14.17.220 Reopening/reconsideration of decisions and recommendations.

A. At any time prior to the recommendation or decision, the Hearings Examiner may reopen the proceeding for the reception of further evidence. All parties of record shall be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments.

B. Any request for reconsideration of a recommendation or decision shall be made within seven days of the date of the decision. Reconsideration shall only be granted when:

1. The requesting party presents new material evidence which was not reasonably available at the time of the hearing; or

2. The Hearings Examiner determines, based on the arguments presented, that the decision was based on an error of law; or

3. The requesting party can establish that clarifying language and/or corrections in the written decision are warranted.

4. A request for reconsideration filed in a timely manner shall stay the running of any applicable appeal periods until issuance of a decision on reconsideration.

5. No decision shall be amended or reversed until all parties with standing have been mailed copies of all materials submitted in support of the request and have been afforded a reasonable opportunity to respond. The Hearings Examiner, in his or her discretion, may set a schedule for responses/replies.

6. In accordance with FMC 14.11.060, decisions regarding requests for reconsideration shall be rendered within 10 working days from receipt of the request by the Hearings Examiner.

C. Except for the correction of clerical errors, the jurisdiction of the Hearings Examiner is terminated when the recommendation or decision becomes final, unless the matter is remanded to the Hearings Examiner. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.230 Withdrawal and dismissal of applications and appeals.

In accordance with FMC 14.17.060, the Hearings Examiner shall have the authority to dismiss applications and appeals for the following reasons:

A. Withdrawal Prior to Service of Official Notice. If a withdrawal request is made before the official notice of the public hearing is published, the applicant or appellant shall notify the Planning and Community Development Department of the withdrawal request and the withdrawal shall be automatically permitted.

B. Withdrawal after Service of Official Notice but Prior to the Public Hearing. If an applicant or appellant requests to withdraw after the official notice of the public hearing is published, the withdrawal request shall be directed to the Hearings Examiner. Upon showing of good cause, the application or petition may be dismissed without prejudice.

C. Withdrawal at or after the Public Hearing. In the event that a withdrawal request is received at the public hearing, the Hearings Examiner shall consider whether good cause exists and whether there are any objections from any interested persons. Upon a showing of good cause, the application or appeal may be dismissed without prejudice. Withdrawal requests filed subsequent to the public hearing are not to be encouraged and are to be permitted only when the applicant or petitioner satisfactorily meets a strong burden of demonstrated good cause and the absence of prejudice to interested persons.

D. Failure of an Applicant/Appellant to Appear. The Hearings Examiner may dismiss an application and an appeal if the applicant/appellant or his or her authorized representative fails to appear at the time and place scheduled for the hearing of the application/appeal.

1. The Hearings Examiner shall notify in writing the applicant/appellant in those cases which are dismissed due to the applicant’s/appellant’s failure to appear.

2. The applicant/appellant may, within seven days of the date of notice of dismissal, apply for reinstatement of the application/appeal. In such cases, the applicant must file a written request for reinstatement. Reinstatement shall be at the discretion of the Hearings Examiner for good cause shown and upon payment to the Hearings Examiner a filing fee which may be established by the Ferndale City Council. The applicant shall also be responsible for the payment of any costs associated with the provision of required notice for hearing on the reinstated application.

E. False or Incomplete Information. The Hearings Examiner may dismiss an application and appeal upon a finding that the application and appeal documents contain false information or incomplete or erroneous property owners’ names and addresses.

F. Improper Notice. The Hearings Examiner may dismiss an application and appeal upon a finding that proper notice, as required by the applicable ordinance and these rules, has not been given.

G. Effect of Dismissal. Dismissal of a hearing item means that the matter is closed, and a new application must be filed with the City in compliance with all requisite procedures. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.240 Ex parte communications prohibited (and remedy).

A. No person or entity that is either a “party” or “interested citizen,” as those terms are defined in this chapter, with respect to a particular petition or application which has been designated for a hearing before the Hearings Examiner shall communicate ex parte (outside of the record), directly or indirectly, with the Hearings Examiner concerning the merits of that or a factually related petition or application. This rule shall not prohibit ex parte communications that purely concern procedural matters (e.g., what are the deadlines for a timely submission, where can I get a copy of the Hearings Examiner rules, what is the address for the City?). However, emails sent to the Hearings Examiner on procedural matters should be copied to all parties, as defined herein.

B. No Hearings Examiner shall communicate ex parte, directly or indirectly, with any person or entity that is either a “party” or “interested citizen,” as those terms are defined in this chapter, with respect to a particular petition or application which has been designated for a hearing before the Hearings Examiner concerning the merits of that or a factually related petition or application. Communications about purely procedural matters do not fall within this prohibition. However, emails sent to the Hearings Examiner on procedural matters should be copied to all parties, as defined herein.

C. If a substantial prohibited ex parte communication is made to or by the Hearings Examiner, then such communication shall be publicly disclosed and the Hearings Examiner shall, within his or her discretion, abstain from participating in any consideration of the matter that was discussed ex parte. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.250 Disqualification or recusal of Hearings Examiner.

A. Any person acting as a Hearings Examiner for the City is subject to disqualification for bias, prejudice, or conflict of interest.

B. Any “party” or “interested citizen” (as those terms are defined in this chapter) may request the Hearings Examiner to disqualify himself or herself as soon as reasonably possible upon discovering potential grounds for disqualification. The Hearings Examiner shall determine whether to grant the request, stating facts and reasons for the decision. If the Hearings Examiner is requested to recuse himself or herself but does not, the making of the request by a “party” or “interested citizen” shall not be considered by the Hearings Examiner upon making a substantive decision.

C. If the Hearings Examiner believes that his or her relationship to the “parties” (as that term is defined in this chapter) or his or her financial interest in the subject of the hearing creates the appearance that the proceedings will not be fair, then the Examiner must either (1) voluntarily step down from the case; or (2) disclose the relationship or interest on the record and state that he or she has a bona fide conviction that the interest or relationship will not interfere with the rendering of an impartial decision.

D. A Hearings Examiner’s voluntary decision to recuse himself or herself shall be made as soon as the need for recusal becomes apparent or known to the Hearings Examiner.

E. Recusal or disqualification of a Hearings Examiner shall not be necessary or mandated simply because the Hearings Examiner has considered the same or similar proposal in another hearing, has made a ruling adverse to the interest of a “party” (as that term is defined in this chapter) in the present or another hearing, or has considered and ruled upon the same or similar issue in the same or similar context.

F. Upon the Hearings Examiner’s recusal of him or herself, the hearing will be continued until the appointment of a substitute Hearings Examiner by the City Administrator. Any substitute Hearings Examiner will be bound by these rules. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.260 Severability.

In the event any one or more of the sections of this chapter shall for any reason be held to be invalid, then such invalidity shall not affect or invalidate any other provisions of this chapter, but instead this chapter shall be construed and enforced as if such invalid provision had not been contained therein. (Ord. 1972 § 3 (Exh. 1), 2016)

14.17.270 SEPA.

This chapter is categorically exempt from SEPA, per WAC 197-11-800(20). The adoption of the ordinance codified in this chapter relates solely to governmental procedures and contains no substantive standards respecting use or modification of the environment. (Ord. 1972 § 3 (Exh. 1), 2016)