Chapter 2.92
HEARING EXAMINER
Sections:
2.92.080 Examiner pro tem – Qualifications and duties.
2.92.090 Conflict of interest.
2.92.100 Unlawful to attempt improper influence.
2.92.130 Staff report to the examiner.
2.92.145 Hearing examiner’s recommendation.
2.92.170 Appeal of examiner’s decision.
2.92.180 Hearing examiner costs and fees.
2.92.010 Short title.
This chapter shall be hereinafter known as the “hearing examiner ordinance” and may be cited as such, and shall be hereinafter referred to as “this chapter.” (Ord. 1593-06 § 3, 2006).
2.92.020 Purpose.
The purpose of this chapter is to:
A. Ensure procedural due process and appearance of fairness in land use regulatory hearings and decisions;
B. Provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matter;
C. Provide for consistency and predictability in land use decision-making and the application of policies and regulations adopted by the city;
D. Establish clear and understandable rules governing the land use decision-making process. (Ord. 1593-06 § 4, 2006).
2.92.030 Definitions.
A. “Aggrieved” means adversely affected by proceedings before or decisions of the examiner, council, or any city department.
B. “Applicant” means a person or entity applying to the city for approval of land uses that conform to the city’s goals, policies, plans and programs of development.
C. “Application” means a completed application. An application is complete when all applicable filing requirements are met, appropriate fees have been paid, and a determination of completeness has been issued by the department.
D. “Department” means the community development department for the city of Fife.
E. “Director” means the community development director for the city of Fife.
F. “Examiner” means the regular hearing examiner or hearing examiner pro tem of the city of Fife.
G. “May” means optional and permissive, and does not impose a requirement.
H. “New evidence” means any and all evidence that is submitted or received after the date the examiner closes the official record. The official record is closed at the end of the public hearing, unless the examiner specifically allows the official record to remain open for a time certain.
I. “Official record” means the written and oral information, exhibits, reports, testimony and other evidence submitted in a timely manner and accepted by the examiner.
J. “Party of record” means:
1. A person who testifies before the examiner;
2. The applicant and any of the applicant’s agents;
3. A person who submits written comments pertaining to the merits of a case prior to when the hearing examiner closes the record on the case; or
4. The city of Fife.
K. “Shall” and “must” mean mandatory and impose a requirement. (Ord. 1593-06 § 5, 2006).
2.92.040 Office created.
The office of the hearing examiner (also referred to as “examiner”) is hereby created. The hearing examiner shall interpret, review, and apply the land use regulations of the city of Fife as provided in this chapter and other ordinances. (Ord. 1593-06 § 6, 2006).
2.92.050 Appointment.
The examiner and examiner pro tem shall be appointed by the city manager with the approval of the city council. The examiner may be removed from office by the city manager at will. (Ord. 1593-06 § 7, 2006).
2.92.060 Compensation.
The examiner and examiner pro tem shall be retained on a professional services contract for the performance of duties described in this chapter and upon such terms and conditions as the city council determines are appropriate. The compensation to be paid the examiner and examiner pro tem shall be set forth in the annual city budget. (Ord. 1593-06 § 8, 2006).
2.92.070 Qualifications.
The examiner and examiner pro tem shall be appointed solely with regard to their qualifications for the duties of the office. Minimum qualifications shall consist of five or more years’ experience in at least one of the following areas: land use planning, environmental sciences, law, architecture, engineering, or economics as well as such training or experience as will qualify the examiner to conduct quasi-judicial or administrative hearings. The examiner shall hold no other appointive or elected public office or position in Fife’s city government. (Ord. 1593-06 § 9, 2006).
2.92.080 Examiner pro tem – Qualifications and duties.
The examiner pro tem shall, in the event of the absence or inability of the examiner to act, have all the qualifications, duties and powers of the examiner. (Ord. 1593-06 § 10, 2006).
2.92.090 Conflict of interest.
A. The examiner shall be subject to the provisions of FMC 14.08.040 regarding conflict of interest, ethics, open public meetings, and appearance of fairness. The examiner shall not conduct or participate in any hearing or decision in which the examiner has a direct or indirect personal interest which might influence or interfere with his or her decision-making process or give rise to a violation of the appearance of fairness doctrine. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict.
B. The examiner shall be subject to the provisions of FMC 14.08.050 regarding ex parte communications. The examiner shall disclose matters involving ex parte contacts, conflicts of interest issues or appearance of fairness issues prior to or at the beginning of any matter. The examiner shall recuse him/herself if the examiner believes his/her review of the case would be deemed a conflict of interest or appearance of fairness violation.
C. In the event the examiner recuses him/herself, the city manager shall appoint an examiner pro tem to conduct the hearing. (Ord. 1593-06 § 11, 2006).
2.92.100 Unlawful to attempt improper influence.
No city councilmember, city official, or any other person shall attempt to interfere with or improperly influence the examiner in the performance of his/her designated duties. (Ord. 1593-06 § 12, 2006).
2.92.110 Powers.
The examiner shall be empowered to adopt rules for the scheduling and conduct of hearings and other procedural matters related to the duties of his/her office; provided such rules are consistent with the provisions of Chapter 14.08 FMC. Such rules may provide for but are not limited to conducting discovery, administering oaths, examining witnesses, issuing subpoenas for the attendance of witnesses or the production of information, receiving evidence, and establishing pre-hearing conference procedures and settlement sessions. (Ord. 1593-06 § 13, 2006).
2.92.120 Duties.
A. The following applications and appeals shall be within the jurisdiction of the examiner under the terms and procedures of this chapter:
1. Variances from the zoning code;
2. Conditional use permits;
3. Preliminary plats;
4. Site-specific rezone applications;
5. Shoreline permits;
6. Short plat appeals;
7. State Environmental Protection Act (SEPA) appeals;
8. Critical areas reasonable use exceptions, variances or appeals of any order or decision by the director regarding the critical areas ordinance;
9. Appeals of issuance, denials, revocations or suspensions of business or other city-issued licenses;
10. Appeals of decisions or requests for variances in the administration or enforcement of the water, sewer, road, flood damage prevention, surface water drainage or stormwater facility design and construction standards;
11. Appeals of administrative decisions;
12. Appeals of building or other construction-related permits, including street use;
13. Appeals of lot line adjustments;
14. Appeals of special event permits;
15. Appeals of sign permits and requests for variances from the sign code;
16. Appeals of special use permits;
17. Appeals of revocation of permits; and
18. All other appeals, hearings and interpretations where the examiner retains authority pursuant to other ordinances and provisions of the Fife Municipal Code. (Ord. 1866 § 1, 2014; Ord. 1593-06 § 14, 2006).
2.92.130 Staff report to the examiner.
The department shall coordinate and assemble the reviews 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 department’s findings, conclusions, and recommendations. At least five working days prior to the scheduled hearing, the report shall be filed with the examiner and copies thereof shall be mailed to the applicant and made available for public inspection. (Ord. 1593-06 § 15, 2006).
2.92.140 Public hearing.
Before rendering a decision on any application or appeal, the examiner shall hold one open record public hearing thereon. The department shall, in coordination with the examiner, be responsible for assigning a date and assuring due notice of public hearing for each such application or appeal. Notice of the time and place of the public hearing shall be given as provided in the ordinance governing the application or appeal. If none is specifically set forth, such notice shall be given at least 10 days prior to such hearing. The public hearing shall be conducted in accordance with the provisions of Chapter 14.08 FMC and such other rules as the hearing examiner may adopt pursuant to FMC 2.92.110. (Ord. 1593-06 § 16, 2006).
2.92.145 Hearing examiner’s recommendation.
A. For actions requiring the hearing examiner’s recommendation as provided by ordinance, the examiner’s recommendation shall be forwarded to the city council. The city council upon its review of the record may:
1. Affirm the recommendation;
2. Remand the recommendation to the hearing examiner;
3. Schedule a closed record public hearing before the city council.
B. Any aggrieved person may request the city council to conduct its own closed record hearing. Upon its own closed record hearing, the city council may affirm, reject, or modify the hearing examiner’s recommendation or take whatever action it deems appropriate pursuant to law. (Ord. 1866 § 2, 2014).
2.92.150 Examiner’s decision.
A. All decisions of the examiner must be supported by findings of fact and conclusions of law. The findings of fact must be supported by substantial evidence in the record and the conclusions of law must be based upon the policies of the comprehensive plan, subdivision regulations, environmental regulations, the standards set forth in the various land use codes of the city, or any other relevant plan, regulation, federal or state law, case law, Growth Management Hearings Board decisions, or any other applicable law. The examiner may approve, conditionally approve, or deny the application or appeal.
B. All decisions of the examiner will be rendered within 10 working days following the conclusion of all testimony and hearings and closing of the record, unless a longer period is mutually agreed to by the applicant or appellant and the examiner. Upon issuance of the examiner’s decision, the examiner will transmit a copy of the decision to the community development director and, by certified mail, to the applicant or appellant and by regular mail to other parties of record.
C. Unless specifically provided for elsewhere in this code or in another applicable ordinance, decisions of the examiner will become final in 21 business days subject to options for reconsideration and appeal under FMC 2.92.160 and 2.92.170. If any of the permits or approvals require city council action per this section, then the decision of the examiner as to all such permits or approvals shall constitute a recommendation to the city council; otherwise, the decision of the examiner shall be final subject to options for reconsideration and appeal under FMC 2.92.160 and 2.92.170. (Ord. 1688 § 1, 2009; Ord. 1593-06 § 17, 2006).
2.92.160 Reconsideration.
A. Any party of record may, within seven working days of the date of the examiner’s written decision, file with the department a written request for reconsideration based on any one of the following grounds: errors of procedure, errors of law or fact, error in judgment, or the discovery of new evidence which was not reasonably available at the open record public hearing.
B. The request shall set forth the specific errors or new information relied upon. The department shall forward the request for reconsideration to the examiner within three working days. Upon receipt of a request for reconsideration, the examiner will review the request in light of the record and take such further action as is deemed proper, including, but not limited to: denying the request; granting the request; reopening the record and public hearing process, and may render a revised decision. The examiner shall take such action as he deems appropriate within 10 days of receipt of the request. The decision of the examiner will be subject to reconsideration only one time, even if the examiner reverses or modifies the original decision.
C. The filing of a request for reconsideration shall effectively stay the appeal period until the examiner issues his decision on the request. (Ord. 1593-06 § 18, 2006).
2.92.170 Appeal of examiner’s decision.
Unless specifically provided for elsewhere in this code or in another applicable ordinance, the decision of the examiner shall be the final administrative decision of the city and may be appealed by a party of record with standing to the Pierce County superior court. A petition for a judicial appeal must be filed within 21 days of the issuance of a decision. (Ord. 1593-06 § 19, 2006).
2.92.180 Hearing examiner costs and fees.
Unless specifically provided for elsewhere in this code or in another applicable ordinance, the fees, costs, and expenses for matters reviewed by the hearing examiner shall be governed by the provisions of Chapter 3.80 FMC as applicable. (Ord. 1593-06 § 20, 2006).