Chapter 19.30 HEARING EXAMINER

The purpose of this chapter is to provide a system of considering and applying regulatory devices which will best satisfy the need to expand the principles of fairness and due process in public hearings. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.020 Office created.

The office of hearing examiner is created. The hearing examiner shall act on behalf of the City in considering and applying adopted City policies and regulations as provided herein. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.030 Appointment.

The city manager is authorized to appoint a hearing examiner(s) and to execute the necessary contract documents as appropriate. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.040 Type 3 decisions.

A. The hearing examiner shall receive and examine available information, conduct open record public hearings and prepare records and reports thereof, and issue decisions on Type 3 land use permit applications, including findings and conclusions, based on the issues and evidence in the record. The decision of the hearing examiner on Type 3 land use permit applications shall be appealable directly to the King County superior court, pursuant to Chapter 36.70C RCW, the Land Use Petition Act, on the record established by the hearing examiner.

B. The hearing examiner’s decision may be to grant or deny the application, or the hearing examiner may grant the application with such conditions, modifications and restrictions as the hearing examiner finds necessary. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.050 Type 4 recommendations to the council.

A. The hearing examiner shall receive and examine available information, conduct open record public hearings and prepare records and reports thereof and issue recommendations, including findings and conclusions, to the council based on the issues and evidence in the record in the following cases:

1. All Type 4 land use decisions;

2. Other applications that the council may prescribe by ordinance.

B. The hearing examiner’s recommendation may be to grant or deny the application, or the hearing examiner may recommend that the council adopt the application with such conditions, modifications and restrictions as the hearing examiner finds necessary. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.060 Expeditious processing.

A. Hearings on Type 3 or Type 4 applications shall be scheduled by the hearing examiner to ensure that final decisions are issued within the time periods provided in KMC 19.25.100.

B. In all matters where the hearing examiner holds a hearing on a Type 3 or Type 4 application, the hearing shall be completed and the hearing examiner’s written report and decision or recommendation issued within 14 calendar days from the date the hearing closes, excluding any time required by the applicant or the department to obtain and provide additional information requested by the hearing examiner and necessary for action on the application consistent with applicable laws and regulations. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.070 Appeals.

A. The hearing examiner shall receive and examine available information, conduct open record public hearings and prepare records and reports thereof, and issue final decisions, including findings and conclusions, based on the issues and evidence in the record, which shall be appealable to superior court, or to other designated authority in the following cases:

1. Appeals of all Type 2 land use decisions with the exception of appeals of shoreline permits including shoreline variances and conditional uses which are appealable to the State Shoreline Hearings Board;

2. Appeals from notices of violation pursuant to Chapter 1.20 KMC;

3. Appeals from decisions regarding the abatement of a nonconformance;

4. Appeals from decisions of the city manager on requests for rate adjustments to surface and stormwater management rates and charges;

5. Appeals from police department seizures and intended forfeitures, when properly designated by the chief law enforcement officer of that department as provided in RCW 69.50.505;

6. Appeals from notices and certifications of junk vehicles to be removed as a public nuisance as provided in KMC Title 18;

7. Appeals from the city manager’s final decisions regarding the transportation concurrency, safe site access, and impact fees and intersection provisions of Chapter 12.80 KMC;

8. Appeals under Chapter 19.35 KMC (the State Environmental Policy Act – SEPA);

9. Appeals of decisions for the licensing of adult cabarets and adult retail businesses;

10. Appeals from written interpretations of the zoning code under KMC 18.10.070;

11. Appeals of flood hazard area boundaries under KMC 18.55.723(C);

12. Appeals from a preliminary determination that a proposed development is not permissible under KMC 19.25.030; and

13. Other appeals which the council may prescribe by ordinance.

B. The hearing examiner’s decision may be to grant or deny the application or appeal, or the hearing examiner may grant the application or appeal with such conditions, modifications and restrictions as the hearing examiner finds necessary.

C. The process for appeals shall be as specified in this chapter, unless otherwise described in the specific appeals provisions of other chapters of the KMC, including Chapter 1.20 KMC, Code Enforcement. [Ord. 16-0420 § 6 (Exh. 4); Ord. 12-0334 § 19; Ord. 11-0329 § 3 (Exh. 1).]

19.30.080 Notice of appeal to hearing examiner – Filing.

A. Except as otherwise provided herein, all notices of appeal to the hearing examiner shall be filed with the city clerk.

B. The statement of appeal required as part of the notice of appeal shall identify the decision being appealed and the alleged errors in that decision. Further, the statement of appeal shall state specific reasons why the decision should be reversed or modified, state the harm suffered or anticipated by the appellant, and state the relief sought. The scope of an appeal shall be based principally on matters or issues raised in the statement of appeal.

C. Failure to timely file a notice of appeal, or appeal fee, deprives the hearing examiner of jurisdiction to consider the appeal. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.090 Dismissal of untimely appeals.

On its own motion, or on the motion of a party, the hearing examiner shall dismiss an appeal for untimeliness or lack of jurisdiction. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.100 Expeditious processing of appeals.

A. Appeals shall be processed by the hearing examiner as expeditiously as possible, giving appropriate consideration to the procedural due process rights of the parties. In every appeal heard by the hearing examiner pursuant to KMC 19.30.070, the appeal process, including a written decision, shall be completed within 90 days from the date the hearing examiner’s office is notified of the filing of a notice of appeal pursuant to KMC 19.30.080. When reasonably necessary to enable the attendance of all necessary parties at the hearing, or the production of evidence, or to otherwise assure that due process is afforded and the objectives of this chapter are met, this time period may be extended by the hearing examiner at the hearing examiner’s discretion for an additional 30 days. With the consent of all parties, the time periods may be extended indefinitely. In all such cases, the reason for such extension shall be stated in the hearing examiner’s recommendation or decision. Failure to complete the hearing process within the stated time shall not terminate the jurisdiction of the hearing examiner.

B. Unless a longer period is agreed to by the parties, or the hearing examiner determines that the size and scope of the project are so compelling that a longer period is required, a public hearing shall occur within 45 calendar days from the date the office of the hearing examiner is notified that a complete statement of appeal has been filed. Where the hearing examiner has determined that the size and scope warrant an extension, this time period may be extended by the hearing examiner at the hearing examiner’s discretion for not more than 20 calendar days. The reason for the extension shall be stated in the hearing examiner’s decision. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.120 Quasi-judicial powers.

The hearing examiner may also exercise administrative powers and such other quasi-judicial powers as may be granted by City ordinance. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.130 Freedom from improper influence.

Individual councilmembers or any other person shall not interfere with or attempt to interfere with the hearing examiner in the performance of his or her designated duties. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.140 Public hearing.

When it is found that an application meets the filing requirements of the department or an appeal meets the filing rules, it shall be accepted and a date assigned for public hearing. If for any reason testimony on any matter set for public hearing, or being heard, cannot be completed on the date set for such hearing, the matter shall be continued to the soonest available date. A matter should be heard, to the extent practicable, on consecutive days until it is concluded. For purposes of proceedings identified in KMC 19.30.050, the public hearing by the hearing examiner shall constitute the hearing by the council. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.150 Consolidation of hearings.

Whenever a project application includes more than one City permit, approval or determination for which a public hearing is required or for which an appeal is provided pursuant to this chapter, the hearings and any such appeals may be consolidated into a single proceeding before the hearing examiner pursuant to KMC 19.25.020. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.160 Prehearing conference.

A prehearing conference may be called by the hearing examiner pursuant to this chapter upon the request of a party, or on the hearing examiner’s own motion. A prehearing conference shall be held in every appeal brought pursuant to this chapter if timely requested by any party. The prehearing conference shall be held at such time as ordered by the hearing examiner, but not less than 14 calendar days prior to the scheduled hearing with not less than seven calendar days’ notice to those who are then parties of record to the proceeding. The purpose of a prehearing conference shall be to identify, to the extent possible, the facts in dispute, issues, laws, parties and witnesses in the case. In addition, the prehearing conference is intended to establish a timeline for the presentation of the case. The hearing examiner shall establish rules for the conduct of prehearing conferences.

Any party who does not attend the prehearing conference, or anyone who becomes a party of record after notice of the prehearing conference has been sent to the parties, shall nevertheless be entitled to present testimony and evidence to the hearing examiner at the hearing. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.170 Report by department.

When an application or appeal has been set for public hearing, the department shall coordinate and assemble the reviews of other departments and governmental agencies having an interest in the application or appeal and shall prepare a report summarizing the factors involved and the department findings and recommendation or decision. At least 14 calendar days prior to the scheduled hearing, the report, and in the case of appeals any written appeal arguments submitted to the City, shall be filed with the hearing examiner. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.180 Notice.

Notice of the time and place of any hearing on an application or appeal before the hearing examiner pursuant to this chapter shall be mailed by first class mail at least 14 calendar days prior to the scheduled hearing date to all persons who commented on the application or requested notice of the hearing and all owners of record of property in an area within 1,000 feet of the site, although the area shall be expanded as necessary to send mailed notices to at least 20 different property owners. Included with the notice shall be the report by the City, and in the case of appeals any written appeal arguments submitted to the City. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.190 Rules and conduct of hearings.

The hearing examiner shall adopt rules for the conduct of hearings and for any mediation process consistent with this chapter. Such rules shall be published and available upon request to all interested parties. The hearing examiner shall have the power to issue summons and subpoena to compel the appearance of witnesses and production of documents and materials, to order discovery, to administer oaths, and to preserve order.

To avoid unnecessary delay and to promote efficiency of the hearing process, the hearing examiner shall limit testimony, including cross examination, to that which is relevant to the matter being heard, in light of City policies and regulations, and shall exclude evidence and cross examination that is irrelevant, cumulative or unduly repetitious. The hearing examiner may establish reasonable time limits for the presentation of direct oral testimony, cross examination and argument. Any written submittals will be admitted only when authorized by the hearing examiner under pertinent and promulgated administrative rules. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.200 Case management techniques.

In all matters heard by the hearing examiner, the hearing examiner shall use case management techniques to the extent reasonable including: limiting testimony and argument to relevant issues and to matters identified in the prehearing order (if applicable); prehearing identification and submission of exhibits (if applicable); stipulated testimony or facts; prehearing dispositive motions (if applicable); and other methods to promote efficiency and to avoid delay. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.210 Hearing examiner findings.

When the hearing examiner renders a decision or recommendation, he or she shall make and enter findings of fact and conclusions from the record which support the decision, and the findings and conclusions shall set forth and demonstrate the manner in which the decision or recommendation is consistent with, carries out and helps implement applicable State laws and regulations and the regulations, policies, objectives and goals of the comprehensive plan, subarea or neighborhood plans, the zoning code (KMC Title 18), the subdivision code (KMC Title 17), and other official laws, policies and objectives of the City, and that the recommendation or decision will not be unreasonably incompatible with or detrimental to affected properties and the general public. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.220 Additional hearing examiner findings – Reclassifications and shoreline environment redesignations.

When the hearing examiner issues a recommendation regarding an application for a reclassification of property or for a shoreline environment redesignation, the recommendation shall include additional findings that support the conclusion that at least one of the following circumstances applies:

A. An adopted subarea plan or area zoning specifies that the property shall be subsequently considered through an individual reclassification application;

B. Where a subarea plan has been adopted but subsequent area zoning has not been adopted, that the proposed reclassification or shoreline redesignation is consistent with the adopted subarea plan; or

C. The applicant has demonstrated with substantial evidence that:

1. Since the last previous area zoning or shoreline environment designation of the subject property, authorized public improvements, permitted private development or other conditions or circumstances affecting the subject property have undergone substantial and material change not anticipated or contemplated in the subarea plan or area zoning;

2. The impacts from the changed conditions or circumstances affect the subject property in a manner and to a degree different than other properties in the vicinity such that area rezoning or redesignation is not appropriate. For the purposes of this subsection, “changed conditions or circumstances” does not include actions taken by the current or former property owners to facilitate a more intense development of the property including but not limited to changing tax limitations, adjusting property lines, extending services, or changing property ownership;

3. For proposals to increase residential density, that the proposal meets the criteria in the comprehensive plan; and

4. The requested reclassification or redesignation is in the public interest. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.230 Additional hearing examiner findings – Preliminary subdivisions.

When the hearing examiner makes a decision regarding an application for a proposed preliminary subdivision, the decision shall include additional findings as to whether:

A. Appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and school grounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and

B. The public use and interest will be served by the platting of such subdivision and dedication. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.240 Additional hearing examiner findings – Master plans, site plan reviews, and special uses.

When the hearing examiner makes a recommendation or decision regarding an application for a proposed master plan, site plan review or special use, the recommendation or decision shall include additional findings as to whether the proposal complies with the criteria in KMC 18.105.050(A), 18.115.050 and/or 18.120.040(B). [Ord. 11-0329 § 3 (Exh. 1).]

19.30.250 Written decisions – Appeals.

A. The hearing examiner’s written decision on an appeal shall be transmitted to all parties of record.

B. Decisions of the hearing examiner in cases identified in KMC 19.30.040 may be appealed to the King County superior court by an aggrieved party by filing a notice of appeal in accordance with the Land Use Petition Act. [Ord. 11-0329 § 3 (Exh. 1).]

19.30.260 Voluntary mediation.

As to any appeal pursuant to this chapter which is or could become the subject of a public hearing, the department or the hearing examiner may at their own discretion or at the request of the applicant or any person with standing to the appeal, at any state of the proceedings on the appeal, initiate a mediation process to resolve disputes as to such appeal. The mediation process shall be voluntarily agreed to by all participants to the hearing process, and conducted by an independent impartial mediator who shall not be a City employee or any person who will have any role in making any recommendation or decision on the appeal. The mediation shall be conducted in accordance with rules of mediation prepared by the hearing examiner. [Ord. 11-0329 § 3 (Exh. 1).]