Chapter 2.38
Hearing Examiner
Sections:
2.38.040 Qualifications--Removal.
2.38.060 Ex parte contact--Disclosure--Conflict of interest.
2.38.070 Rules--Application for consideration.
2.38.080 Computation of time period.
2.38.090 Time periods--Procedures.
2.38.100 Decision--Reconsideration.
2.38.110 Decision--Appeals to superior court.
2.38.120 Matters to be decided.
2.38.130 Recommendation--Final decision.
2.38.010 Purpose.
The purpose of this chapter is to:
(1) Separate the land use regulatory function from the land use planning process;
(2) Ensure procedural due process and appearanceof-fairness of land use regulatory hearings and decisions;
(3) Provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters;
(4) Provide for consistency and predictability in land use decision making and the application of policies and regulations adopted by the city;
(5) Establish clear and understandable rules governing the land use decision-making process. (Ord. 1367 §1, 1995).
2.38.020 Definitions.
In interpreting the words and phrases within this chapter, it is the intention of this section to provide specific definitions as well as general guidelines for use and interpretation of words or phrase. Generally, the following shall apply:
(1) The words and phrases defined herein when used in this chapter shall have the meaning given to them within these definitions or this chapter, unless their context clearly indicates that they are to have some other meaning.
(2) A word or phrase not defined within this chapter but defined within some other section or portion of this code shall have the meaning or definition given in that section or portion unless the context clearly indicates that it is to have some other meaning.
(3) A word or phrase not defined within this code shall be given its usual and accepted meaning or interpretation.
Administrator. "Administrator" means the city staff person assigned by the mayor or by a job description approved by the city to be the administrator of this title.
"Affected party" means any individual, partnership, corporation, association, or public or private organization of any character, significantly affected by or interested in proceedings before the hearing examiner and shall include any party in a contested case.
"Applicant" means those applying to the city for approval of land uses that conform to the city's goals, policies, plans, and programs of development.
"City" means the city of Montesano, Washington.
"Council" means the Montesano city council.
"Decision" or "final decision," when used in this chapter or any ordinance or code section relating to the powers and responsibilities of the examiner, means the final action of the examiner or, to the extent applicable, if any, the city council. Utilization of the term or terms shall in no way be deemed to restrict the powers and authority of the council and mayor as they may be granted by the laws and ordinances of the city to accept the final decision of the examiner as a recommendation and to proceed with his, her or their role in the decision-making process.
"Department" means city of Montesano planning department.
"Examiner" or "hearing examiner" means the hearing examiner of the city of Montesano.
"Ex parte communication" means written or oral communications not included in the public record and made outside of a public hearing.
"Party of record" means:
(A) The applicant or his, her, or its designated agent;
(B) Any person attending a public hearing, requesting notification of the examiner's decision, and being given assurance on the record that such notification will be given;
(C) Person submitting written arguments dealing with the merits of the case;
(D) Person attending a public hearing requesting notification of the examiner's decision.
(E) "Service," except as otherwise provided in this chapter or required by the particular circumstances of the use of the term means posting in the United States mail, properly addressed, postage prepaid, commercial parcel delivery company, or personal service. Service by mail is complete upon deposit in the United States mail. Personal service or service by a commercial parcel delivery company is complete upon delivery to the party or an individual upon whom service of a summons and complaint would be valid under the laws and decisions of this state.
"Staff" means employees of the departments of the city of Montesano, Washington. (Ord. 1367 §2, 1995).
2.38.030 Selection--Contract.
The examiner shall be selected by the mayor, subject to confirmation by the city council. The examiner may be retained under a professional services contract for a term and on conditions determined appropriate by the mayor. The contract may also provide for examiners pro tem to serve in the absence of the examiner under such terms and conditions deemed appropriate by the mayor. The contracts shall be approved by the council. (Ord. 1367 §3, 1995).
2.38.040 Qualifications--Removal.
Examiners shall be appointed solely with regard to their qualifications for the duties of their office and will have such training and experience as will qualify them to conduct administrative or quasi-judicial hearings on regulatory enactments and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointive office or position with the city. An examiner may be removed from office at will by the mayor, however, such removal shall not affect the ability of the examiner to complete any cases for which he or she has already undertaken the hearing. (Ord. 1367 §4, 1995).
2.38.050 Term.
The term of appointment for the examiner and any deputy examiner shall be for a period of four years or less or until his or her successor has been appointed and confirmed, being generally co-terminus with the term of the mayor appointing the examiner, subject to termination as provided in Section 2.38.040. Temporary examiners may be appointed for such terms and functions as the mayor and council deem appropriate. (Ord. 1367 §5, 1995).
2.38.060 Ex parte contact--Disclosure--Conflict of interest.
(a) In order to assure an appearance of fairness in matters considered by the examiner, no person shall have an ex parte contact with the examiner regarding such matter and no person, including governmental officials and employees, shall attempt to interfere with or influence the examiner outside of public hearing; provided, that a city official or employee may, in the performance of his or her officials duties, provide information to the examiner when the action is disclosed at the hearing or meeting to the extent that disclosure is required by law.
(b) No examiner shall conduct or participate in any hearing or decision in which the examiner may have a direct or indirect financial or personal interest or in which any such conduct or participation would violate any rule of law applicable thereto. (Ord. 1367 §6, 1995).
2.38.070 Rules--Application for consideration.
The examiner may prescribe rules for the scheduling and conduct of hearings and other rules of procedure. Application for the consideration of cases to be heard by the examiner shall be made to the office of the clerk-controller.
Prior to hearing examiner consideration, the applicant shall be informed of the hearing examiner fee schedule and the applicant’s responsibility for the appropriate fee. The applicant shall indicate agreement in writing to pay the hearing examiner fee prior to the matter being forwarded to the hearing examiner. (Ord. 1641 §1, 2022; Ord. 1367 §7, 1995).
2.38.080 Computation of time period.
In computing any period of time prescribed by this chapter within which an act is to be done, the time shall be computed as follows: The first day shall be excluded and the last day shall be included, unless the last day is a holiday, a Saturday, or a Sunday, in which case that day is also excluded. (Ord. 1367 §8, 1995).
2.38.090 Time periods--Procedures.
(a) Unless a different time period or procedure is established by a particular code section directly applicable to a specific type of proceeding, the following time periods and procedures shall be applicable to actions and decisions of the examiner. To the extent that there are any inconsistencies between this section and those other applicable code sections, the provisions of the other code sections shall control.
Within thirty days of the conclusion of a hearing, unless a longer period is mutually agreed to by the applicant and the examiner or established by the specific provision governing such matters, the examiner shall render a written decision which shall include findings and conclusions based on the record. The decision of the examiner shall be final and conclusive, as to any further action or appeal as to those matters in which the examiner's decision is in fact passed on to the mayor and council as a recommendation, on the twenty-first day after the date of the service of the decision unless a notice of appeal has been timely filed and served.
(b) The decision shall be served upon the applicant and any other individual or entity who or which has been given status as a party, such service to be to the last known address of the applicant or party in one of the manners provided by this chapter. (Ord. 1367 §9, 1995).
2.38.100 Decision--Reconsideration.
Any affected person or agency, who or which disagrees with the decision of the examiner, may make a written request for reconsideration by the examiner within fifteen days of the date of the written decision unless a different period of reconsideration is established by the particular section involved, in which case such specific section shall control. The request for reconsideration shall be filed with the administrator upon forms adopted by the examiner. If the examiner chooses to reconsider, the examiner may take such further action as the examiner deems proper and may render a revised decision. Upon a request for reconsideration, it is not a prerequisite to file an appeal pursuant to this chapter. Upon a decision deciding the request for reconsideration, the decision shall be deemed to be the final decision of the examiner for all purposes. The decision upon a request for reconsideration shall be served in the same manner as the original decision. All notices requesting reconsideration shall be filed within the initial fifteen days and there shall be no right to request reconsideration of the examiner’s reconsideration of a decision. (Ord. 1367 §10, 1995).
2.38.110 Decision--Appeals to superior court.
In those matters in which the decision of the examiner is in fact the final decision and not a recommendation to the mayor and council, the final decision issued by the examiner may be appealed to the superior court of the state of Washington in and for the county of Grays Harbor. Such appeal shall be filed with the clerk of that court and served upon all necessary parties within the lesser of twenty days of the date of the service of the decision or such time as may be allowed for service of such pleadings under the laws of the state of Washington; provided, that if it is a petition filed under the provisions of Chapter 36.70C RCW, the Land Use Petition Act, the time periods for filing and service in that chapter shall control. The appeal shall be upon the record considered by the examiner and shall be in the nature of a writ of review.
To the extent not inconsistent with the provisions of this chapter, any such judicial review shall be carried out in the manner and under the principles of review set forth in the provisions of Chapter 34.05 RCW relating to judicial review of administrative decisions, as now existing or hereafter amended or succeeded. This shall specifically include, but not be limited to, the contents of the petition for review, stay of decision, limitation on new issues, limitation of facts to be reviewed, the taking of new evidence and limitations thereon, preparation and content of record and imposition of the costs for such preparation, burdens of proof on review, limitations upon scope of review as to adjudicative/quasi-judicial proceedings, and type of relief which may be granted. (Ord. 1545 §14, 2010: Ord. 1367 §11, 1995).
2.38.120 Matters to be decided.
A hearing examiner shall hear and decide matters assigned to the examiner by the council, including but not limited to the following land use matters:
(1) Such matters as may be prescribed pursuant to the zoning code, including but not limited to rezone applications, these being deemed to be amendments to the zoning ordinance which are not of general applicability; variances; and conditional uses;
(2) Plat vacations or amendments, long plats, long subdivisions and redivisions of land excepting short plats;
(3) Such hearings required pursuant to the State Environmental Policy Act (Chapter 43.21C RCW) as may be required by the official charged with the responsibility for holding such a hearing; provided, that the substantive SEPA decision and the decision on the associated actions shall be made by the designated officials;
(4) Matters limited to action by the council to allow siting of a marijuana business shall not be referred to the hearings examiner.
(5) In applications relating to long plats, long subdivisions, State Environmental Policy Act, variances and conditional uses from city regulations related to the State Shoreline Management Act, variances from city regulations related to the State Growth Management Act and local critical areas ordinance, the application shall be forwarded directly to the hearing examiner and shall not be considered by the city council prior to a hearing examiner decision. (Ord. 1641 §2, 2022; Ord. 1601 §1, 2017: Ord. 1367 §12, 1995).
2.38.130 Recommendation--Final decision.
As to those matters which are assigned to the examiner by the mayor or council for hearing, by way of example and not by way of limitation, rezone applications, plat vacations or amendments, long plats, long subdivisions, and redivisions of land other than short plats, the decision of the examiner shall be a recommendation to the mayor and council. The mayor and council may adopt, amend and adopt, reject, reverse, or amend and reverse the findings, conclusions and recommendation of the examiner or remand the matter for further consideration.
As to the following decisions, the decision issued by the examiner shall be the final decision of the city on the particular application: variances and conditional uses. (Ord. 1367 §13, 1995).
2.38.140 Authority.
The authority granted to the examiner pursuant to this or any other section of this code shall in no way be deemed to be a limitation upon the authority and responsibility of the mayor and council which may be granted pursuant to the applicable provisions of any other portion or section of this code, as to the decisions of the examiner being designated as recommendations to the mayor and council subject to acceptance, rejection, or modification as provided for in this code. (Ord. 1367 §14, 1995).