Chapter 18.40
HEARING EXAMINER
Sections:
18.40.020 Creation of land use hearing examiner.
18.40.030 Appointment and terms.
18.40.060 Freedom from improper influence.
18.40.070 Conflict of interest.
18.40.110 Limited jurisdiction.
18.40.130 Procedures for conduct of hearing appeals.
18.40.150 Method and form of decision.
18.40.160 Examiner’s yearly report.
18.40.180 Board of adjustment.
18.40.010 Purpose.
The purpose of this chapter is to establish a system of applying land use regulatory controls which will best satisfy the following basic needs:
(1) To separate the land use regulatory function from the land use planning process;
(2) To ensure procedural due process and adherence to the appearance of fairness doctrine in land use regulatory hearings; and
(3) To provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making processes for land use matters. (Ord. 1375 § 2, 2004).
18.40.020 Creation of land use hearing examiner.
The office of land use hearing examiner, hereinafter referred to as “examiner,” is hereby created. The examiner shall interpret, analyze, review and implement land use regulations as provided in this chapter or by other ordinance. Unless the context requires otherwise, the term “examiner” as used herein shall include examiners pro tem. (Ord. 1375 § 3, 2004).
18.40.030 Appointment and terms.
The mayor, subject to city council approval, shall appoint the examiner for terms which shall initially expire one year following the date of original appointment and thereafter expire three years following the date of each reappointment. Such appointment may be on the basis of a professional services contract. The mayor, subject to city council approval, may also, by professional service contract, appoint for terms and functions deemed appropriate by the board, examiners pro tem to serve in the event of absence or inability to act of the examiner or as the examiner’s hearing schedule requires. (Ord. 1375 § 4, 2004).
18.40.040 Qualifications.
The examiner and examiners pro tem shall be appointed solely with regard to their qualifications for the duties of such office and shall have such training and experience as will qualify them to conduct administrative or quasi-judicial hearings on regulatory matters and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointive office or position in city government. The examiner shall be an attorney licensed to practice in the state of Washington. (Ord. 1375 § 5, 2004).
18.40.050 Removal.
An examiner may be removed from office for cause by majority vote of the city council. (Ord. 1375 § 6, 2004).
18.40.060 Freedom from improper influence.
No person, including city officials, elective or appointive, shall attempt to influence an examiner in any pending matter except at a public hearing duly called for such purpose, or to interfere with an examiner in the performance of his/her duties in any other way; provided, that this section shall not prohibit the city attorney from rendering legal services to the examiner upon request. (Ord. 1375 § 7, 2004).
18.40.070 Conflict of interest.
No examiner shall conduct or participate in any hearing, decision, or recommendation in which the examiner has a direct or indirect personal business/other interest, or concerning which the examiner has had substantial pre-hearing contacts with proponents or opponents. Nor, on appeal from or review of an examiner decision, shall any member of the city council who has such an interest or has had such contacts participate in consideration thereof. (Ord. 1375 § 8, 2004).
18.40.080 Organization.
The office of the examiner shall be under the administrative supervision of the examiner and shall be separate from and not part of the department of development services. (Ord. 1375 § 9, 2004).
18.40.090 Rules.
Subject to the limitations of this chapter, the examiner shall prescribe rules and regulations for the scheduling and conduct of hearings and other procedural matters related to the duties of his/her office. Such rules may add additional rules to those in this chapter or supplement or clarify rules of this chapter. (Ord. 1375 § 10, 2004).
18.40.100 Powers.
The examiner shall receive and examine available information, conduct public hearings and prepare a record thereof, and/or enter decisions as provided for as follows:
(1) Final Decisions (Type I and Type II). The decision of the hearing examiner on Type I and Type II decision appeals shall be final.
(2) Final Decisions (Type III). The decision of the examiner on the following matters shall be final:
(a) Conditional use permits;
(b) Variances.
(3) Final Decisions (Type IV). The hearing examiner shall conduct the public hearing and issue a final decision for certain site plan approvals designated as Type IV in Chapter 19.48 OHMC.
(4) Preliminary plat approval hearings shall be heard by the hearing examiner followed by a decision of the hearing examiner. (Ord. 1949 § 4, 2022; Ord. 1891 § 1, 2019; Ord. 1375 § 11, 2004).
18.40.110 Limited jurisdiction.
The examiner when directed by the council shall review zoning boundary changes associated with annexation or comprehensive plan amendments. (Ord. 1375 § 12, 2004).
18.40.120 Form of appeal.
Unless otherwise specified, any person entitled to an appeal of a decision made by an official, agency or department of the city may appeal from the notice and order or any action complained of by filing at the office of the city clerk a written appeal containing:
(1) A caption reading: “Appeal of _________,” and giving the names of all appellants participating in the appeal;
(2) A brief statement setting forth the legal interest of each of the parties applying for review in the matter in the notice and order and/or part thereof;
(3) A brief statement in ordinary and concise language of that specific order or action protested, together with any material facts claimed to support the contentions of the appellant;
(4) A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed and how the protested order or action would be reversed, modified or otherwise set aside;
(5) The signatures of all parties named as appellants and their official mailing addresses;
(6) The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
The appeal shall be filed within 14 days from the date of such order or action. (Ord. 1375 § 13, 2004).
18.40.130 Procedures for conduct of hearing appeals.
(1) Record. A record of the entire proceedings shall be made by any means of permanent recording determined to be appropriate by the reviewing agency.
(2) Tape Recording. If a means other than tape recording is used, the proceedings at the hearing shall also be reported by a taped recording if requested by any party thereto.
(3) A transcript of the proceedings shall be made available to all parties upon request and upon payment of the fee prescribed therefor. Such fees may be established by the city administrator, but shall in no event be greater than the cost involved and, if done by a city employee, costs of using such employee to transcribe the work including salary, benefits and overhead.
(4) Continuances. The examiner may grant continuances for good cause shown.
(5) Oaths – Certification. In any proceedings under this chapter, the hearing examiner has the power to administer oaths and affirmations and to certify to official acts.
(6) Reasonable Dispatch. The examiner and his or her representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives. (Ord. 1375 § 14, 2004).
18.40.140 Conduct of hearing.
(1) Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
(2) Oral Evidence. Oral evidence shall be taken only on oath or affirmation.
(3) Public Records of the City of Oak Harbor. Public records of the city shall be admissible in evidence.
(4) Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
(5) Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.
(6) Parties. The hearing examiner shall provide rules for:
(a) The calling and examining of witnesses on any matter relevant to the issues of the hearing;
(b) The introduction of documentary and physical evidence;
(c) The cross-examination of opposing witnesses;
(d) The impeachment of witnesses;
(e) Any rebuttal evidence;
(f) Issues of representation.
(7) Official Notice – What May be Noticed. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or of official records of the city council, its ordinances or resolutions or the rules and regulations of the city’s department.
Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein, or appended thereto.
(8) Opportunity to Refute. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of which refutation to be determined by the council or hearing examiner.
(9) Inspection of the Premises. The examiner may inspect any premises involved in the matter before him/her during the course of the hearing; provided, that:
(a) Notice of such inspection shall be given to the parties before the inspection is made;
(b) The parties are given an opportunity to be present during the inspection; and
(c) The examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the hearing examiner. (Ord. 1375 § 15, 2004).
18.40.150 Method and form of decision.
(1) Form of Decision. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to be complied with.
(2) Effective Date of Decision. The effective date of the decision shall be as stated therein. (Ord. 1891 § 2, 2019; Ord. 1375 § 16, 2004).
18.40.160 Examiner’s yearly report.
The examiner shall report yearly, in writing, to the planning commission and the city council. Each yearly report shall include a summary of the examiner’s decisions since the last report and any recommendations the examiner may have for improving the city’s land use regulatory framework.
The examiner shall meet with the planning commission and the city council at a public meeting at least annually for the purpose of reviewing the administration of the city’s land use policies and regulatory ordinances. Such meetings may be held on an annual basis. (Ord. 1375 § 17, 2004).
18.40.170 Effective date.
The ordinance codified in this chapter shall take effect and be in force on June 1, 2004. (Ord. 1375 § 18, 2004).
18.40.180 Board of adjustment.
All reviews assigned to the board of adjustment by the Oak Harbor Municipal Code are hereby assigned to the land use hearing examiner. (Ord. 1375 § 19, 2004).
18.40.190 Repeal.
OHMC 18.50.010, 18.50.020, 18.50.030, 18.50.040, 18.50.050, 18.50.060 and 18.50.070 are hereby repealed; provided, all scheduled appeals, variances and conditional uses that are before the board at the effective date of the ordinance codified in this chapter shall be heard by the planning commission. (Ord. 1375 § 20, 2004).