Chapter 16.50
CONDUCT OF THE PUBLIC HEARING
Sections:
16.50.020 Responsibility of director.
16.50.030 Announcements by hearing body.
16.50.040 Appearance of fairness/conflict of interest.
16.50.050 Ex parte communications.
16.50.070 Presenting and receiving evidence.
16.50.090 Continuation of public hearing.
16.50.010 General.
Public hearings on all applications not involving the hearing examiner shall be conducted by the hearing body in accordance with this chapter. Public hearings conducted by the hearing examiner shall be conducted in accordance with this chapter and the examiner’s adopted rules. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.020 Responsibility of director.
The director shall:
A. Schedule project applications for review and public hearing;
B. Provide the required notice;
C. Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall also describe any mitigation required or proposed under the city’s development regulations or SEPA authority. If the threshold determination, other than a determination of significance, has not been issued previously by the city, the report shall include or append this determination.
D. Prepare the notice of decision or findings, conclusions and decision, if required by the decision maker(s) and mail a copy of the same to those identified in PMC 16.50.100(D) as entitled to receive the decision.
E. For those administrative permit applications, the director shall issue a notice of decision on the application. The notice of decision shall issue within the deadline set forth in PMC 16.50.100(E) and be provided to those persons identified in that section. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.030 Announcements by hearing body.
A. At the commencement of the hearing, the hearing body shall orally provide the following information to those in attendance (and may also provide a written handout with this information):
1. The identification of the applicant(s), the application number, and a short summary of the nature of the application;
2. Identification of the applicable approval criteria and standards that apply to the application or appeal; and
3. A statement that testimony and evidence shall concern the approval criteria that the person testifying believes to apply to the decision. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.040 Appearance of fairness/conflict of interest.
A. The applicant and the participants in the public hearing are entitled to an impartial review authority as free from issues relating to appearance of fairness, conflicts of interest, or ex parte communications as reasonably possible. Therefore:
1. At the beginning of the public hearing, the hearing body chair shall ask the hearing body members whether they have any appearance of fairness, conflict of interest or ex parte communications to disclose;
2. No member of the hearing body will participate in any proceeding in which he or she has a direct or substantial financial interest. A member is deemed to have a direct or substantial financial interest if the matter before the hearing body involves any business in which the member is then employed, is serving or has served within the previous two years, or any business with which he or she is negotiating for, or has an arrangement or understanding concerning prospective partnership or employment. In addition, no member of the hearing body will participate in any proceeding in which a member of his or her family has a direct or substantial financial interest as defined in this subsection. A family member is defined as: a member’s spouse, brother, sister, child, parent, father-in-law, mother-in-law, or partner. Half or stepsibling or child relationships are deemed the same as whole siblings or children for the purpose of this subsection. Any actual or potential interest of the member, or of his or her family member(s), shall be disclosed at the hearing where the action is being taken. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.050 Ex parte communications.
At the beginning of the public hearing, hearing body members shall disclose the substance of any prehearing ex parte contacts (as defined below) concerning the application or appeal. Each member of the hearing body disclosing such contacts shall state whether the contact has impaired his or her impartiality or ability to vote on the matter and shall participate or abstain accordingly.
A. Members of the hearing body shall not:
1. Communicate directly outside of the public hearing on the matter with any applicant, appellant, opponent, proponent or other party to the proceedings, or representative of a party about any issue involved in a hearing; or
2. Consider as evidence in the public hearing on the matter any communication, report, or other materials which are not included in the administrative record compiled by the city in connection with a particular case, unless all participants are given the opportunity to respond to the evidence outside the record.
B. No decision or action of the hearing body shall be invalid due to ex parte contacts or bias resulting from ex parte contacts, if the person receiving the contact:
1. Places in the record the substance of any written or oral ex parte communications concerning the decision or action; and
2. Makes a public announcement at the outset of the public hearing regarding the communication and of the right of all participants to dispute the substance of the communication made. Prompt disclosure is required; therefore, this announcement must occur at the first hearing on this matter which takes place following the communication.
C. Communication between city staff and the hearing body is not considered an ex parte contact unless the city is the applicant for the project. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.060 Disqualification.
Disqualification of a member of the hearing body due to contacts or conflict may occur as follows:
A. A member of the hearing body may disqualify him/herself by stating the reason for the disqualification, and then waiting until all conflict of interest and appearance of fairness issues are resolved, to ensure that there will still be a quorum to hold the hearing.
B. Once a member of the hearing body identifies any conflict of interest and appearance of fairness issues, he or she may be challenged by anyone and asked to disqualify him/herself from the proceeding. The city attorney will rule on the challenge, if the member of the hearing body still desires to participate in the public hearing.
C. If a member of the hearing body disqualifies him/herself or is asked to disqualify him/herself under the procedure in subsection A or B of this section, and if there is still a quorum after such disqualification, the hearing body member shall leave the hearing room and not reappear until after the final vote on the final decision made by the hearing body.
D. If a quorum of the hearing body is lost through disqualification, then a quorum of those members present who declare their reasons for disqualification shall be requalified to make a decision. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.070 Presenting and receiving evidence.
A. The hearing body may set reasonable time limits for verbal presentations and may limit or exclude cumulative, repetitious, irrelevant, or personally derogatory testimony or evidence.
B. Members of the hearing body may visit the property and the surrounding area prior to the public hearing and may use the information obtained during the site visit to support their decision only as follows:
1. The members of the hearing body visiting the site may not engage in any ex parte communications with anyone while visiting the property; and
2. Any member of the hearing body who visited the site must disclose this fact at the beginning of the hearing, as well as (a) the time, manner and circumstances of the visit; and (b) any information obtained during the site visit. An opportunity must be provided during the public hearing for anyone to dispute this information.
C. The chair of the hearing body shall swear in all persons desiring to present testimony.
D. Information shall be received from the staff, the public, opponents, and proponents. Cross-examination or questioning of witnesses shall be allowed subject to the discretion of the hearing body chair.
E. The hearing body chair may be asked to take official notice of commonly known and accepted information. Information officially noticed need not be proved by submission of formal evidence to be considered by the hearing body. The hearing body, however, may take notice of matters set forth below at any time. Examples of information that may be officially noticed (and rebutted) are:
1. Ordinances, resolutions, rules, official adopted development standards, and state law;
2. Public records and facts judicially noticeable by law.
F. When the hearing body chair has closed the public hearing portion of the hearing, the hearing body may openly discuss the issue and may further question the staff or any person submitting information. An opportunity to present rebuttal information shall be provided if new information is presented during the questioning. When all evidence has been presented and all questioning and rebuttal completed, the presiding officer shall officially close the record and end the hearing.
G. No verbal testimony shall be accepted after the close of the public hearing, or once the hearing body begins its deliberations, unless specifically allowed by the hearing body upon motion by a party with notice to the public. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.080 Burden and nature of proof.
The burden of proof is on the proponent. The project permit application must be supported by substantial evidence that it conforms to the applicable criteria in the city’s comprehensive plan and development regulations, as well as applicable law. The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.090 Continuation of public hearing.
A. If the hearing body decides to continue the public hearing before the hearing body closes the portion of the hearing to public testimony, the public hearing shall be continued to a date, time and place established by the hearing body. An opportunity shall be provided at the continued hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the continued hearing, any person may request, before the conclusion of the continued hearing, that the record be left open for at least seven days, so that they can submit additional written evidence in response to the new written evidence.
B. If the hearing body leaves the administrative record open for additional written evidence, the record shall be left open for at least seven days after the hearing. Any extension of time to leave the administrative record open for additional written evidence shall be subject to the deadline for issuance of a final decision in PMC 16.50.100(E), unless the extension is requested or agreed to by the applicant in writing.
C. At the outset of the continued hearing, the hearing body shall present the announcements and follow the appearance of fairness/conflict of interest procedures set forth in PMC 16.50.040 and 16.50.050. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.100 Decision.
A. Generally. Following the public hearing and deliberations, the hearing body shall approve, conditionally approve, or deny the application.
B. Decision After an Open Record Hearing. The hearing body’s decision shall issue within 10 working days after close of the hearing, unless a longer period is agreed to by the parties. If the city is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision.
C. Notice of Decision Contents. The notice of decision issued by the director on an administrative application and the findings of fact and conclusions of law issued by the hearing body on a quasi-judicial or combination application shall include the following, as a minimum:
1. A list of all project permits included in the decision, including all permits being reviewed through the consolidated review process;
2. A date and description of the decision;
3. A statement of any threshold determination made under SEPA (Chapter 43.21C RCW);
4. The procedures for an administrative appeal, if any;
5. A statement that the affected property owners may request a change in property tax valuation notwithstanding any program of revaluation by contacting the King or Pierce County Assessor;
6. The duration of the permit approval and a statement summarizing the permit expiration and extension procedures (if any);
7. A statement that the complete project permit file, including findings, conclusions, and conditions of approval, if any, is available for review. The notice shall list the place that the file is available and the name and telephone number of the city representative to contact about reviewing the file.
D. Persons Entitled to Receive Notice of Decision. A notice of decision, or the written findings of fact and conclusions, shall be provided to the applicant, to any person who submitted written comments on the application (other than a signed petition), to any person who testified at the hearing, or any person who requested a copy of the decision, and to the King or Pierce County Assessor.
E. For project permit applications, the city shall issue a notice of decision within 120 days of the issuance of the determination of completeness on the application, unless the applicant has agreed to a different deadline or the deadline is otherwise extended.
F. In calculating the time periods for issuance of the notice of decision, the following periods shall be excluded:
1. Any period during which the applicant has been requested by the director to correct plans, perform required studies, or provide additional required information. The period shall begin from the date the director notifies the applicant of the need for additional information, until the date the director determines that the additional information satisfies the request for information, or 14 days after the date the additional information is provided to the city, whichever is earlier;
2. If the director determines that the information submitted is insufficient, the applicant shall be informed of the particular insufficiencies and the procedures set forth in subsection (F)(1) of this section for calculating the exclusion period shall apply;
3. Any period during which an environmental impact statement (EIS) is being prepared pursuant to Chapter 43.21C RCW and the city’s SEPA ordinance;
4. Any period for consideration and issuance of a decision for administrative appeals of project permits;
5. Any extension of time mutually agreed to in writing by the director and the applicant;
6. The time limits established in this subsection do not apply to applications that: (a) are not project permit applications (such as amendments to the comprehensive plan or a development regulation); (b) require siting approval of an essential public facility; (c) are substantially revised by the applicant, in which case the time period shall start from the date that a determination of completeness for the revised application is issued by the director. (Ord. 2050 § 1 (Exh. A), 2021).
16.50.110 Reconsideration.
A. Generally. Any person identified in PMC 16.60.030 as having standing to file an administrative appeal may request reconsideration of a decision of the hearing body which issues immediately after the open record public hearing on a project permit application described in this chapter.
B. Time to File. A request for reconsideration must be filed with the director within 10 calendar days of the hearing body’s written decision. Such requests shall be delivered to the director by mail (including email), by personal delivery, or by fax before 4:30 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 4:30 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were mailed or postmarked.
C. Computation of Time. For the purposes of computing the time for filing a request for reconsideration, the day the hearing body’s decision issued shall not be counted. If the last day of the reconsideration deadline is a Saturday, Sunday or holiday designated by RCW 1.16.050 or by city ordinance, then the reconsideration must be filed on the next business day.
D. Content of Request for Reconsideration. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee (which shall be the same as the administrative appeal fee) and contain the following information:
1. The name, address and phone number of the requestor;
2. Identification of the application and final decision which is the subject of the request for reconsideration;
3. The requestor’s statement of grounds for reconsideration and the facts upon which the request is based;
4. The specific relief requested;
5. A statement that the requestor believes the contents of the request to be true, followed by his/her signature and the date.
E. Effect of Filing. The timely filing of a request for reconsideration shall stay the hearing body’s decision until such time as the hearing body issues a decision on reconsideration. A person with standing to appeal the hearing body’s decision may file an appeal, regardless of whether he/she requests reconsideration of the hearing body’s decision.
F. Notice of Request for Reconsideration. The director shall provide mailed notice to all parties of record as defined in PMC 16.50.100(D) (Parties Entitled to Receive Notice of Decision) that a request for reconsideration has been filed.
G. Hearing Body’s Action on Reconsideration. The hearing body shall consider the request for reconsideration based on the administrative record compiled on the application up to and including the date of the hearing body’s decision. The hearing body may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the administrative record and the hearing body’s decision. The reconsideration decision may modify, affirm, or reverse the hearing body’s decision.
H. Notice of Final Decision on Reconsideration. The director shall issue a notice of final decision on reconsideration in the manner set forth in PMC 16.50.100 and such decision shall be provided to the people identified in PMC 16.50.100(D) and to the people identified in PMC 16.30.010(B).
I. Further Appeals. If no administrative appeal is allowed of the hearing body’s decision, and a request for reconsideration was timely filed, then any judicial appeal must be filed of the final decision on reconsideration according to Chapter 36.70C RCW. (Ord. 2050 § 1 (Exh. A), 2021).