Chapter 2.82
ABATEMENT HEARING OFFICER
Sections:
2.82.030 Conflict of interest.
2.82.050 Organization and rules.
2.82.080 Determination of completeness.
2.82.090 Hearings – Closed record.
2.82.140 Appeal from hearing officer’s decision.
2.82.010 Definition.
“Abatement hearing officer” and “hearing officer” shall mean the person appointed by the city of Port Orchard to hear appeals of dangerous or unfit building, nuisance, or other abatement orders of the city. Unless the context requires otherwise, the terms “abatement hearing officer” and “hearing officer” shall include “hearing officer pro tem.” (Ord. 035-19 § 5).
2.82.020 Authority.
The abatement hearing officer shall be appointed and compensated as set forth in Chapter 2.08 POMC, and shall have the powers and duties as set forth herein. The hearing officer shall be appointed based on their qualifications for the duties of the office and shall have the necessary training and experience to conduct administrative or quasi-judicial hearings, and to render decisions according to law. The hearing officer shall suggest a hearing officer pro tem to serve in the event of their absence or disability, or in the event of a conflict of interest. The appointment of a hearing officer pro tem is expected to be infrequent in nature. The hearing officer pro tem will be entitled to the same compensation as the hearing officer during their term of service. (Ord. 017-23 § 1 (Exh. A); Ord. 035-19 § 5).
2.82.030 Conflict of interest.
(1) The hearing officer shall not conduct or participate in any hearing or decision in which:
(a) The hearing officer has a direct or indirect personal interest; or
(b) The hearing officer has a beneficial interest, directly or indirectly, in any aspect of the matter on which they are called upon to issue a decision; or
(c) The hearing officer has a direct or indirect familial interest which might influence or interfere with their decision-making process or give rise to a violation of the appearance of fairness doctrine as codified in Chapter 42.36 RCW, as written or hereafter amended, and the common law.
(2) The hearing officer shall disclose matters involving ex parte contacts, conflicts of interest or appearance of fairness issues prior to or at the beginning of any matter or immediately upon becoming aware of the need for such disclosure. The hearing officer shall recuse themself if the hearing officer believes their review of the matter would represent a conflict of interest or violate the appearance of fairness doctrine as set forth herein.
(3) In the event the hearing officer recuses themself, a hearing officer pro tem will be appointed, according to POMC 2.82.020. (Ord. 017-23 § 1 (Exh. A); Ord. 035-19 § 5).
2.82.040 Improper influence.
No city official either elected or appointed shall attempt to influence the hearing officer in any matter officially before them so as to constitute misconduct by a public officer under Chapter 42.20 RCW, as written or hereafter amended, or that would constitute a violation of the appearance of fairness doctrine as codified in Chapter 42.36 RCW, as written or hereafter amended. (Ord. 017-23 § 1 (Exh. A); Ord. 035-19 § 5).
2.82.050 Organization and rules.
(1) Organization. The hearing officer operates independently of any department of the city, but will receive such administrative assistance from city staff as is necessary to carry out the functions of their office.
(2) Rules. The hearing officer shall have the power to prescribe rules not in conflict with this chapter for procedural matters, including adopting procedures for prehearing conferences, the scheduling and conduct of hearings, the submission of legal motions, briefs and other written documents, the scheduling of discovery, issuance of subpoenas for the attendance of witnesses or the production of information, receipt of evidence, and issues relating to settlement. (Ord. 017-23 § 1 (Exh. A); Ord. 035-19 § 5).
2.82.060 Powers.
(1) General. The hearing officer shall receive and examine all information in the official file, conduct hearings and administer preparation of the official record, and issue a written decision on the matter. The hearing officer is authorized to hear appeals of abatement orders issued by the city and to affirm, rescind, or modify, in whole or in part, any such abatement order, consistent with federal, state and local law.
(2) Specific. In addition to the general authority as granted herein, the hearing officer shall have the authority granted to him elsewhere in the Port Orchard Municipal Code.
(3) The city council may, from time to time, grant to the hearing officer additional powers and authority as the council deems appropriate, consistent with state law and the city code, ordinances and resolutions. (Ord. 035-19 § 5).
2.82.070 Notice of appeal.
(1) The notice of appeal shall be in writing, be accompanied by the required appeal fee, and contain the following information:
(a) Appellant’s name, address and phone number;
(b) A statement describing appellant’s standing to appeal;
(c) Identification of the order which is the subject of the appeal;
(d) Appellant’s statement of grounds for appeal and the facts upon which the appeal is based;
(e) The specific relief sought;
(f) A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.
(2) Any notice of appeal that does not contain all of the required information, or otherwise does not meet the requirements of this chapter, shall be deemed incomplete and shall be rejected. (Ord. 035-19 § 5).
2.82.080 Determination of completeness.
Within five business days of the filing of an appeal, the hearing officer shall make an initial review of the notice of appeal and, if it is incomplete, shall notify the appellant of the deficiencies in the appeal. (Ord. 035-19 § 5).
2.82.090 Hearings – Closed record.
(1) Hearings shall be based on the record of the administrative hearing before the director of community development or public works. The record includes the written decision of the director, a transcript or recording of the proceedings, and copies of any exhibits that were admitted into the record at the hearing.
(2) No new testimony or other evidence will be accepted by the hearing officer except relevant information that, in the opinion of the hearing officer, was improperly excluded by the director. Appellants who believe that information was improperly excluded must specifically request, in writing prior to the hearing, that the information be made part of the record. The request shall describe the information excluded, its relevance to the issues appealed, the reason(s) that the information was excluded by the director, and why the director erred in excluding the information. No reference to excluded information shall be made in any presentation to the hearing officer on the merits, written or oral, until the hearing officer has determined that the information should be admitted.
(3) Parties to the appeal may present written and/or oral arguments. Argument shall describe the particular errors committed by the director, with specific references to the administrative record. (Ord. 035-19 § 5).
2.82.100 Rules of evidence.
The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the hearing officer. (Ord. 035-19 § 5).
2.82.110 Burden of proof.
The appellant has the burden of proof to establish, by a preponderance of the evidence, that the abatement order was issued in error, or that equity requires the deletion or modification of one or more of the requirements set forth in the abatement order to accomplish the removal or correction of the violating condition(s). (Ord. 035-19 § 5).
2.82.120 Notice of hearing.
The planning department shall, in coordination with the hearing officer, be responsible for assigning a date and assuring due notice of the hearing on the matter to come before the hearing officer. Notice of the time, place, location, and subject matter of the hearing shall be consistent with applicable law. Such notice shall be given a minimum of 10 days prior to the scheduled hearing. (Ord. 035-19 § 5).
2.82.130 Decision.
(1) Time for Issuance of Recommendation/Decision. Unless a longer period is agreed to by the appellant, the examiner shall issue a recommendation or decision within 10 working days after the close of the hearing and the record.
(2) Decision. A decision shall set forth findings of fact, conclusions, and decision based on the record. Findings shall be supported by substantial evidence in the record, and conclusions shall follow from the findings. The decision will specify that the abatement order has been affirmed, rescinded, or modified and, if modified, detail the requirements for removing or correcting the violating conditions. The decision will further specify the parties’ appeal rights.
(3) Notice of Decision. Not later than five calendar days following the issuance of the hearing officer’s decision, copies thereof shall be mailed to the applicant, to parties of record and to any person who requested a copy of the decision. The original decision shall be maintained in the official record.
(4) Transcript. A transcript of the hearing officer’s findings of fact shall be made available to the owner or other party in interest upon demand. (Ord. 035-19 § 5).
2.82.140 Appeal from hearing officer’s decision.
All appeals of decisions of the hearing officer will be to the superior court and must be filed with the superior court no later than 30 days after the service of the hearing officer’s decision. (Ord. 035-19 § 5).