Chapter 14.09
OPEN RECORD PUBLIC HEARINGS
Sections:
14.09.020 Responsibility of director for hearing.
14.09.030 Conflict of interest.
14.09.040 Ex parte communications.
14.09.050 Burden and nature of proof.
14.09.060 Order of proceedings.
14.09.010 General.
All open record public hearings, as may be required for project permit applications, shall be conducted in accordance with this chapter. (Ord. 99-026 § 1).
14.09.020 Responsibility of director for hearing.
The director shall:
A. Schedule an application for review and public hearing.
B. Give notice.
C. Prepare the staff report on the application, which shall be a single report stating all of the decisions made 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 state any mitigation required or proposed under the development regulations or the city’s authority under SEPA. 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. In the case of a limited administrative review project permit application, this report may be the permit.
D. Prepare the notice of decision, if required by the hearing body and/or mail a copy of the notice of decision to those required by this code to receive such decision. (Ord. 99-026 § 1).
14.09.030 Conflict of interest.
The hearing body shall be subject to the code of ethics and prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23 RCW, as the same now exist or as may be hereafter amended. (Ord. 99-026 § 1).
14.09.040 Ex parte communications.
A. Quasi-judicial land use decisions of the hearing body shall be subject to Chapter 42.36 RCW, Appearance of Fairness, as the same now exists or as may be hereafter amended.
B. No member of the hearing body may be disqualified by the appearance of fairness doctrine for conducting the business of his or her office with any constituent on any matter other than a quasi-judicial action then pending before the hearing body.
C. Prior to declaring as a candidate for public office or while campaigning for public office as defined by RCW 42.17.020(5) and (25), as now exist or as may be hereafter amended, no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine.
D. During the pendency of any quasi-judicial proceeding, no member of a decision-making body may engage in ex parte communications with opponents or proponents with respect to the proposal which is the subject of the proceeding unless that person:
1. Places on the record the substance of any written or oral ex parte communications concerning the decision or action;
2. Provides that a public announcement of the content of the communication and of the parties’ rights to rebut the substance of the communication shall be made at each hearing where action is considered or taken on the subject to which the communication related. This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or data from such parties relative to the decision if both the request and the results are a part of the record. Nor does such prohibition preclude correspondence between a citizen and his or her elected official if any such correspondence is made a part of the record when it pertains to the subject matter of a quasi-judicial proceeding.
E. Anyone seeking to rely on the appearance of fairness doctrine to disqualify a member of a decision-making body from participating in a decision must raise the challenge as soon as the basis for disqualification is made known to the individual. Where the basis is known or should reasonably have been known prior to the issuance of a decision and is not raised, it may not be relied on to invalidate the decision.
F. In the event of a challenge to a member or members of the hearing body which would cause a lack of a quorum or would result in a failure to obtain a majority vote as required by law, any such challenged member(s) shall be permitted to fully participate in the proceeding and vote as though the challenge had not occurred, if the member or members publicly disclose the basis for disqualification prior to rendering a decision. Such participation shall not subject the decision to a challenge by reason of violation of the appearance of fairness doctrine.
G. Except for legislative review actions, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or decision unless the member has reviewed the evidence received. (Ord. 99-026 § 1).
14.09.050 Burden and nature of proof.
Except for legislative actions, the burden of proof for demonstrating compliance with development regulations and consistency with SEPA is on the applicant. The project permit application must be supported by proof that it conforms to the applicable elements of the city’s development regulations, comprehensive plan and that any significant adverse environmental impacts have been adequately addressed. (Ord. 99-026 § 1).
14.09.060 Order of proceedings.
The order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate.
A. Before receiving information on the issue, the following shall be determined:
1. Any objections on jurisdictional grounds shall be noted on the record and if there is objection, the hearing body has the discretion to proceed or terminate.
2. Any abstentions or disqualifications shall be determined.
B. The presiding officer may take official notice of known information related to the issue, such as:
1. A provision of any ordinance, resolution, rule, officially adopted development standard or state law;
2. Other public records and facts judicially noticeable by law.
C. Matters officially noticed need not be established by evidence and may be considered by the hearing body in its determination. Parties requesting notice shall do so on the record. However, the hearing body may take notice of matters listed in subsection B of this section if stated for the record. Any matter given official notice may be rebutted.
D. The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner and circumstances of such view on the record.
E. Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.
F. When the presiding officer has closed the public hearing portion of the hearing, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided. (Ord. 99-026 § 1).