Chapter 2.22 HEARING EXAMINER

The ordinance codified in this chapter shall be known as the “land use hearing examiner ordinance,” or “hearing examiner ordinance,” may be cited as such, and will hereinafter be referred to as “this chapter.” (Ord. 3-1994)

2.22.020 Purpose.

A. The purpose of this chapter is to provide a hearing examiner system in furtherance of the County Home Rule Charter to satisfy the following needs:

1. Provide an efficient, integrated hearing system to administer land use regulations and decisions pursuant to SJCC Title 18 and decisions of the County health officer pursuant to SJCC Title 8;

2. Render land use regulatory and appeal decisions on behalf of the County council and appeal decisions on behalf of the board of health;

3. Provide a greater degree of fairness and due process in regulatory and appeal hearings involving land use and decisions of the health officer;

4. Separate the County’s land use planning program from the land use regulatory process; and

5. Protect the community’s general health, safety, and welfare as provided for in Chapter 36.70 RCW.

B. The administrator under this chapter shall be the director of the department of health and community services for all appeals of decisions of the health officer pursuant to SJCC Title 8 and the director of San Juan community development and planning for all other appeals. (Ord. 8-2011 § 1; Ord. 30-2008 § 2; Ord. 3-1994)

2.22.030 Establishment.

The office of hearing examiner is hereby created pursuant to RCW 36.70.970 and San Juan County Charter Section 3.70. The hearing examiner shall interpret, review, and implement land use regulations as provided by ordinance and may perform such other quasi-judicial functions or conduct other nonlegislative hearings as are delegated by the County council. Unless the context requires otherwise, the term “hearing examiner” as used herein shall include examiners pro tem. (Ord. 30-2008 § 3; Ord. 3-1994)

2.22.040 Appointment.

The County council shall appoint the hearing examiner for terms which shall initially expire one year following the date of original appointment and thereafter expire up to two years following the date of each reappointment, subject to the terms of an executed contract. The hearing examiner shall serve under a professional services contract. The County council may also, by professional services contract, appoint one or more examiner pro tem for terms and functions deemed appropriate by the County council, to serve in the event of absence or inability to act of the examiner. (Ord. 30-2008 § 4; Ord. 3-1994)

2.22.050 Qualifications.

The hearing examiner and examiner(s) 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 other functions conferred upon them by ordinance. Examiners and examiners pro tem shall hold no other appointed or elected public office or position in San Juan County government. (Ord. 3-1994)

2.22.060 Removal.

A hearing examiner may be removed from office by a majority vote of the County council, subject to the terms of the executed professional services contract between the County council and the hearing examiner. (Ord. 30-2008 § 5; Ord. 3-1994)

2.22.070 Freedom from improper influence.

No person, including County elected and appointed officials, shall attempt to influence an examiner in any pending matter except at a public hearing duly called for such purpose, nor interfere with an examiner in the performance of duties in any way; provided, that this section shall not prohibit the County prosecutor from rendering legal services to the examiner upon request. (Ord. 3-1994)

2.22.080 Conflict of interest.

The examiner shall not conduct or participate in any hearing, decision or recommendation in which the examiner has a direct or indirect personal, business, financial or other interest which might exert such influence upon the examiner or interfere with the examiner’s decision making process, or concerning which the examiner has had substantive prehearing contacts with proponents or opponents. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict. The examiner pro tem shall perform the duties of hearing examiner whenever a conflict of interest exists or the hearing examiner is otherwise unable to perform the duties of the office. (Ord. 3-1994)

2.22.090 Rules.*

The rules and regulations for the conduct of public hearings before the examiner shall be adopted and thereafter amended from time to time by the County council by resolution or ordinance, and thereafter codified and made part of the County code. (Ord. 30-2008 § 6; Ord. 3-1994)

* Code reviser’s note: See Article II of this chapter, Rules and Procedures.

2.22.100 Authority.

A. The hearing examiner shall receive and examine available information, conduct public hearings, prepare a record thereof, and enter findings of fact and conclusions based upon those facts. Those decisions of the hearing examiner shall represent the final decision upon the following matters:

1. Shoreline substantial development permits, shoreline conditional use permits, and shoreline variances;

2. Conditional use permits, subdivisions, and binding site plans for more than four lots;

3. Appeals of matters arising pursuant to SJCC Title 15 (building and fire codes);

4. Appeals from decisions of the CD&P director on boundary line modifications, simple land divisions, provisional uses, short subdivisions, binding site plans (up to four lots), temporary uses (Level II), discretionary uses, and other development permits issued by the CD&P director;

5. Appeals from administrative determinations made by the CD&P director pursuant to SJCC 18.10.030;

6. For project actions, appeals from decisions of the responsible official under SEPA;

7. Matters that have been consolidated by the CD&P director for review and approval by the hearing examiner; and

8. Appeals from decisions of the health officer pursuant to Chapter 8.22 SJCC.

B. Decisions Final. The decision of the hearing examiner on all matters shall be final and not subject to appeal to the County council unless the County council has adopted procedures for the discretionary review of decisions of the hearing examiner. Decisions on shoreline permits are subject to approval by the Washington Department of Ecology pursuant to RCW 90.58.140, WAC 173-27-130 and SJCC 18.80.110. Final decisions may be appealed to superior court or to state boards as provided by law. (Ord. 8-2011 § 2; Ord. 30-2008 § 7; Ord. 9-2002 § 1; Ord. 3-1994)

2.22.105 Hearing examiner clerk – Duties and responsibilities.

The CD&P director shall designate a person to serve as the clerk of the hearing examiner. The hearing examiner clerk shall have the following duties and responsibilities:

A. Acceptance and marking of written testimony and exhibits, and maintenance of the record of the proceedings. These items constitute the official record of the hearing examiner proceedings;

B. Under the general direction of the hearing examiner, scheduling hearings or other actions before the hearing examiner, in cooperation with the examiner and the CD&P director; and

C. Under the supervision of the hearing examiner, preparation, certification, and transmittal of the official record of the proceedings when an appeal of an examiner’s decision is filed. (Ord. 30-2008 § 8; Ord. 26-2002 § 7; Ord. 3-1994)

2.22.110 Submittal of applications.

All applications and matters to be submitted to the examiner shall be submitted to the administrator as specified by the ordinance governing the application. The administrator shall accept such applications only if the applicable filing requirements are met. The administrator, in coordination with the examiner, shall assign a date of public hearing for each submittal, in accordance with the ordinance governing the application or appeal. (Ord. 9-2002 § 2; Ord. 3-1994)

2.22.120 Report and recommendation of the administrator.

When an application has been scheduled before the hearing examiner, the administrator shall coordinate and assemble the comments and recommendations of other County departments and governmental agencies having an interest in the application and shall prepare a report summarizing the factors involved and the planning department findings, conclusions, and recommendations. At least 10 days prior to the scheduled hearing, the report shall be filed with the examiner and copies mailed to the applicant and appellant, and made available for any interested party. (Ord. 9-2002 § 3; Ord. 3-1994)

2.22.130 Multiple applications.

The examiner may consider two or more applications relating to a single project concurrently, and the findings of fact, conclusions and decision on each application may be covered in one written decision. (Ord. 3-1994)

2.22.140 Time of meetings.

A. Notice of the time and place of the public hearing shall be given as provided in the ordinance governing the application or appeal.

B. The hearing examiner shall conduct public hearings two days each month, as necessary except during November and December, when only one hearing will be held unless a second hearing is necessary due to the number of agenda items. Hearings shall take place as specified in the hearing examiner contract; provided, that the hearings days shall be consistent from month to month. The hearing examiner may schedule special meetings and continued meetings, as deemed necessary. (Ord. 3-1994)

2.22.150 Decisions.

Decisions shall be rendered and transmitted in accordance with the ordinance requirements governing the application or appeal. Pursuant to RCW 36.70.970, hearing examiner decisions shall be in writing and shall include findings and conclusions, based on the record, to support the decision. The findings and conclusions shall also set forth the manner in which the decision would carry out and conform to the County’s Comprehensive Plan and development regulations (if applicable).

If an application is approved, the hearing examiner may attach conditions necessary to ensure compliance with the County Comprehensive Plan and Unified Development Code. Examples of conditions include, but are not limited to: additional setbacks, screening, restrictive covenants, notices to title, easements, dedications, rights-of-way, performance bonds, and, when supported by the appropriate environmental review, reduction in the density on the parcel, and other measures to mitigate adverse environmental impacts.

Each decision of a hearing examiner shall be rendered within the time required by state statutes following conclusion of all testimony and hearings and the closing of the record, unless a longer period is mutually agreed to in writing by the applicant and the hearing examiner. (Ord. 30-2008 § 9; Ord. 3-1994)

2.22.160 Appeals.

Repealed by Ord. 14-2000. (Ord. 3-1994)

2.22.170 Effective date of decision.

Hearing examiner decisions become effective when mailed or such later date in accordance with the laws and ordinance requirements governing the matter under consideration. Before becoming effective, shoreline permits are subject to review and approval by the Washington Department of Ecology pursuant to RCW 90.58.140, WAC 173-27-130 and SJCC 18.80.110. (Ord. 30-2008 § 10; Ord. 9-2002 § 4; Ord. 3-1994)

2.22.180 BOCC action on appeals.

Repealed by Ord. 14-2000. (Ord. 3-1994)

2.22.190 Examiner reports.

The hearing examiner shall report in writing to the County council and director of the community development and planning department at least annually for the purpose of reviewing the administration of the County’s land use policies and regulatory ordinances. Such report shall include a summary of the examiner’s decisions within that year. (Ord. 30-2008 § 11; Ord. 9-2002 § 5; Ord. 3-1994)

Article II. Rules and Procedures

2.22.200 General.

A. Introduction and Scope of Rules. These rules apply to all hearings that are required by the San Juan County Code to be held before the hearing examiner and shall serve as guidance when the hearing examiner is given the duty to conduct hearings on other subjects. These rules should be considered with Article I of this chapter, which contains provisions regarding the establishment and duties of the hearing examiner. The criteria for consideration of land use decisions are found in SJCC Title 18 and, most often, in Chapter 18.80 SJCC. These hearing examiner rules have been approved by the County council in Resolution No. 25-2011.

Public testimony is encouraged in all permit hearings but the hearing examiner is concerned not with the popularity of the proposal but with whether it conforms to criteria for approval under the applicable ordinance. The hearing examiner decides matters on the merits, based on the preponderance of the evidence. The decisions of the hearing examiner are final unless appealed. Failure of the hearing examiner to follow these rules shall not serve as grounds for invalidation of the decision, but the hearing examiner is expected to apply these rules to the best of his or her ability.

B. Definitions.

1. “Appellant” means a person, organization, association or other similar group who files a complete and timely appeal to the hearing examiner as set forth in Article I of this chapter.

2. “Department” means the San Juan County department of community development and planning or its successor.

3. “Notice of decision” means a written document that communicates a decision of the hearing examiner.

4. “Participant” means any individual, partnership, corporation, association, or public or private organization that has submitted public comment before the hearing examiner.

5. “Party of record” means:

a. The permit applicant;

b. The appellant (if different that the permit applicant); and

c. The County (if different than the appellant); and

d. Any person or entity who has submitted timely written or verbal testimony.

6. “Record” means the oral testimony and written exhibits submitted at the hearing before the hearing examiner. The audio recording of the proceeding and/or an accurate written transcription thereof shall be included as part of the record.

7. “SJCC” or “code” means the San Juan County Code.

C. Organization Representative Required. When a group of people, organization, corporation, or other entity participates in a hearing, one person is to be designated to be its representative and inform the hearing examiner in writing of the name, address and telephone number of that designated representative. The rights of such participant shall be exercised by the person designated as the representative. Except as otherwise provided in these rules, notice or other communication to the representative is considered to be notice or communication to the organization.

D. Powers of Hearing Examiner. The hearing examiner shall preside over the hearing. The hearing examiner shall have all of the authority and duties granted to the hearing examiner in state statutes, the County code, and other County ordinances. Included in the duties of the hearing examiner are the following: to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. The hearing examiner has all powers necessary to that end, including the following:

1. To administer oaths and affirmations;

2. To rule upon offers of proof and receive evidence;

3. To regulate the course of the hearings and the conduct of the parties and their agents;

4. To consolidate matters under consideration for hearing whenever the interests of justice and efficiency will be served or as required by the County code;

5. To question any [authorized] participant at the hearing;

6. To hold conferences for settlement, simplification of the issues, or any other proper purpose;

7. To require brief on legal issues;

8. To consider and rule upon all procedural and other motions appropriate to the proceedings; and

9. To make and file decisions and recommendations.

E. Conflict with County Code or State Law. These rules of procedure are adopted to supplement the requirements of the County code, state law and procedural due process. In the event that there are any conflicts between these rules and the provisions of the County code, state law or procedural due process, the applicable provisions of the County code, state law or procedural due process shall prevail.

F. Nature of Proceedings.

1. Frequency. Hearings before the hearing examiner shall be held at the time and place specified in the notice of hearing. Each matter shall be noted to commence at a particular time. Once commenced, a hearing may be continued by the hearing examiner for good cause.

2. Format. The format for a hearing will be of an informal nature yet designed in such a way that the evidence and facts relevant to a particular proceeding will be easily ascertainable by a reviewing body. The format will allow development of a record consistent with these rules.

3. Site Visit. Site visits may be helpful in understanding evidence that has been or might be presented at a hearing. When deemed necessary by the hearing examiner, the hearing examiner may inspect the site before or after a hearing. If the hearing examiner intends to conduct a post-hearing inspection, he or she shall notify the parties of record.

4. Record of Hearing. Hearings shall be electronically recorded and such recordings shall be a part of the official case record. No minutes of the hearing will be required, except that the list of witnesses testifying and exhibits offered and/or entered shall be maintained throughout the proceedings. Written transcripts of recorded proceedings are the responsibility of the person desiring the transcript at his or her own cost.

5. Computation of Time. In the computation of any period of time prescribed or allowed in any manner by the hearing examiner or County code, the day from which the time period begins to run shall not be included. When the last day of the period so computed is a Saturday, Sunday or a County recognized holiday, the period shall run until the end of the next following business day.

6. Filing and Service.

a. Filing occurs when documents are submitted to the hearing examiner clerk at the department. Documents may be submitted by mail, personal delivery, fax, or email. Filing is complete upon receipt. Courtesy copies may be sent directly to the hearing examiner. Service by mail will be deemed complete if postmarked three days before the due date.

b. Documents required to be served on another party of record may be delivered personally, transmitted by facsimile or email, or sent by regular mail. Service must be complete by 4:30 p.m. on the day it is due. In the case of regular mail, service will be deemed complete if postmarked three days before the due date.

c. Except for final decisions, every party of record represented by another person and every participant represented by another person consents to service on the representative.

d. At least 10 days prior to the hearing, the staff member assigned to the matter shall file a written analysis (“staff report”) with the hearing examiner, along with all documents from the file he or she determines are required for review of the matter. The staff report and an identification of the documents shall be mailed to the applicant and to the appellant(s), if different from the applicant. Any party may inspect the department’s file and submit additional documents to the hearing examiner.

7. Communications with Hearing Examiner. Any written or verbal communication, made directly or indirectly with or by the hearing examiner, that occurs outside of the hearing and in the absence of other participants is an ex parte communication. Ex parte communications are prohibited, except those communications regarding written submissions that are copied to all other parties of record or procedural matters. If an ex parte communication is prohibited by these rules and is recognized after it occurs, a written statement of the communication shall be made or the statement shall be disclosed during the hearing with an opportunity for parties of record to respond.

8. Appearance of Fairness. Proceedings before the hearing examiner are quasi-judicial in nature and, therefore, the appearance of fairness doctrine applies. At the commencement of the hearing or prior to commencement, if known, the hearing examiner and parties of record are required to disclose any fact that may affect the ability of the hearing examiner to issue a fair and impartial decision.

9. Hearing Examiner Pro Tem. In the event the hearing examiner is unable to serve, a “hearing examiner pro tem” will be selected randomly from a list established by the County council for this purpose.

10. Termination of Jurisdiction. The jurisdiction of the hearing examiner ends when the hearing examiner issues a final decision in the matter and the time limit for all appeals has been exhausted. All prehearing orders and nonfinal decisions of the hearing examiner are subject to reconsideration and correction.

11. Consolidation of Appeal Hearing with Permit Hearing. When an appeal hearing is consolidated with a permit hearing, the hearing examiner may segregate testimony in the hearing into appeal and permit testimony. The format for each of the segregated portions of the testimony may individually follow the formats applicable to permit and appeal hearings, as required below. (Res. 25-2011 Exh. A)

2.22.210 Features common to all hearings.

A. Oath. All testimony shall be taken under oath or affirmation.

B. Recording. Hearings shall be electronically recorded and the recordings shall be made a part of the record. Copies of the electronic recordings shall be made available on request upon payment of the costs of reproduction.

C. Evidence. Technical rules of evidence will not be applied. The key requirements for evidence will be relevance and reliability. Relevant and reliable evidence will be admitted if it possesses probative value commonly accepted by reasonable persons in the conduct of their affairs. The hearing examiner may take judicial notice of facts generally known or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Personal attacks shall not be tolerated, unless it is demonstrated that there is no other manner in which relevant evidence can be presented.

D. Exhibits. Documents, photographs and physical evidence will be admitted as exhibits as determined by the hearing examiner and each will be assigned an exhibit number.

E. Staff Report or Analysis. The staff report or staff analysis produced by the department will be admitted as an exhibit in every hearing.

F. Testimony – How Presented. Testimony may be presented orally, in writing, or both. Persons giving expert testimony shall be subject to questioning by both parties of record and by the hearing examiner. When testimony is presented only in writing, the hearing examiner has discretion to leave the record open for written responses by any party of record. The hearing examiner is granted discretion to allow or disallow testimony by telephone or other means that can be heard or reviewed by all parties of record.

G. Limits on Testimony. The hearing examiner may impose reasonable limitations on the nature and length of testimony. In so doing, the hearing examiner shall give consideration to:

1. The expeditious completion of the hearing.

2. The need to provide all parties of record a fair opportunity to present their cases.

3. Accommodating the desires of members of the public to be heard, when public testimony is taken.

At the hearing examiner’s discretion, irrelevant or unduly repetitious testimony may be excluded. If all testimony cannot be presented in the time available, the hearing shall be continued.

H. Burden of Proof. For an application to be approved, a preponderance of the evidence presented at the hearing must support the conclusion that the application meets the legal decision criteria that apply. The applicant shall have the burden of proof in a pre-decision hearing. The County shall have the burden of proof in a code enforcement hearing. For an administrative decision to be reversed or modified, the appellant has the burden by a preponderance of the evidence to show that the legal decision criteria are erroneously applied by the decision maker. In appeals of procedural matters under SEPA, the determinations of the responsible official shall be entitled to substantial weight.

I. Expert Testimony. Affidavits, declarations or letters containing expert opinion will generally be admitted without the presence of the expert absent objection from the parties of record. Objections must be made at the time the written expert testimony is made known to the objecting party. Upon the submittal of a timely objection, the hearing examiner may continue the hearing to require the expert to appear and be available for cross-examination.

J. Filing of Papers. All written submissions made in advance of the hearing shall be filed with the department, marked for the attention of the hearing examiner.

K. Form and Timing of Hearing Examiner’s Decision. The hearing examiner’s decision will be contained in a written decision document with supporting findings and conclusions. Normally this document will be issued about 10 working days after the record closes and, in any event, the notice of decision on permit applications should be made within 120 days after the County notifies the applicant that the application is complete.

L. Substance of Hearing Examiner’s Decision. The hearing examiner’s decision shall be in writing and shall contain findings of fact and conclusions of law supporting the result reached. Any conditions included as part of an approval shall be set forth. The hearing examiner may approve or deny the application or appeal before him or her. In any decision which allows a project, the hearing examiner may impose reasonable conditions supported by the record.

M. Continuation or Reopening of Hearing. The hearing examiner may continue or reopen proceedings, as allowed by law, for good cause any time prior to the issuance of the decision.

N. Distribution of Decision. The department will maintain a copy of the hearing examiner’s decision, available for public inspection, in the official file of each application or appeal and a copy will be sent to the San Juan County Law Library. The department will promptly distribute to the parties of record the hearing examiner’s decision or a notice of where it is available on a publicly accessible website within one day of the department’s receipt of the decision. Any person may obtain a copy of a hearing examiner decision upon request and payment of the costs of reproduction and postage as allowed by the Public Records Act, Chapter 42.56 RCW.

O. Reconsideration of Hearing Examiner’s Decision.

1. General. The hearing examiner may reconsider any decision. Any party of record may request reconsideration of a decision of the hearing examiner. Reconsideration is not a condition precedent to any appeal. Reconsideration shall be limited to:

a. Error(s) of procedure;

b. Error(s) of law or fact; and/or

c. Error(s) of judgment.

2. Time to File. A request for reconsideration, including reconsideration fee, must be filed with the department within five business days of the issuance of the hearing examiner’s written decision. Such requests shall be delivered to the department before 4:00 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 4:00 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were sent, mailed or postmarked.

3. Content of Request for Reconsideration. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee, and contain the following information:

a. The name, address and phone number of the requestor;

b. Identification of the application and final decision which is the subject of the request for reconsideration;

c. Requestor’s statement of grounds for reconsideration and the facts upon which the request is based;

d. The specific relief requested;

e. A statement that the requestor believes the contents of the request to be true, followed by his/her signature.

4. Effect. The timely filing of a request for reconsideration shall stay the hearing examiner’s decision until such time as the hearing examiner issues a decision on reconsideration.

5. Reconsideration. The department shall provide mailed notice that a request for reconsideration has been filed to all parties of record.

6. Hearing Examiner’s Action on Request. The hearing examiner shall consider the request for reconsideration without a hearing, but may solicit written arguments from parties of record. A decision on the request for reconsideration shall be issued within 10 business days after receipt of the request for reconsideration by the County or the last date of receipt of any written arguments, whichever is later.

a. The time period for judicial appeal shall recommence upon issuance of the decision on reconsideration and be the same for all parties of record, regardless of whether a party filed a motion for reconsideration.

b. Only one request for reconsideration may be made by a party of record. Any ground not stated in the initial motion is waived.

7. Limitations on Hearing Examiner’s Reconsideration. The hearing examiner shall consider the request for reconsideration based on the administrative record only. No new evidence may be considered or submitted by any party. The reconsideration decision issued by the hearing examiner may modify, affirm or reverse the hearing examiner’s decision.

8. Final Decision on Reconsideration. A decision on reconsideration shall be distributed in the same manner as the original final decision.

P. Termination of Jurisdiction. The jurisdiction of the hearing examiner terminates upon the end of the appeal period for a decision. (Ord. 9-2013 § 33; Res. 25-2011 Exh. A)

2.22.220 Permit hearings.

A. Format of Permit Hearings. The public hearing will be informal in nature, but organized, so that testimony and evidence can be presented efficiently. The hearing shall include at least the following elements:

1. An introductory outline of the procedure by the hearing examiner.

2. Testimony by the department staff which shall summarize the written staff report and provide any additional exhibits or other information the staff believes should be brought to the hearing examiner’s attention. The staff presentation shall include a recommendation for approval, approval with conditions, or denial.

3. Testimony by the applicant and the applicant’s witnesses.

4. Testimony from others wishing to be heard.

5. Rebuttal testimony and closing argument from staff.

6. Rebuttal testimony and closing argument from the applicant.

7. Any participant in the hearing may present his or her testimony through witnesses; provided, that such witnesses, including expert witnesses, must be personally present to so testify unless permission has been granted in advance by the hearing examiner to present such testimony by telephone. Written testimony shall be accepted pursuant to these rules.

B. Testimony for Organizations. Whenever the views of any formal or informal organization are to be presented, the organization shall designate a representative with authority to coordinate the presentation and to speak for the group. Any communications with the organization by the hearing examiner or by any party of record during the course of proceedings shall be through the designated representative.

C. Requiring Further Information. When the hearing examiner concludes that further information is necessary to reach a decision, the record may be kept open to allow time for such information to be supplied. When appropriate, an opportunity to reply to such information shall be provided to the parties of record specified by the hearing examiner, either in writing or through further hearings.

D. Content of the Record. The record of a permit hearing shall include at least the following:

1. The application.

2. The staff report.

3. All documentary or physical evidence received and considered, including all exhibits filed.

4. Electronic recordings of the proceedings and/or an accurate written transcription thereof. (Res. 25-2011 Exh. A)

2.22.230 Appeal hearings.

A. Who May Appeal. On matters within the hearing examiner’s jurisdiction, any person aggrieved by an administrative decision, as defined by law, may appeal to the hearing examiner.

B. Notice of Appeal. The contents of an appeal and the filing requirements thereof shall comply with applicable provisions of the San Juan County Code. The content and filing requirements shall be considered jurisdictional. The hearing examiner shall have no authority to consider appeals that fail to comply with the content and filing requirements of the San Juan County Code.

C. Clarification of Notice of Appeal. If the appeal is unclear and does not sufficiently explain the basis for the appeal, the hearing examiner may issue an order requiring that the appellant amend the appeal within 10 days of the date of the order. If the appeal is not satisfactorily amended within the time allowed, it shall be dismissed.

D. Motions. The hearing examiner shall dismiss an appeal, without hearing, when it is determined by the hearing examiner to be untimely, without merit on its face, incomplete, or frivolous.

Any application to the hearing examiner for an order shall be by motion which, unless made during a hearing, shall be in writing, stating the reasons for the request and setting forth the relief or order sought. Written motions shall be received at least five days in advance of the hearing.

E. Parties. The parties in appeal hearings shall be the County, the applicant, an intervenor granted such status, and the appellant(s), if different from the applicant or the County. No other persons shall be allowed to testify unless serving as a witness to one of the parties unless otherwise permitted at the discretion of the hearing examiner.

F. Intervention in Appeal Hearings.

1. Upon a showing of a substantial or significant interest that is not otherwise represented, the hearing examiner may permit an interested person, group, organization, corporation, or other entity, who is not a part to the appeal, to intervene in the appeal, except that no intervention shall be allowed in appeal hearings concerning code enforcement matters.

2. A written request for intervention must be submitted to the hearing examiner, the applicant, and the appellant at least five days prior to the day on which the hearing is to begin, unless the intervention is for the sole purpose of preserving the right to appeal the decision of the hearing examiner to court, in which such written intervention request may be permitted at any time up to the start of the hearing. The intervention request must state the basis for the intervention and how the person, group, organization, corporation or other entity making the request is affected by or interested in the appeal.

3. Upon approval of the request, the intervenor shall have all the procedural rights of a party in the proceedings, subject the terms of the order granted intervention and any subsequent condition that the hearing examiner may impose or direction. Conditions of intervention may include:

a. Limiting the intervenor’s participation to designated issues in which the intervenor has a particular interest or expertise as shown by the request for intervention or other information;

b. Requiring or limiting the intervenor’s use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings;

c. Requiring two or more intervenors and/or parties with similar interest to combine their presentations of evidence and argument, cross examination, discovery, and other participation in the proceedings;

d. Prohibiting any participation because the intervention is granted only for the purpose of preserving a right of appeal of the hearing examiner decision;

e. Such other terms as will help further the purpose of the proceedings.

G. Format of the Appeal Hearing. The appeal hearing will be of an informal nature, but organized so that testimony and other evidence can be presented efficiently. An appeal hearing shall include at least the following:

1. An introductory outline of the procedure by the hearing examiner.

2. Presentation by the appellant, including any witnesses.

3. Cross-examination, if any, of appellant and appellant’s witnesses.

4. Presentation by the department staff, summarizing the staff analysis and including any witnesses for the County.

5. Cross-examination, if any, of department staff and staff’s witnesses.

6. Presentation by the project applicant, if different from appellant, including any witnesses.

7. Cross-examination, if any, of the project applicant and applicant’s witnesses.

8. Rebuttal testimony and closing by staff.

9. Rebuttal testimony and closing by applicant, if different from appellant.

10. Rebuttal testimony and closing by appellant.

11. Written statements of interested members of the public shall be permitted and may be limited at the discretion of the hearing examiner at an appropriate time of the proceeding.

H. Prehearing Conference. The hearing examiner may schedule and hold a prehearing conference when it appears that the orderly and efficient conduct of the hearing will be served, or that settlement of the appeal through such a conference is likely. A prehearing conference may, among other things, consider:

1. Simplification of the issues.

2. The existence of undisputed facts to which the parties are willing to stipulate.

3. The identification of witnesses and documentary or other evidence to be presented at hearing.

4. Any reasonable needs any party may have for discovering the details of the case the other party intends to present.

5. The imposition of reasonable time limits.

Based upon the discussions and agreements at such a conference, the hearing examiner may enter a prehearing order, which shall govern subsequent proceedings. If the case is settled at such a conference, the hearing examiner shall enter an order reciting the terms of the settlement and dismissing the appeal.

I. Content of the Record. The record of an appeal hearing conducted by the hearing examiner shall include at least the following:

1. The notice of appeal and any amendments.

2. The staff analysis responding to the appeal and all accompanying documents, including the papers that comprise the record of the decision subject to appeal.

3. Additional documentary or physical evidence received and considered, including all exhibits filed.

4. The hearing examiner’s decision.

5. Electronic recordings of the proceedings and/or an accurate written transcription thereof. (Ord. 9-2013 § 29; Res. 25-2011 Exh. A)

2.22.240 Appeal of hearing examiner decisions.

Decisions of the hearing examiner are the final decision of the County and there is no further administrative appeal. The rules and procedures for appeals to court or other boards are set out in the Revised Code of Washington. Appeals shall be within the time allowed by law. The hearing examiner’s decision shall contain a statement advising parties of their appeal rights. (Res. 25-2011 Exh. A)