Chapter 2.10
HEARING EXAMINER*
Sections:
2.10.010 Position established.
2.10.020 Appointment and removal.
2.10.030 Appointment of pro tempore hearing examiners.
2.10.060 Hearing examiner – Conflict of interest and freedom from improper influence.
2.10.070 Powers and duties – Designated.
2.10.110 Failure to appear – Default judgment.
2.10.120 Payment of cost for transcription of verbatim transcript.
2.10.130 Hearing examiner’s report.
*Prior legislation: Ords. 97-019, 2007-010, 2009-036 and 2014-002.
2.10.005 Purpose.
The purpose of this chapter is to provide an administrative hearing and appeal system that best satisfies the following basic needs:
A. Separate the application of regulatory controls in project permits from planning policy efforts;
B. Protect community health, safety, and welfare;
C. Assure the principles of fairness and due process of law in regulatory enforcement; and
D. Provide a civil enforcement system to enforce violations of the Sequim Municipal Code. (Ord. 2019-004 § 1 (Exh. A))
2.10.010 Position established.
Pursuant to RCW 35A.63.110 and 35A.63.170, and SMC 2.36.021, the city council creates the position of hearing examiner and vests in the hearing examiner authority to hear and decide all land use appeals and quasi-judicial land use decisions in accordance with RCW 35A.63.170. The hearing examiner’s role is to serve as the review authority on quasi-judicial applications, conduct appeals hearings and to interpret, review, and implement regulations as provided in this chapter. Unless the context requires otherwise, the term “hearing examiner” used in this chapter includes hearing examiners pro tempore. The hearing examiner is separate and distinct from any city officer or department. Whenever the term “board of adjustment” appears in the Sequim Municipal Code, such term refers to the hearing examiner. If there is a conflict within the Sequim Municipal Code as to the appropriate hearing body, this code prevails. (Ord. 2022-010 § 1 (Exh. B); Ord. 2019-004 § 1 (Exh. A))
2.10.020 Appointment and removal.
A. The hearing examiner will be appointed by the city manager and confirmed by majority vote of the city council. The hearing examiner will be appointed solely based upon the hearing examiner’s qualifications for the duties of the office. The hearing examiner must have training or experience that qualifies the hearing examiner to competently discharge those duties.
B. The hearing examiner cannot hold any other elective or appointed office or position in the city.
C. The hearing examiner will be retained as an independent contractor pursuant to a contract prepared by the city attorney and approved by the city council. The term of appointment, scope of work, compensation, and other requirements will be as established pursuant to contract and in accordance with this chapter. Appointment terms may not exceed three years.
D. The hearing examiner and hearing examiners pro tempore may be removed by the city manager with or without cause, after consultation with the city attorney. Any hearing examiner removed is responsible for transitioning all pending matters to the successor hearing examiner in an appropriate and timely manner.
E. Vacancies will be filled in the same manner as initial appointments. (Ord. 2019-004 § 1 (Exh. A))
2.10.030 Appointment of pro tempore hearing examiners.
The city manager may appoint one or more pro tempore hearing examiners upon confirmation from a majority of the city council to act before the appointment of or in the absence of the regular hearing examiner. Such appointment must be from qualified applicants meeting all criteria set forth in SMC 2.10.020 – Appointment and removal. Pro tempore hearing examiners, when acting in such capacity, have all powers and duties of the hearing examiner as prescribed in this code or elsewhere. (Ord. 2019-004 § 1 (Exh. A))
2.10.040 Support services.
Support services will be provided to the hearing examiner as the need arises by contract or by the city clerk or designee, the department of community development, or other city staff. (Ord. 2019-004 § 1 (Exh. A))
2.10.050 Rules of procedure.
The hearing examiner will adhere to the rules of procedure set forth in this chapter and as may be supplemented by the hearing examiner with written approval of the city.
A. Ex Parte Communications. No person, including elected or appointed city officials, may attempt to influence a hearing examiner in any pending matter unless such influence is made during a public hearing called for that purpose. No person, including elected or appointed city officials or city staff, may interfere with a hearing examiner in the performance of his or her duties in any way. If ex parte communication occurs, the public official or any member of the public must disclose the communication, make it part of the public record and provide an opportunity for review and comment on its content before completing the public hearing process and making a decision. This section does not preclude ex parte communication regarding procedural matters if such communication is made part of the record. Nothing in this section is intended to prevent the city attorney from rendering legal service to the hearing examiner upon the hearing examiner’s request.
B. Pre-Hearing Conferences. The hearing examiner may hold pre-hearing conferences to clarify issues or structure the proceeding, if all affected parties receive reasonable notice and attend or waive their right to attend. At the hearing, or by pre-hearing order, the hearing examiner will communicate for the record the time, purpose, and result of the pre-hearing conference.
C. Continuing Hearings. The hearing examiner may continue the hearing until a certain date to allow all comments to be heard or to gather more information. No further notice of that hearing need be given. Any party of record may request that a hearing be continued and the hearing examiner will grant or deny the request.
D. Evidence. For land use decisions, the applicant has the burden of proof to show compliance with applicable Washington State and city of Sequim laws and regulations. The hearing generally does not need to be conducted according to strict legal rules of evidence and procedure; however, any relevant and probative evidence will be admitted. The rules of privilege are effective to the extent recognized by law. The hearing examiner will decide the admissibility of evidence. All parties will be allowed the opportunity to make a record of evidence admitted or excluded during the hearing; this record includes offers of proof. Documentary evidence may be received in the form of copies. Upon request, parties will be given an opportunity to compare the copy with the original.
E. Judicial Notice. The hearing examiner may take judicial notice of judicially cognizable facts and may also take notice of general, technical, or scientific facts within the hearing examiner’s specialized knowledge. The hearing examiner will not take notice of disputed adjudicative facts that are determinative of the outcome of a particular proceeding.
F. Hearing Record. Hearings will be electronically recorded and such recordings are a part of the official hearing record if the requester pays reasonable costs of copying recordings or preparing transcripts, all components of which will be available to the public. No minutes of the hearing will be kept. If a document is referred to at a public hearing and the hearing examiner requests a copy of the document, that document may enter the record. The hearing record includes:
1. The application or petition.
2. The staff report.
3. A statement of notices published.
4. Evidence received, including oral testimony and exhibits.
5. Transcribed electronic recordings.
6. The decision together with findings and conclusions.
7. The SEPA threshold determination and other environmental documents, if applicable. (Ord. 2019-004 § 1 (Exh. A))
2.10.060 Hearing examiner – Conflict of interest and freedom from improper influence.
A. The hearing examiner may not conduct or participate in any hearing or decision in which the hearing examiner has a direct or indirect financial interest. If the hearing examiner disqualifies himself or herself or is otherwise unable to serve, the hearing will be conducted by the pro tempore hearing examiner. The regular hearing examiner is responsible for transferring any case to a pro tempore hearing examiner in a timely and appropriate manner.
B. Participants have the right, insofar as possible, to have the hearing examiner free from personal interest or pre-hearing contacts on regulatory matters considered by the hearing examiner. It is recognized that there is an equivalent public right to free access to public officials on any matter. If such personal interest or pre-hearing contact impairs the hearing examiner’s ability to act on the matter, the hearing examiner must recuse himself or herself from such matter, unless all parties agree in writing to have the matter heard by the hearing examiner. Such writing will be made a part of the record of the relevant proceeding. Nothing in this section is intended to authorize ex parte communications or otherwise diminish the ex parte communication prohibition described in SMC 2.10.050(A). (Ord. 2019-004 § 1 (Exh. A))
2.10.070 Powers and duties – Designated.
The hearing examiner may provide rules for the format for hearings and proceedings, issue subpoenas to compel the attendance of witnesses, administer oaths and affirmations, interrogatories and depositions, examination and cross-examination of witnesses, and any other matters deemed necessary by the hearing examiner for the fair and efficient conduct of proceedings and hearings. Such rules must be consistent with this chapter and SMC 20.01.200, Procedures for public hearings.
The hearing examiner has the following powers and duties:
A. Appeals. To hear and decide appeals from orders, recommendations, permits, decisions, or determinations made by a city official in the administration or enforcement of the zoning provisions or other land use regulatory ordinances adopted by the city as set forth in Chapter 20.01 SMC. Appeals must be in writing and conform to the requirements identified in SMC 20.01.240.
B. Quasi-Judicial Decisions. The hearing examiner is responsible for conducting hearings on and adjudicating quasi-judicial cases involving a variety of complex land use and regulatory compliance issues, and other issues which the city council may designate to the hearing examiner by ordinance or resolution. The hearing examiner must issue decisions or recommendations based on relevant ordinances, regulations, policies, statutes, and other authorities.
C. Hear and decide appeals related to code enforcement activities as set forth in Chapter 1.13 SMC – Code Enforcement. Appeal submittals must conform to the relevant code enforcement process or, if no process is identified in the relevant code, to SMC 1.13.150. (Ord. 2022-010 § 1 (Exh. B); Ord. 2019-004 § 1 (Exh. A))
2.10.080 Decision.
A. All hearing examiner decisions must be supported by findings of fact and conclusions of law. Such findings and conclusions must address all specific issues raised by the staff, the applicant, or any party of record. Such findings and conclusions may also set forth the manner by which the decision would carry out and conform to the city’s comprehensive plan, land use or other enforcement regulations, and other official policies, objectives, and ordinances. In lieu of original findings and conclusions regarding uncontested matters, the hearing examiner may adopt findings and conclusions recommended by the staff, the applicant, or any party of record. The decision must also contain a statement that the decision is final, as applicable, and set forth the time frames for reconsideration and appeal.
B. The hearing examiner may approve, deny, or approve with such conditions, modifications, and restrictions as the hearing examiner finds necessary to make the application compatible with its environment, the comprehensive plan, other official policies, objectives, and land use regulatory enactments.
C. At any time before the filing of the final decision, the hearing examiner may reopen the proceeding to receive evidence that was unavailable at the time of the hearing. Such reopening may be initiated by a party of record requesting permission to present such evidence. The hearing examiner may grant the request only upon a showing of significant relevance and good cause for delay in its submission. All parties of record will be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttals.
D. Within 10 business days after the hearing has been concluded and the record closed, unless a longer period is agreed to in writing by the applicant or appellant, the hearing examiner will render a written decision.
E. Upon issuance of the hearing examiner’s decision, a copy of the decision will be sent to the director, the applicant or appellant, and other parties of record in accordance with RCW 36.70C.040(4).
F. The city manager, on behalf of the city, is authorized to appeal or seek review of a hearing examiner’s decision in Clallam County Superior Court pursuant to Chapter 36.70C RCW or any other applicable legal authority. (Ord. 2019-004 § 1 (Exh. A))
2.10.090 Final decision.
The hearing examiner’s decision is final unless otherwise specified in each ordinance or code section that grants jurisdiction to the examiner.
A. Appeals – Land Use Decisions. Appeals of the hearing examiner’s decision regarding land use permit applications must be made by a party with standing to the Clallam County Superior Court within 21 calendar days of the date of the decision. The appeal period begins once the hearing examiner has issued the written decision.
B. Appeals – Non-Land Use Decisions. Refer to the applicable code; if no appeal period is identified, refer to SMC 1.13.220 – Judicial appeals. Any applicable appeal period begins once the hearing examiner has issued a written decision. (Ord. 2019-004 § 1 (Exh. A))
2.10.100 Reconsideration.
Prior to six days after the date of the hearing examiner’s decision, a party of record may request reconsideration. The request must be in writing and directed to the city clerk or designee, who will forward the request to the hearing examiner within three business days. The request must specifically set forth errors of procedure, errors of law or fact, errors in judgment, or the discovery of new evidence which was not reasonably available at the open record public hearing. Requests for reconsideration stay further issuance of city permits and the applicable appeal period. Within 10 calendar days of receiving the request, the hearing examiner will do one of the following:
A. Correct or amend the decision without an additional public hearing; or
B. Set the matter for additional public hearing, in which case notice will be republished and provided to all parties of record; or
C. Confirm the original decision.
The hearing examiner’s decision is subject to only one reconsideration, even if the hearing examiner reverses or modifies the original decision. (Ord. 2019-004 § 1 (Exh. A))
2.10.110 Failure to appear – Default judgment.
Failure of applicant or appellant to appear for a scheduled hearing after proper notice has been provided will result in a default judgment in favor of the city, affirming the city’s action or decision that was the subject of the appeal. The hearing examiner may, at the hearing examiner’s discretion, nullify the default judgment and reschedule the hearing if applicant or appellant, within 24 hours of failing to appear, provides the hearing examiner with good cause for failing to appear. At the city’s request, the costs of the missed hearing may be assessed by the hearing examiner against the applicant or appellant. (Ord. 2019-004 § 1 (Exh. A))
2.10.120 Payment of cost for transcription of verbatim transcript.
Whenever the city must prepare a verbatim written transcript of any city proceedings in response to a writ of review or other action filed in any state or federal court, the cost of preparing the transcript is paid by the party filing the action. Within 10 calendar days of the service of such writ of review or other action on the city, the city clerk will notify the party filing the action that the city must prepare a verbatim written transcript of the proceedings involved. In such notice, the city clerk will state the date and subject matter of the public meeting(s) and/or hearing(s) involved and the estimated cost of the preparation of the transcript, including copying costs. Within 10 calendar days of the receipt of such notification, the party filing such action must pay the estimated cost to the city clerk and the city clerk will cause the transcript to be prepared.
If the city’s actual cost incurred in preparing the transcript exceeds the amount deposited with the city clerk, the party filing the action must reimburse the city for such additional amount within 10 calendar days of notification of the amount due. If the city’s actual cost incurred is less than the estimated cost, the city clerk will reimburse the party filing the action in accordance with the credit due.
If the relevant transcripts have previously been prepared, then there is no additional charge to the party filing the action, except for copying costs. The city will file the previously prepared transcripts with the court at no additional expense to the party filing the action, except for copying costs. (Ord. 2019-004 § 1 (Exh. A))
2.10.130 Hearing examiner’s report.
A. The hearing examiner will prepare an annual written report for the city council summarizing activities, actions, and observations.
B. The hearing examiner will meet with the city council as requested, to review the examiner’s observations and discuss potential ordinance, policy, or procedure changes. (Ord. 2019-004 § 1 (Exh. A))