Chapter 2.50 OFFICE OF THE HEARING EXAMINER*

The office of the hearing examiner is created. The hearing examiner shall interpret, review, and implement land use regulations, hear appeals from orders, recommendations, permits, decisions or determinations made by a city official as set forth in this chapter, and review and hear other matters as provided for in this code and other ordinances. Throughout this chapter the masculine gender shall include the feminine. (Ord. 2004-4 § 1, 2004).

2.50.030 Appointment and terms.

The hearing examiner shall be appointed by and shall serve at the pleasure of the city manager. (Ord. 2004-4 § 1, 2004).

2.50.040 Compensation.

The city shall contract with the hearing examiner for the performance of duties described in the code. The compensation paid the hearing examiner shall be that established in the contract. (Ord. 2004-4 § 1, 2004).

2.50.050 Qualifications.

The hearing examiner shall be appointed solely with regard to his qualifications for the duties of the office which shall include, but not be limited to, any or all of the following:

A. Appropriate educational experience, such as an urban planner or public administrator;

B. Extensive experience in planning work in a responsible capacity; and

C. Legal experience, particularly where the experience is in the area of land use management or administrative law. (Ord. 2004-4 § 1, 2004).

2.50.060 Conflict of interest.*

The hearing examiner shall not conduct or participate in any hearing or decision in which he has a direct or indirect personal interest which might exert such influence upon him sufficient to interfere with his decision-making process. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict. If the hearing examiner concludes that he has a conflict of interest with respect to a matter pending before him, then unless all parties agree in writing to have the matter heard by that hearing examiner, he shall disqualify himself from participating in the deliberations and the decision-making process with respect to the matter. If this occurs and there is not a pro tem hearing examiner already appointed, the city manager shall appoint a person to serve as the hearing examiner for that matter. (Ord. 2004-4 § 1, 2004).

*State law reference(s) – Conflict of interest for planning agency, RCW 35A.63.020.

2.50.070 Freedom from improper influence.

No city council member, city official or any other person shall attempt to interfere with, or improperly influence the hearing examiner in the performance of his designated duties. (Ord. 2004-4 § 1, 2004).

2.50.080 Duties.

A. Applications. With respect to applications of matters submitted before him, 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 these facts, which conclusions shall represent the final action on the application, unless appealed as hereinafter specified:

1. Conditional use permits;

2. Sign variances;

3. Planned unit developments;

4. Preliminary plats;

5. Special home occupation permit; and

6. Applications for variances from the terms of the zoning code and subdivision code; provided, however, that no application for a variance shall be granted unless the hearing examiner finds:

a. The variance shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application is located;

b. That such variance is necessary because special conditions and circumstances exist relating to the size, shape, topography, location, or surroundings of the subject property which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same zoning district; and

c. That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated.

B. Appeals. With respect to appeals submitted before him 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, which conclusions shall represent the final action on the appeal, for the following appeals:

1. Appeals from development plan and zoning permit review decisions;

2. Appeals from sign permit decisions;

3. Appeals from administrative interpretation decisions;

4. Appeals from administrative design review decisions;

5. Appeals of administrative SEPA determinations where an administrative appeal is provided;

6. Closed record appeals of administrative decisions made by the local planning staff;

7. Appeals from accessory dwelling unit permit decisions;

8. Appeals from administrative variance decisions;

9. Appeals from downtown design review decisions;

10. Appeals from multifamily design review decisions;

11. Appeals from short subdivision decisions;

12. Appeals from stop work orders or notices of violation issued by a city official in the administration or enforcement of the provisions of the Toppenish Municipal Code;

13. Appeals of SEPA determinations;

14. Appeals from orders, decisions or determinations of the city relative to the application and/or interpretation of the codes adopted in Chapter 15.01 TMC, except that the hearing examiner shall have no authority to waive the requirements of the codes adopted in Chapter 15.01 TMC;

15. Such other matters as may be designated by ordinance.

C. Recommendations. 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, together with a recommendation to the city council, for the following:

1. Rezones;

2. Planned unit developments with a change of use;

3. Such other matters as may be designated by the council.

D. Public Hearings. The hearing examiner shall conduct public hearings when required under the provisions of the State Environmental Policy Act; conduct open record public hearings or closed-record appeals in accordance with the provision of TMC Title 14, Development Code Administration Procedures; conduct such other hearings as the city council may from time to time deem appropriate.

E. References. All references in the city code and elsewhere to the board of adjustment and the board of appeals shall be construed as referring to the hearing examiner. The provisions of this chapter shall supersede any inconsistent or conflicting provisions elsewhere in this code as to the powers and duties of the planning commission.

F. Recommendation or Decision.

1. The hearing examiner’s recommendation or decision may be to grant or deny the application, or the hearing examiner may recommend or require of the applicant such conditions, modifications and restrictions as the hearing examiner finds necessary to make the application compatible with its environment, with applicable state laws, and to carry out the objectives and goals of the comprehensive plan, the zoning code, the subdivision code, and other codes and ordinances of the city. Conditions, modifications and restrictions that may be imposed are, but are not limited to, additional setbacks, screenings in the form of landscaping and fencing, covenants, easements and dedications of additional road rights-of-way. Performance bonds or other financial assurances may be required to ensure compliance with conditions, modifications and restrictions.

2. In regard to applications for rezones, the hearing examiner’s findings and conclusions shall be submitted to the city council, which shall have the final authority to act on such applications. The hearing by the hearing examiner shall constitute an open record predecision hearing before the final decision is made by the city council. (Ord. 2020-11 § 1, 2020; Ord. 2004-4 § 1, 2004).

2.50.090 Applications.

Applications for all matters to be heard by the hearing examiner shall be presented to the affected city department and to the city’s planner. When it is found an application meets the applicable requirements, the application shall be accepted. The city planner shall be responsible for assigning a date for the public hearing for each application. The date set for a public hearing shall not be more than 60 calendar days after the applicant has complied with all requirements and furnished all necessary data to the planning department. Hearings on project permit applications are subject to the notice and hearing requirements set forth in TMC Title 14, Development Code Administration Procedures. (Ord. 2004-4 § 1, 2004).

2.50.100 Report by planning department.

For permit applications, the city planner shall coordinate and assemble the comments and recommendations of city departments and governmental agencies having an interest in the application and shall prepare a report that includes the information described in TMC 14.06.010(D). For all other matters, the appropriate city department shall prepare a report summarizing the factors involved and the department findings and supportive recommendations. At least seven calendar days prior to the scheduled hearing, the report shall be filed with the hearing examiner and copies shall be mailed to the applicant and shall be made available for use by any interested party for the cost of reproduction. (Ord. 2005-1 § 1, 2005; Ord. 2004-4 § 1, 2004).

2.50.110 Open record public hearing.

A. Before rendering a decision or recommendation on any application, the hearing examiner shall hold at least one open record public hearing thereon.

B. For permit applications, notice of the time and place of the public hearing shall be given as provided in TMC 14.10.020. For all other applications, notice of the time and place of the public hearing shall be given as provided in the ordinance governing the application. If none is specifically set forth, such notice shall be given at least 10 working days prior to such hearing.

C. The hearing examiner shall have the power to prescribe rules and regulations for the conduct of hearings under this chapter and also to administer oaths and preserve order. (Ord. 2005-1 § 2, 2005; Ord. 2004-4 § 1, 2004).

2.50.120 Decision and recommendation.

A. When the hearing examiner renders a decision or recommendation, the hearing examiner shall make and enter written findings from the record and conclusions therefrom which support such decision. The decision shall be rendered within 10 working days following conclusion of all testimony and hearings, unless a longer period is mutually agreed to on the record by the applicant and the hearing examiner. The copy of such decision, including findings and conclusions, shall be transmitted by first class mail, to the applicant and other parties of record in the case requesting the same. There shall be kept in the planning department a signed affidavit which shall attest that each mailing was sent in compliance with this provision.

B. In the case of applications requiring city council approval, the hearing examiner shall file a decision with the city council at the expiration of the period provided for reconsideration, or if reconsideration is accepted, within 10 working days after the decision on reconsideration. (Ord. 2004-4 § 1, 2004).

2.50.130 Reconsideration.

A party of record believing that a decision or recommendation of the hearing examiner is based on erroneous procedures, errors of law or fact, or the discovery of new evidence which could not be reasonably available at the prior hearing, may make a written request for reconsideration by the hearing examiner within five working days of the date the decision or recommendation is rendered. This request shall set forth the specific errors or new information relied upon by such appellant, and the hearing examiner may, after review of the record, take further action as he or she deems proper. If a request for reconsideration is timely submitted, a decision is not final until after a decision on reconsideration is issued. A party of record is the applicant; the owner of the property for which the permit or approval is requested; any person who testified at the open record public hearing, including without limitation the city’s planning official; and any person who submitted written comments before or during the open record public hearing except for persons who have only signed petitions or form letters. (Ord. 2013-15 § a, 2013; Ord. 2004-4 § 1, 2004).

2.50.140 Appeal of decision.

A. Any party who has standing to appeal the hearing examiner’s decision under Chapter 36.70C RCW (judicial review of land use decisions) may submit an appeal within 21 calendar days from the date the final decision of the hearing examiner is rendered, to the Yakima County superior court.

B. No appeal may be made from a recommendation of the hearing examiner. (Ord. 2013-15 § b, 2013; Ord. 2004-4 § 1, 2004).

2.50.150 City council action.

A. Any application requiring action by the city council shall be taken by the adoption of a motion, resolution or ordinance by the city council. When taking any such final action, the city council shall make and enter findings of fact from the record and conclusions therefrom which support its action. The city council may adopt all or portions of the findings and conclusions from the hearing examiner’s recommendation.

B. In the case of an ordinance for rezone of property, the ordinance shall not be placed on the city council’s agenda until all conditions, restrictions or modifications that may have been stipulated by the city council have been accomplished or provisions for compliance made to the satisfaction of the legal department.

C. The action of the city council, approving, modifying, or rejecting a recommendation of the hearing examiner, shall be final and conclusive. Appellants have 21 calendar days from the date of city council action to file an appeal with the superior court. (Ord. 2004-4 § 1, 2004).

2.50.160 City administrative staff is to be considered a person or party.

The city’s administrative staff shall be considered a “person” and/or “party” and shall have the same rights as any other person or party to make requests for reconsideration to the hearing examiner or to appeal decisions of the hearing examiner to superior court. (Ord. 2004-4 § 1, 2004).