Chapter 22.10
OPEN RECORD PUBLIC HEARINGS
Sections:
22.10.030 Responsibility of Director.
22.10.040 Notice of public hearing.
22.10.050 Order of proceedings.
22.10.060 Joint public hearing.
22.10.070 Applicant’s request for a joint hearing.
22.10.080 Examiner’s decision – Findings required.
22.10.090 Burden and nature of proof.
22.10.100 Conflict of interest, ethics, open meetings, appearance of fairness.
22.10.110 Ex parte communications.
22.10.130 Optional reconsideration by the Examiner.
22.10.010 Purpose.
The purpose of this chapter is to provide the procedures for open record public hearings.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.020 Applicability.
All Type III project permits, appeals of administrative decisions and decisions made pursuant to Chapter 43.21C RCW shall be subject to not more than one open record public hearing, unless otherwise stated herein.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.030 Responsibility of Director.
The Director shall:
A. Schedule an application for public hearing or an appeal for public hearing:
1. After receiving a complete application for a major variance, or
2. Following the threshold determination on a Type III permit subject to SEPA, or
3. After receiving a complete application for an administrative appeal;
B. Schedule a public hearing either during the day or evening depending on public interest;
C. Give notice of the hearing in accordance with this title;
D. Prepare a staff report on the application or appeal, which shall be a single report stating all of the decisions made as of the date of the report, including recommendations of project permits in the consolidated permit process. 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, was not issued by the City, the report shall include or append this determination. The report shall be filed with the Examiner at least five days prior to the scheduled public hearing date and copies thereof shall be mailed to the applicant and shall be made available for use by interested parties at the cost of reproduction; and
E. Prepare the notice of decision.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.040 Notice of public hearing.
A. Content of Public Notice Documents. At a minimum, public notice documents shall contain the following information:
1. The name and address of the applicant and/or agent;
2. The subject property location;
3. The nature of the proposed use, development, or appeal;
4. The date, time and place of the public hearing if applicable, as scheduled at the date of notice. Notice of an open record hearing shall be given at least 14 days prior to the hearing;
5. The sections of the code that are pertinent to the hearing procedure;
6. When information may be examined, and when and how written comments can be admitted; and
7. A Department contact and telephone number.
B. Notice of Hearing/Comment Period. Except in the case of a notice of an appeal for an administrative decision, the Department shall provide public notice for the public hearing. The Department shall send a written notice, addressed through the United States mail, to City designated neighborhood advisory committee chairpersons and all property owners of record within a radius of 300 feet, but not less than two parcels deep, around the exterior boundaries of the subject property. Such notice shall be mailed not more than 14 working days from the determination of a complete application. Parties receiving notice shall be given 14 days, from the mailing date, to provide any comments to the Department. The property listing shall be supplied by the applicant with the application and based on the Pierce County Assessor’s records.
C. Publish Notice. Except in the case of a notice of an appeal for an administrative decision, notice shall be published in a newspaper of general circulation in the City not less than 14 days before the date of the hearing, and such notice shall set the date, time, and place of the public hearing.
D. Appeal of Administrative Decisions. Notice for an appeal of an administrative decision shall be mailed to the appellant, to the parties of record and to the officer whose decision is being appealed, together with a copy of the written appeal.
E. Shoreline Use Regulations Notice. The following exceptions apply to notice of shoreline use regulation permits:
1. Comments may be submitted within 20 days of the last date of the published notice. Each person responding to such notice shall receive a decision;
2. The comment period shall be at least 20 days; and
3. The public may obtain a copy of the decision within two days following issuance (RCW 90.58.140).
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.050 Order of proceedings.
A. Rules. The order of proceedings for a hearing will depend in part on the matter of the hearing. The Hearings Examiner shall have the power to prescribe rules and regulations for the conduct of hearings under this section, to issue summons for and compel the appearance of witnesses, to administer oaths, and to preserve order. The privilege of cross examination of witnesses shall be accorded all interested parties or their counsel in accordance with the rules of the Examiner. The following shall be supplemented by administrative procedures as appropriate:
1. Before receiving information on the issue, the following shall be determined:
a. Any objections on jurisdictional grounds shall be noted on the record and, if there is objection, the Examiner has the discretion to proceed or terminate; and
b. Any abstention or disqualification shall be determined.
2. The Examiner may take official notice of known information relating to the issue, including but not limited to:
a. A provision of any ordinance, resolution, rule, officially adopted development standard, or state law; and
b. Other public records and facts judicially noticeable by law.
3. Matters officially noted need not be established by evidence and may be considered by the Hearings Examiner in his or her determination. Parties requesting official notice of information shall do so on the record. The Hearings Examiner may take notice of matters listed in subsection (A)(2) of this section if stated on the record. Any matter given official notice may be rebutted.
4. Information shall be received from the staff and from proponents and opponents. The Examiner 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. Unless otherwise stated by the Hearings Examiner, the general order and time allotted each party shall be:
a. City staff shall be given 15 minutes to present the staff report to the Examiner;
b. The applicant shall be given 15 minutes to present the proposal;
c. The hearing shall be opened to the public, including anyone in opposition or who has questions and concerns. Members of the public will have a maximum of 15 minutes each with the ability to assign their time to another individual; and
d. Following the initial hour, the Examiner shall indicate the order and times given for testimony.
5. The Hearings Examiner 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.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.060 Joint public hearing.
The Director or Examiner may combine any public hearing on a project permit application with any hearing that may be held by another local, State, regional, Federal, or other agency on the proposed action so long as the requirements of UPMC 22.10.070 are met.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.070 Applicant’s request for a joint hearing.
A. The applicant may request that the public hearings on a permit application be combined, as long as the joint hearing can be held within the time periods set forth in this title. In the alternative, the applicant may agree to a particular schedule if that additional time is needed in order to complete the hearings.
B. Prerequisites to Joint Public Hearing. A joint public hearing may be held with another local, state, regional, federal or other agency and the city, as long as:
1. The other agency is not expressly prohibited by statute from doing so;
2. Sufficient notice of the hearing is given to meet each of the agencies’ adopted notice requirements as set forth in statute, ordinance, or rule; and
3. The agency has received the necessary information about the proposed project from the applicant in enough time to hold its hearing at the same time as the city.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.080 Examiner’s decision – Findings required.
A. Following the hearing, the examiner shall, within 20 working days, issue a decision. The examiner may approve, conditionally approve or deny the application. If the hearing is an appeal, the examiner shall reverse or affirm wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as should be made. The examiner shall have all the powers of the officer from whom the appeal is taken insofar as the decision on the particular issue is concerned and in making its determination the examiner may hear any pertinent facts bearing on the case. When the examiner renders a decision or recommendation, such examiner shall make and enter written findings from the record and conclusions thereof which support such decision.
B. The finding and conclusions pertaining to land use regulatory matters shall set forth and demonstrate the manner in which the decision or recommendation carries out and helps to implement the goals and policies of the comprehensive plan, and the polices and standards set forth in the various policy documents and land use regulatory codes.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.090 Burden and nature of proof.
The burden of proof is on the proponent. 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 impact has been adequately addressed.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.100 Conflict of interest, ethics, open meetings, appearance of fairness.
The hearings examiner shall be subject to the codes of ethics (RCW 35A.42.020), prohibitions on conflict of interest (RCW 35A.42.020 and Chapter 42.23 RCW), open public meetings (Chapter 42.23 RCW), and appearance of fairness (Chapter 42.36 RCW), as the same now exist or may hereafter be amended.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.110 Ex parte communications.
A. The hearings examiner may not communicate, directly or indirectly, regarding any issue in a proceeding before him or her, other than to participate in communications necessary to procedural aspects of maintaining an orderly process, unless he or she provides notice and opportunity for all parities to participate. Except as provided in this section:
1. The hearings examiner may receive advice from legal counsel; and
2. The hearings examiner may communicate with staff members (except where the proceedings relates to a code enforcement investigation or prosecution).
B. If, before serving as the hearings examiner in a quasi-judicial proceeding, the examiner receives ex parte communication of a type that could not properly be received while serving, the examiner, promptly after starting to serve, shall disclose the communications as described in subsection (C) below.
C. If the hearings examiner receives an ex parte communication in violation of this section, he or she shall place on the record:
1. All written communications received;
2. All written responses to the communications;
3. State the substance of all oral communications received, and all responses made;
4. The identity of each person from whom the examiner received any ex parte communication.
D. The hearings examiner shall advise all parties that these matters have been placed on the record. Upon request made within 10 days after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a rebuttal statement on the record.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.120 Disqualification.
The hearings examiner who is disqualified may do so only by making full disclosure to the audience, abstaining from voting on the proposal, vacating the seat on the hearing body and physically leaving the hearing.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).
22.10.130 Optional reconsideration by the examiner.
Provided an applicant agrees at the time of application, any aggrieved person including the applicant feeling that the decision of the examiner is based on errors of procedure or fact may make a written request for review by the examiner within seven working days of the written decision. This request shall set forth the alleged errors, and the examiner may, after review of the record, take such further action as he deems proper and may render a revised decision. Only one request for reconsideration may be filed by any one person or party, even if the examiner reverses or modifies his original decision or changes the language in the decision originally rendered. Agreement by the applicant to allow reconsideration extends the applicable time period in UPMC 22.05.070 by the time it takes to resolve the request for reconsideration.
(Ord. 236 § 6, 1999; Ord. 130 § 1, 1996).