Chapter 19.10
OPEN RECORD PUBLIC HEARINGS
Sections:
19.10.020 Responsibility of administrator for hearing.
19.10.030 Conflict of interest, ethics, open public meetings, appearance of fairness.
19.10.040 Ex parte communications.
19.10.060 Burden and nature of proof.
19.10.070 Order of proceedings.
19.10.080 Joint public hearings.
19.10.090 Findings and notice of decision.
19.10.100 Calculation of time periods for issuance of notice of final decision.
19.10.010 General.
Required public hearings on all Types I through V project permit applications shall be conducted in accordance with this chapter. (Ord. 482 § 1 (part), 1997)
19.10.020 Responsibility of administrator for hearing.
The administrator 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 town’s authority under SEPA. If the threshold determination other than a determination of significance has not been issued previously by the town, the report shall include or append this determination;
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 title to receive such decision. (Ord. 482 § 1 (part), 1997)
19.10.030 Conflict of interest, ethics, open public meetings, appearance of fairness.
The hearing body shall be subject to RCW 42.23, prohibitions on conflict of interest; RCW 42.30, the open public meetings act; and RCW 42.36, appearance of fairness, as the same now exist or may hereafter be amended. (Ord. 482 § 1 (part), 1997)
19.10.040 Ex parte communications.
A. No member of the hearing body may 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 parties to participate; except as provided in this section:
1. The hearing body may receive advice from its own legal counsel;
2. The hearing body may communicate with staff members (except where the proceeding relates to a code enforcement investigation or prosecution).
B. If, before serving as the hearing body in a quasi-judicial proceeding, any member of the hearing body receives an ex parte communication of a type that could not properly be received while serving, the member of the hearing body, promptly after starting to serve, shall disclose the communication as described in subsection C of this section.
C. If the hearing body 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 hearing body member received any ex parte communication.
The hearing body shall advise all parties that these matters have been placed on the record. Upon request made within ten (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. 482 § 1 (part), 1997)
19.10.050 Disqualification.
A. A member of the hearing body who is disqualified shall be counted.for purposes of forming a quorum. Any member 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.
B. If all members of the hearing body are disqualified, all members present after stating their reasons for disqualification shall be requalified and shall proceed to resolve the issues.
C. Except for Type V 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. 482 § 1 (part), 1997)
19.10.060 Burden and nature of proof.
Except for Type V actions, 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 town’s development regulations and comprehensive plan and that the significant adverse environmental impacts have been adequately addressed. (Ord. 482 § 1 (part), 1997)
19.10.070 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 (A)(2) 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. 482 § 1 (part), 1997)
19.10.080 Joint public hearings.
A. Administrator’s Decision to Hold Joint Hearing. The administrator may combine any 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 as long as: (1) the hearing is held within the town limits: (2) the requirements of subsection C of this section are met.
B. Applicant’s Request for a Joint Hearing. The applicant may request that the public hearing 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.
C. Prerequisites to Joint Public Hearing. A joint public hearing may be held with another local, state, regional, federal or other agency and the town 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;
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 local government hearing; and
4. The hearing is held within the geographic boundary of the local government. (Ord. 482 § 1 (part), 1997)
19.10.090 Findings and notice of decision.
A. Following the hearing procedure described in Section 19.10.070, the hearing body for Type III permits shall approve, conditionally approve or deny the application. Following the hearing procedure described in Section 19.10.070, the hearing body for Type IV permits shall recommend approval, conditional approval or denial of the application. If the hearing is an appeal, the hearing body shall affirm, reverse or remand the decision that is on appeal.
B. The hearing body’s written decision on Type III permits shall be issued within ten (10) days after the hearing on the project permit application. The hearing body’s written recommendation on Type IV permits shall be issued within fourteen (14) days after the hearing on the project permit application. The notice of final decision shall be issued within one hundred twenty (120) days after the town notifies the applicant that the application is complete. The time frames set forth in this section shall apply to project permit application filed on or after the effective date of the ordinance codified in this section.
C. The town shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (RCW 43.21C) and the procedures for administrative appeal, if any, for Types I through V project permits. Such notice of decision must also contain the name and address of the applicant, the location and description of the project and a copy of the permit or approval, if issued.
D. The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.
E. If the town is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision. (Ord. 482 § 1 (part), 1997)
19.10.100 Calculation of time periods for issuance of notice of final decision.
A. In determining the number of days that have elapsed after the town of Winthrop has notified the applicant that the application is complete for purposes of calculating the time for issuance of the notice of final decision, the following periods shall be excluded:
1. Any period during which the applicant has been requested by the town to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the town notifies the applicant of the need for additional information until the earlier of the date the local government determines whether the additional information satisfies the request for information or fourteen (14) days after the date the information has been provided to the town;
2. If the town determines that the information submitted by the applicant under subsection (A)(1) of this section is insufficient, it shall notify the applicant of the deficiencies and the procedures under Section 19.04.030 (D) shall apply as if a new request for studies has been made;
3. Any period during which an environmental impact statement is being prepared following determination of significance pursuant to RCW 43.21, if the town by ordinance has established time periods for completion of environmental impact statements, or if the local government and the applicant in writing agree to a time period for completion of an environmental impact statement;
4. Any period for administrative appeals of project permits, if an open record appeal hearing or a closed record appeal, or both, are allowed. The time period for consideration and decision on appeals shall not exceed:
a. Ninety (90) days for an open record appeal hearing, and
b. Sixty (60) days for a closed record appeal.
The parties may agree to extend these time periods;
5. Any extension of time mutually agreed upon by the applicant and the local government when such agreement is put in writing.
B. The time limits established in this title do not apply if a project permit application:
1. Requires an amendment to the comprehensive plan or a development regulation;
2. Is an application for a permit or approval described in Section 19.02.060; or
3. Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete under RCW 36.70B.070. (Ord. 482 § 1 (part), 1997)