Chapter 17.90 RULES OF PROCEDURE FOR LAND USE MATTERS

A person who testifies at a hearing;

The applicant; or

Persons submitting written testimony about a matter pending before the land use decision maker.

"Presiding officer"

means that person selected by the council, commission or other decision-making body. The term includes an individual hearing officer such as a hearing examiner.

"Quasi-judicial hearing"

means a hearing on a land use application or appeal where a public hearing is required by state statute or local ordinance, evidence is received for and/or against the matter under consideration and the outcome of the hearing will have an impact on specific parties.

(Code 1966 § 17.50.010; Ord. 1269 § 1, 1997)

§ 17.90.020 Ex parte communication.

No person, nor his or her agent, employee or representative, who is interested in a particular petition or application currently pending before a land use decision maker, shall communicate ex parte, directly or indirectly, with a land use decision maker concerning the merits of that or a factually related petition or application. This rule shall not prohibit ex parte communications concerning procedural matters. All allowed ex parte procedural communications should be directed to the city clerk.

A land use decision maker shall not communicate ex parte directly or indirectly with any person, nor his or her agent, employee or representative, interested in a particular petition or application which is pending before a land use decision maker with regard to the merits of that or a factually related petition or application.

If a prohibited ex parte communication is made to or by a land use decision maker, such communication shall be publicly disclosed, and proper discretion shall be exercised by a land use decision maker on whether to disqualify himself or herself as a land use decision maker for that particular hearing.

(Code 1966 § 17.50.020; Ord. 1269 § 1, 1997)

§ 17.90.030 Nature of proceedings.

Expeditious Proceedings. It is the policy of the city that, to the extent practicable and consistent with requirements of law, public hearings shall be conducted expeditiously. In the conduct of such proceedings a land use decision maker and all parties, or their agents, shall make every effort at each stage of a proceeding to avoid delay.

Frequency. Hearings will normally be scheduled on the first and third Tuesdays of each month at 5:30 p.m.

Format. The format for a public hearing will be of an informal nature yet designed in such a way that the evidence and facts relevant to a particular proceeding will become the most readily and efficiently available to a land use decision maker.

(4)

View Trip. When necessary to a full understanding of the case, a land use decision maker may inspect the site before or after the hearing. Failure to inspect the site will not render a land use decision maker's recommendation or decision void. If a land use decision maker inspects a site, the land use decision maker shall make the fact of such inspection part of the record of the hearing.

(5)

Record of Hearing.

Record. Hearings shall be electronically recorded and such recordings shall be a part of the official case record. Copies of the electronic recordings of a particular proceeding shall be made available to the public when requested. The reasonable cost of such copying or transcript shall be paid by the requester. No minutes of the hearing will be kept.

Copies of any written materials in the record may be obtained by any interested person, although that person shall be responsible for paying the cost of reproducing such material.

(6)

Computation of Time. Computation of any period of time prescribed or allowed by these rules shall begin with the first day following that on which the act or event initiating such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday or a city, national or state holiday, the period shall run until the end of the next business day.

(Code 1966 § 17.50.030; Ord. 1269 § 1, 1997)

§ 17.90.040 Rights of parties.

Rights of Parties. Every applicant shall have the right of notice, cross-examination, presentation of evidence, objection, motion, argument, and all other rights essential to a fair hearing. A presiding officer may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony. Cross-examination is permitted as necessary for a full disclosure of the facts, but the presiding officer shall control the amount and style of cross-examination.

Notice Requirements of Hearings and Filings. All notice and time requirements and methods of notification shall be consistent with the provisions as set forth below:

Affidavit of Notice. An affidavit attesting to the notice given of a public hearing (including dates and places of publication, list of those mailed to, and where posted) shall be made a part of each official case record.

(Code 1966 § 17.50.040; Ord. 1269 § 1, 1997)

§ 17.90.050 Presiding officials.

Presiding Officials.

Hearings shall be presided over by a presiding officer.

A presiding officer shall have all of the authority and duties that are granted the officer by state statutes and city ordinances. The duties of a presiding officer include the following responsibilities: To conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. He or she shall have all authority necessary to that end, including, but not limited to, the following powers:

(i)

To administer oaths and affirmations;

(ii)

To issue subpoenas;

(iii)

To rule upon offers of proof and receive evidence;

(iv)

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

(v)

To question any party presenting testimony at the hearing;

(vi)

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

(vii)

To consider and rule upon all procedural and other motions appropriate to the proceeding; and

(viii)

To make and file recommendations or decisions.

Presence of Legal Counsel at Public Hearings or Meetings.

Although representation by legal counsel is not required at hearings, all parties participating in the hearings may be represented by legal counsel of their choice.

At the request of any department and discretion of a land use decision maker, the city attorney may be present at the public hearings or meetings to advise on matters of law and procedure.

All forms of legal authority including briefs, staff reports and other legal memoranda upon which a party of record will be relying or presenting at the hearing must be submitted to a land use decision maker's office at least one week in advance of the scheduled hearing date. The above-mentioned documents shall be available to the public at least one week in advance of the scheduled hearing date.

(Code 1966 § 17.50.050; Ord. 1269 § 1, 1997)

§ 17.90.060 Conduct of hearings.

Content of the Record. The record of a hearing conducted by a land use decision maker shall include, but not be limited to, the following materials:

The application or petition;

The departmental staff reports;

All evidence received, which shall include all exhibits and other materials admitted as evidence;

A statement of all matters officially noticed;

(e)

A decision or a recommended decision containing the findings and conclusions of a land use decision maker;

(f)

Recordings made on electronic equipment; and

(g)

An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA) (if applicable).

Development of Record. A public hearing usually will include, but not be limited to, the following elements: a brief introductory statement by a land use decision maker; a report by the departmental staff which shall include the introduction of the official file, reference to visual aids and a summary of the recommendation of the department; testimony by the applicant or petitioner; testimony in support; testimony of opposing parties; opportunity for cross-examination and rebuttal; and opportunity for questions by a land use decision maker.

Content and Form of Staff Reports. The staff report on a land use application shall include the following, if relevant to the application:

Names and addresses of the owner(s) and applicant(s) of the subject property;

A brief summary of the requested action;

A common description of the subject property and a legal description of the subject property;

A technical data summary of the land use plan designation and zoning designation of the subject property; the current development of the subject property and the adjoining properties; topographical information; geological and soils information; and information on the vegetation on the property;

(e)

The current access to the subject property and the proposed access to the subject property;

(f)

An in-depth analysis of the proposed project. This analysis may include, but not be limited to, the following elements of review:

(i)

Natural features,

(ii)

Character and design, including population figures,

(iii)

Human resources,

(iv)

Housing,

(v)

Economic development,

(vi)

Transportation,

(vii)

Community facilities, services and institutions,

(viii)

Government jurisdiction boundaries,

(ix)

Neighborhoods,

(x)

Land use plans, and

(xi)

Land use regulations;

(g)

A history of the requested action and a history of the development in the surrounding properties;

(h)

A summary of any other requested land use permits in the area;

(i)

The compatibility and impact of the proposal on the existing development and the probable character of the proposal;

(j)

A summary of the reports or recommendations or any other agencies consulted;

(k)

Appropriate maps of the subject property;

(l)

The result of the determination pursuant to the State Environmental Policy Act;

(m)

Staff's conclusions and recommendations.

The staff report shall be distributed according to the procedure consistent with the provisions of the CMC.

(4)

Continuances of Hearings. If, in the opinion of a presiding officer, more information is necessary to make a recommendation or decision or he/she is unable to hear all of the public comments on the matter, he or she may continue the hearing with or without date. If continued to a specific time and place, and posted on the door of the hearing room, no further notice of that hearing need be given.

(5)

Evidence.

Burden of Proof. In each particular proceeding, the petitioner, applicant or the proponent of an individual petition or application shall have the burden of proof.

Admissibility. The hearing generally will not be conducted according to technical rules relating to evidence and procedure. Any relevant evidence shall be admitted if it is the type which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The rules of privilege shall be effective to the extent recognized by law. A presiding officer shall retain discretion on the admissibility of all evidence.

Testimony. All testimony shall be given under oath or affirmation. A presiding officer shall administer the oath or affirmation. This may be done as a group or on an individual basis.

§ 17.90.070 Withdrawal of application or petition.

Copies. Documentary evidence may be received in the form of copies of excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

(e)

Judicial Notice. A presiding officer may take judicial notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within his or her specialized knowledge. A land use decision maker shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding.

(f)

Evidence Received Subsequent to the Hearing. Additional evidence may only be submitted upon a request for reconsideration based on new evidence not available at the time of the public hearing. If additional evidence is submitted after the public hearing, it will be considered 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 rebuttal arguments.

(g)

All parties will be allowed opportunity to make a record of evidence admitted or denied during the course of the hearing. This record shall include offers of proof.

(Code 1966 § 17.50.060; Ord. 1269 § 1, 1997)

Withdrawal Prior to Service of Official Notice. If a withdrawal request is made before the official notice of the public hearing is given, the applicant or petitioner shall notify the city of the withdrawal request and the withdrawal shall be automatically permitted.

§ 17.90.080 Recommendations and decisions.

Withdrawal Made Any Other Time. If a withdrawal request is made at any time other than that mentioned in subsection (1) of this section, a presiding officer shall use discretion in allowing or disallowing the request.

(Code 1966 § 17.50.070; Ord. 1269 § 1, 1997)

Written Recommendations and Decisions. For permits that require city council approval that have not been heard by the city council, the report of findings, conclusions and recommendations shall be forwarded to the city council and the parties of record after the conclusion of a public hearing. The findings, conclusions and recommendations shall indicate how the recommendations carry out the goals, policies, plans and requirements of the CMC and other policies and objectives of the city.

Content of Recommendation or Decision. A recommendation shall include a statement of the proceeding:

The nature and background of the proceeding;

Findings of Fact. The findings shall include not only the findings of the ultimate facts but also the basic facts leading up to the ultimate questions. The findings shall be based exclusively on the evidence presented in the hearing and those matters officially noticed. The findings of fact shall consist of a concise statement of each fact found upon each contested issue of fact;

Conclusions. Whenever practical, the conclusions shall be referenced to specific provisions of the law and regulations or both, together with reasons and precedents relied upon to support the same. The conclusions shall make reference to the effect of the recommendation with reference to the comprehensive plan, as well as the effect of both approval and denial on property in the vicinity, business or commercial aspects, if relevant, and on the general public. Specific criteria in city ordinances or state statutes must be referenced as a basis for the decision;

The Appropriate Rule, Order or Relief. The recommendation shall be based upon a consideration of the whole record and supported by reliable, probative and substantial evidence.

Procedure for Reconsideration and Reopening Hearing.

At any time prior to the filing of the final decision or recommendation, a presiding officer may reopen the proceeding for the reception of further evidence. All parties of record shall be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments.

If within five days after the public hearing any party of record petitions a presiding officer for a reopening of the hearing, a presiding officer shall have discretion to reopen the hearing to consider new testimony or new evidence that was unavailable at the time of the hearing.

Article II Rules Of Procedure For Appeals Of Land Use Decisions

Reconsideration. Any interested person may file a written request with a presiding officer for reconsideration within five working days of the date of a land use decision maker's recommendation or decision. The request shall explicitly set forth alleged errors of procedure or fact. The presiding officer shall act within 10 working days after the date of the filing of the request for reconsideration by either denying the request, issuing a revised recommendation or calling for an additional public hearing. If an additional hearing is called for, the notice of said hearing shall be mailed to all parties of record not less than seven calendar days prior to the hearing date.

(Code 1966 § 17.50.080; Ord. 1269 § 1, 1997)

§ 17.90.090 Appeals.

When all reconsideration periods have expired and a land use decision maker has issued a final decision, the decision may be appealed to the city council or to superior court if heard and decided by the city council as specified in the rules of appeal found in Article II of this chapter. Appeals to the city council must be made in writing and filed with the city clerk no later than 15 calendar days after the date of a land use decision maker's final action. Any appeal must clearly state the alleged errors of fact or law and include a specific request for relief.

(Code 1966 § 17.50.090; Ord. 1269 § 1, 1997)

§ 17.90.100 Conflicts.

These rules of procedure are adopted to supersede any inconsistent requirements found in city ordinances in effect on the day the ordinance codified in this chapter was adopted. This chapter is intended to supplement and not supplant the requirements set forth in state statutes relating to land use procedures.

(Code 1966 § 17.50.100; Ord. 1269 § 1, 1997)

§ 17.90.110 Purpose of rules of procedure.

It is in the best interest of the city to establish a single, efficient, integrated system for hearing and deciding appeals of land use decisions. The system should be understandable to all citizens, consistent with state law and designed to allow the city council to review those decisions where a mistake of fact or law has allegedly been made or where new evidence has become available that was not available at the time of the administrative decision.

(Code 1966 § 17.50.110; Ord. 1269 § 1, 1997)

§ 17.90.120 Scope of appeals process.

This appeals process shall apply to review of decisions made by the following land use administrative decision makers:

Zoning official;

Hearing examiner;

Planning commission.

For the purpose of this chapter, the individuals and commission listed in subsection (1) of this section shall be known as land use administrative decision makers.

This chapter shall apply to appeals of the following decisions:

Variances;

Conditional uses;

Preliminary plans;

SEPA actions.

(Code 1966 § 17.50.120; Ord. 1269 § 1, 1997; Ord. 1476 § 1, 2010)

§ 17.90.130 Right of appeal.

Any person adversely affected by a decision or recommendation of a land use administrative decision maker, who participated in the public hearing on the application, shall have the right to appeal the decision or recommendation to the city council.

The city council shall make the final decision in all appeals.

If the appeal does not involve a decision or recommendation of the hearing examiner, the city council may delegate to the hearing examiner the authority to hear the appeal and make a final decision.

(Code 1966 § 17.50.130; Ord. 1269 § 1, 1997)

§ 17.90.140 Time for filing.

All appeals must be filed in writing with the city clerk within 15 working days of the date of the decision appealed from.

(Code 1966 § 17.50.140; Ord. 1269 § 1, 1997)

§ 17.90.150 Content of appeal.

All appeals must specify the errors of law, errors of fact, errors of procedure or new evidence now available that was not available at the time of the hearing on the matter appealed from.

The appeal shall also state the names and addresses of the persons appealing, their legal counsel (if any), and the name of the contact person with a daytime phone number. The attorney or contact person shall be the one person the city may contact regarding procedural aspects of the appeal.

The appeal must contain a specific request for relief stating what the appellants would like to see happen as a result of the appeal.

(Code 1966 § 17.50.150; Ord. 1269 § 1, 1997)

§ 17.90.160 Fee for appeal.

Each appeal must be accompanied by a fee in the amount of $75.00.

(Code 1966 § 17.50.160; Ord. 1269 § 1, 1997)

§ 17.90.170 Record of decision.

The appellants must provide a certified written transcript of the record (if any) of the decision appealed from, which shall include all exhibits considered by the land use administrative decision maker. Certification may be by the administrative land use decision maker, the city clerk, or a representative of the appellants if such certification is given under oath.

(Code 1966 § 17.50.170; Ord. 1269 § 1, 1997)

§ 17.90.180 Hearing procedure.

All appeals shall be reviewed based on the testimony and exhibit contained in the record of decision.

The appellants shall have a total of 15 minutes of oral argument to present their appeal to the city council. The appellants may also provide supplementary written material of up to 10 pages in length to explain the basis for the appeal.