Chapter 20.06
OPEN RECORD PUBLIC HEARINGS
Sections:
20.06.000 General.
20.06.001 Joint public hearings.
20.06.002 Responsibility of director for hearing.
20.06.003 Conflict of interest.
20.06.004 Ex parte communications.
20.06.005 Disqualification.
20.06.006 Burden and nature of proof.
20.06.007 Order of proceedings.
20.06.008 Decision.
20.06.009 Notice of final decision.
20.06.010 Reconsideration of decision.
20.06.000 General.
A. An open record public hearing is a hearing conducted by an authorized body or officer that creates the city’s record through testimony and submission of evidence and information. A public hearing may be held prior to the city’s decision on a development project permit application; this is an “open record predecision hearing.” A public hearing may be held on an appeal if no open record predecision hearing was held for the permit; this is an “open record appeal hearing.”
B. Open record predecision hearings on all Type III and IV permit applications and open record appeal hearings on all Type II decision appeals shall be conducted in accordance with this chapter. Public hearings conducted by the city hearing examiner shall also be subject to the hearing examiner’s rules.
C. Unless otherwise provided, appeals of Type II decisions shall be initiated as set forth in ECDC 20.07.004. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009. Formerly 20.06.001].
20.06.001 Joint public hearings.
A. Decision to Hold Joint Hearing. The development services director or his/her designee (hereinafter the “director”) may combine any public hearing on a project application with any hearing that may be held by another local, state, regional, federal, or other agency, on the proposed action, as long as 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 chapter. In the alternative, the applicant may agree to a particular schedule if 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 city, when:
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 statutes, ordinances, or rules;
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 hearing; or
4. The hearing is held within the geographic boundary of the city. [Ord. 3817 § 5, 2010].
20.06.002 Responsibility of director for hearing.
The director shall:
A. Schedule project applications for review and public hearing;
B. Verify compliance with notice requirements;
C. Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal 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 also describe any mitigation required or proposed under the city’s development regulations or SEPA authority. If the threshold determination, other than a determination of significance, has not been issued previously by the city, the report shall include or append this determination;
D. Prepare the notice of decision, if required by the hearing body, and mail a copy of the notice of decision to those entitled by this chapter to receive the decision. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.003 Conflict of interest.
The hearing body shall be subject to the code of ethics, prohibitions on conflict of interest and appearance of fairness doctrine as set forth in Chapter 42.23 RCW, and Chapter 42.36 RCW as the same now exists or may hereafter be amended. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.004 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 regarding procedural aspects necessary for maintaining an orderly process, unless he or she provides notice and opportunity for all parties to participate. Nothing herein shall prevent the hearing body from seeking legal advice from its legal counsel on any issue.
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 a member of the hearing body receives an ex parte communication in violation of this section, he or she shall place in the record:
1. All written communications received;
2. All written responses to the communications;
3. The substance of all oral communications received, and all responses made; and
4. The identity of each person from whom the 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 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. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.005 Disqualification.
A. Any member who is disqualified shall make full disclosure to the audience of the reason(s) for the disqualification, abstain from voting on the proposal, and physically leave the hearing.
B. If enough members of the hearing body are disqualified so that a quorum cannot be achieved, then all members present, after stating their reasons for disqualification, shall be prequalified and deliberations shall proceed. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.006 Burden and nature of proof.
A. Except for Type V actions, appeal of Type II actions and closed record appeals, the burden of proof is on the proponent. The development project permit application must be supported by convincing proof that it conforms to the applicable elements of the city’s development regulations and comprehensive plan (review criteria). The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated.
B. In an appeal of Type II actions or closed record appeal, the appellant has the burden of proof with respect to points raised on appeal.
C. In a closed record appeal of the architectural design board, its decision shall be given substantial deference regarding decision review within its expertise and contained in its decisions. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.007 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 testimony and other evidence 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 may proceed or terminate the proceeding;
2. Any member disqualifications shall be determined.
B. The presiding officer may take official notice of commonly known and accepted information, such as:
1. Ordinances, resolutions, rules, officially adopted development standards, and state law;
2. Public records and facts judicially noticeable by law.
C. Information officially noticed need not be proved by submission of formal evidence to be considered by the hearing body. Parties requesting official notice of any information shall do so on the record. The hearing body, however, may take notice of matters listed in subsection (B) of this section at any time. Any information given official notice may be rebutted.
D. The hearing body may view the proposed project site or planning area with or without notification to the parties, but shall put into the record a statement setting forth the time, manner and circumstances of the site visit.
E. Information shall be received from the staff and from proponents and opponents. The presiding officer may, in his or her discretion, permit persons attending the hearing to ask questions. Unless the presiding officer specifies otherwise, approved questions will be asked of persons submitting testimony by the presiding officer.
F. When the presiding officer has closed the public comment portion of the hearing, the hearing body may openly discuss the issue and may further question the staff or any person submitting information. An opportunity to present rebuttal shall be provided if new information is presented in the questioning. When all evidence has been presented and all questioning and rebuttal completed, the presiding officer shall officially close the record and end the hearing. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.008 Decision.
A. Following the hearing procedure described in ECDC 20.06.007, the hearing body shall approve, conditionally approve, or deny the application. If the hearing is an appeal, the hearing body shall affirm, reverse or, with the written consent of the applicant, which shall include a waiver of the statutory prohibition against two open record hearings, remand the decision for additional information.
B. The hearing body’s written decision shall be issued within 10 working days after the close of record of the hearing and within 90 days of the opening of the hearing, unless a longer period is agreed to by the parties.
C. The city shall provide a notice of decision as provided in ECDC 20.06.009.
D. If the city is unable to issue its final decision on an 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. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.009 Notice of final decision.
A. The director shall issue a notice of final decision within 120 days of the issuance of the determination of completeness pursuant to ECDC 20.02.003; provided, that the time period for issuance of a notice of final decision on a preliminary plat shall be 90 days, for a final plat 30 days, and a final short plat 30 days. The notice shall include the SEPA threshold determination for the proposal and a description of any available administrative appeals. For Type II, III and IV permits, the notice shall contain the requirements set forth in ECDC 20.06.002(C) and explain that affected property owners may request a change in property tax valuation notwithstanding any program of revaluation.
1. The notice of final decision shall be mailed or otherwise delivered to the applicant, to any person who submitted comments on the application or requested a copy of the decision, and to the Snohomish County assessor.
2. Notice of the decision shall be provided to the public by any means deemed reasonable by the director.
B. In calculating the 120-day period for issuance of the notice of final decision, or other decision period specified in subsection (A) of this section, the following periods shall be excluded:
1. Any period during which the applicant has been requested by the director to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the director notifies the applicant of the need for additional information until the earlier of the dates the director determines that the additional information provided satisfies the request for information, or 14 days after the date the additional information is provided to the city;
2. If the director determines that the information submitted is insufficient, the applicant shall be informed of the deficiencies and the procedures set forth in subsection (B)(1) of this section for calculating the exclusion period shall apply;
3. Any period during which an environmental impact statement (EIS) is being prepared pursuant to Chapter 43.21C RCW and Chapter 20.15A ECDC. The time period for preparation of an EIS shall be governed by Chapter 20.15A ECDC;
4. Any period for consideration and issuance of a decision for administrative appeals of development project permits, which shall be not more than 90 days for open record appeals and 60 days for closed record appeals, unless a longer period is agreed to by the director and the applicant;
5. Any extension of time mutually agreed to by the director and the applicant in writing.
C. The time limits established in this title do not apply if a permit application:
1. Requires an amendment to the comprehensive plan or a development regulation;
2. Requires siting approval of an essential public facility as provided in RCW 36.70A.200; or
3. Is substantially revised by the applicant, in which case the time period shall start from the date that a determination of completeness for the revised application is issued by the director pursuant to ECDC 20.02.003 and RCW 36.70B.070. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].
20.06.010 Reconsideration of decision.
A. General. Any person identified in ECDC 20.07.003 as having standing to file an administrative appeal may request reconsideration of a decision of the hearing examiner which issues immediately after the open record public hearing on a permit application described in this chapter. (There shall be no reconsideration of a decision of the director (staff), ADB or city council.) Reconsideration is not a condition precedent to any appeal. Reconsideration shall be limited to:
1. Error(s) of procedure;
2. Error(s) of law or fact;
3. Error(s) of judgment; and/or
4. The discovery of new evidence that was not known and could not, in the exercise of reasonable diligence, have been discovered.
B. Time to File. A request for reconsideration, including reconsideration fee, must be filed with the director within 10 calendar days of the hearing examiner’s written decision. Such requests shall be delivered to the director before 4:00 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 4:00 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were sent, mailed or postmarked.
C. Computation of Time. For the purposes of computing the time for filing a request for reconsideration, the day the hearing examiner’s decision is issued shall not be counted. If the last day of the reconsideration is a Saturday, Sunday, or holiday designated by RCW 1.16.050, or by a city ordinance, then the reconsideration may be filed on the next business day.
D. Content of Request for Reconsideration. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee, and contain the following information:
1. The name, address and phone number of the requestor;
2. Identification of the application and final decision which is the subject of the request for reconsideration;
3. Requestor’s statement of grounds for reconsideration and the facts upon which the request is based;
4. The specific relief requested;
5. A statement that the requestor believes the contents of the request to be true, followed by his/her signature.
6. All written submittals should be typed on letter size paper (eight and one-half by 11), with one-inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12), single sided.
E. Effect. The timely filing of a request for reconsideration shall stay the hearing examiner’s decision until such time as the hearing examiner issues a decision on reconsideration.
F. Notice of Request for Reconsideration. The director shall provide mailed notice that a request for reconsideration has been filed to all parties of record as defined in ECDC 20.07.003.
G. Hearing Examiner’s Action on Request. The hearing examiner shall consider the request for reconsideration without a hearing, but may solicit written arguments from parties of record. A decision on the request for reconsideration shall be issued within 10 business days after receipt of the request for reconsideration by the city.
1. The time period for appeal shall recommence and be the same for all parties of record, regardless of whether a party filed a motion for reconsideration.
2. Only one request for reconsideration may be made by a party of record. Any ground not stated in the initial motion is waived.
3. A decision on reconsideration or a matter that is remanded to the hearing examiner by the city council is not subject to a motion for reconsideration.
H. Limitations on Hearing Examiner’s Reconsideration. The hearing examiner shall consider the request for reconsideration based on the administrative record compiled on the application up to and including the date of the hearing examiner’s decision. The hearing examiner may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the record and the hearing examiner’s decision. The reconsideration decision issued by the hearing examiner may modify, affirm or reverse the hearing examiner’s decision.
I. Notice of Final Decision on Reconsideration. The director shall issue a notice of final decision on reconsideration in the manner set forth and to the persons identified in ECDC 20.06.009.
J. Further Appeals. If no administrative appeal is allowed of the hearing examiner’s decision, and a request for reconsideration was timely filed, then any judicial appeal must be filed within 21 days after issuance of the decision on reconsideration, as provided in Chapter 36.70C RCW. [Ord. 3817 § 5, 2010; Ord. 3736 § 4 (Exh. A), 2009].