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Resolution 499RESOLUTION NO. 499 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, CONCURRING IN THE ADOPTION OF PROPOSED RULES GOVERNING LAND USE AND ZONING PROCEEDINGS BEFORE THE EDMONDS HEARING EXAMINER. WHEREAS, the Edmonds City Council established a Hearing Examiner's system by means of an ordinance passed on December 2, 1980 pursuant to the authority delegated by the State Legislature appearing in R.C.W. 35A.63.170; WHEREAS, the Edmonds Community Development Code, Section 20.100.010 provides that the Hearing Examiner shall hear certain land use and zoning permits and approvals; and WHEREAS, it is in the interest of the City of Edmonds; that such proceedings be conducted according to rules specifying the nature and conduct of public hearings; the rights of parties to such proceedings; the procedure for withdrawal of applications or petitions, the procedure, form, and content of the Hearing Examiner's recommendations and reconsiderations or appeals thereto, as well as the nature and scope of ex parte communications, and WHEREAS, the Hearing Examiners, as a person charged with holding public hearings, is required by section 20.90.020(e) of the Community Development.Code to adopt rules of procedure with the concurrence of this City Council: THE CITY COUNCIL OF THE CITY OF EDMONDS, OF WASHINGTON HEREBY RESOLVES AS FOLLOWS: Section 1. It is the intention of the City Council to concur in the adoption of the proposed rules governing land use and zoning proceedings of the Edmonds Hearing Examiner, a copy of which are attached hereto and marked as Exhibit A, and which are a part of this resolution by reference as if fully set forth herein. RESOLVED this 19 day of 'Play,' 1981. APPROVED: MAYOR, H. H. HARRISON ATTEST /AUTHENTICATED: CITY CLERK, IRENF4VARNEY MORAN FILED WITH THE CITY CLERK: April 3, 1981 CONTENTS I. DEFINITIONS.. . ....... ..............................1 1.1 Definitions ...... ..............................1 II. EX PARTE COMMUNICATIONS .............................2 2.1 Expiditious Proceedings ........................2 2.2 Ex Parte Communications ........................2 III. NATURE OF PROCEEDINGS . ..............................2 3.1 Frequency ........ ..............................2 3.2 Presiding Officials ............................2 3.3 Interference ..... ..............................3 3.4 Format.... 0 . 0 .... . . . . . . . . . . . . . . . . 00 . . . . . . . . . **.3 3.5 Conduct of Hearings...,.-._.,.,.,.,., .... 3 3.6 View Trip ........ ..............................3 3.7 Record of Hearings .............................4 IV. COMPUTATION OF TIME ... ..............................4 V. RIGHTS OF PARTIES ..... ..............................4 5.1 Rights of Parties ..............................4 5.2 Notice of Requirements of Hearings and Filings .......... ..............................4 5.3 Presence of Legal Counsel at Public Hearings or Meetings ...........................5 VI. CONDUCT OF HEARINGS ... ..............................5 6.1 Content of the Record ..........................5 6.2 Development of the Record ......................5 6.3 Legal Counsel .... ..............................5 6.4 Content and Form of Staff Reports ..............6 6.5 Evidence ......... ..............................7 6.6 Continuation of Hearing .........................8 i. VII. WITHDRAWAL OF APPLICATION OR PETITION ..............8 7.1 Withdrawal Prior to Service o Official Notice ........... ..............................8 7.2 Withdrawal Made Any Other Time .................8 VIII. RECOMMENDATIONS ....... ..............................8 8.1 Written Recommendations —c Decisions ........... 8 8.2 Content of Recommendations and Decisions ....... 8 8.3 Procedure for Reopening Hearing or Rehearing ........ ..............................9 IX. APPEALS ............. ..............................9 ii RULES .OF GENERAL APPLICATION RULES OF PROCEDURE FOR PROCEEDINGS BEFORE HEARING EXAMINER OF THE CITY OF EDMONDS, WASHINGTON Pursuant to Chapter 20.100 of the City Code of the City of Edmonds, Washington, the following constitutes all land use and zoning procedures to be followed before all hearings in front of the Hearing Examiner of the City of .Edmonds, Washington. I. DEFINITIONS 1.1 Definitions "Applicant" means those applying to the City of Edmonds for approval of land uses that conform" to the City's land use ordinances. "City" means the City of Edmonds, Washington. "Code" means the City Code of the City of Edmonds, Washington. "Council" means the Edmonds City Council. "Departmental Staff" means the departments of the City of Edmonds, Washington. "Examiner" means the Hearing Examiner of the City of Edmonds, Washington. "Ex parte communication" means written or oral communications not included in the public record and made outside the public hearing. "Interested Person" means any individual, partnership, corporation, association, or public or private organization of any character, significantly affected by or interested in proceedings before the Hearing Examiner and shall include any party in a contested case. "Party of Record" means: a. person who testifies at a hearing; b. the applicant, developer or any of their agents; or c. persons submitting written arguments dealing with the merits of a case. 1 II. EX PARTE COMMUNICATIONS 2.1 Expeditious Proceedings It is the policy of the Office of the Hearing Examiner that, to the extent practicable and consistent with requirements of law, public hearings shall be conducted expeditiously. In the conduct of all such proceeedings the Hearing Examiner and all parties, or their agents, shall make every effort at each stage of a proceeding to avoid delay. 2.2 Ex Parte Communications (a) No person, nor his or her agent, employee, or representative, who is interested in a particular petition or application which is designated for an adjudicatory hearing shall communicate ex parte, directly or indirectly, with the Hearing Examiner concerning the merits of that particular hearing or a factually related petition or application. This rule shall not prohibit ex parte communication concerning procedural matters. (b) The Hearing Examiner shall not communicate ex parte directly or indirectly with any person, not his or her agent, employee or representative, interested in a particular petition or application which is designated for an adjudicatory hearing, with regard to the merits of that particular hearing, or a factually relateds petition or application. This rule shall not prohibit ex parte communications concerning procedural matters, nor assistance to the Hearing Examiner in viewing the land or buildings involved in the Hearings. (c) If a substantial prohibited ex parte communication is made to or by the Hearing Examiner, such communication shall be publicly disclosed, and proper discretion shall be exercised by the Hearing Examiner on whether to disqualify himself or herself as Hearing Examiner for that particular Hearing. III. NATURE OFF PROCEEDINGS 3.1 Frequency Hearings will normally be scheduled every other week or as the docket dictates. Consistent with the requirements of expedition, hearings may be held on a more frequent basis. 3.2 Presiding Officials (a) Hearings and administrative proceedings shall be presided over by a duly qualified Hearing Examiner. (b) Should the Hearing Examiner be disqualified for any reason, a Pro Tem Hearing Examiner may be appointed p rsuant to Chapter 10.35.010, Code of Edmonds. 2 3.3 3.4 3.5 3 .6 Interfer nce In the performance of his or her adjudicative functions, the Hearing Examiner shall not be responsible) to, or subject to, the supervision or direction of any municipal official, officer, employee, or agent of any municipal department of the City of Edmonds, other than those that are set forth in Chapter 1-0--3'5- of the City of Edmonds code. - 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 the Hearing Examiner. Conduct Of Hearings The Hearing Examiner shall have all the authority and duties as granted to him or her by Chapter 20.100 of the Code of the City of Edmonds. Included in the authority and duties that the Hearing Examiner shall have is to conduct fair and impartial hearings, make all necessary action to avoid delay in the disposition of proceedings, and to maintain order. He or she shall have all powers necessary to that end, including the following: (a) To administer oaths and affirmations; (b) To issue subpoenas; (c) To rule upon offers of proof and receive .evidence; (d) To regulate the course of the hearings and the conduct of the parties and their agents; (e) To question any party presenting testimony at the hearings; (f) To hold conferences for settlements, simplification of the issues,or any other proper purpose; (g) To consider and, rule upon all procedural and other motions appropriate to the proceedings; and (h) To makefnali recommendations or decisions. .View Trip When necessary to a full understanding of the case, the Hearing Examiner shall inspect-the -Site prior or subsequent- to the hearing. 3 3.7 Record of Hearing (a) Electronic Recordation. 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 on request and the reasonable cost of such copying shall be paid by the requester. (b) 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. IV. COMPUTATION OFF 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 national or state holiday, the period shall run until the end of the next following business day. , V. RIGHTS OF PARTIES 5.1 Rights of Parties Each applicant shall have the right of due notice, due process, cross - examination (rebuttal), presentation of evidence, objection, motion, argument, and all other rights essential to a fair hearing. The Hearing Examiner ,,@ay 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. 5.2 Notice of Requirements _f Hearings and Filings (a) All notice and time requirements and methods of notification shall be governed by the standards as set forth in Chapter 20.90 of the City of Edmonds. (b) Method of Notification: 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 ten (10) days prior to such hearing as follows: 1. Posting of the property in three conspicuous places: and 2. Mailing notification to property owners per County Assessor records within 80 feet of the subject property and identified neighborhood groups who have requested notice of land use matters. 4 (c) Affidavit of Notice: A notarized affidavit attesting to the written notice of a given public hearing shall be made a part of each official case record. 5.3 Presence of. beg al _Qournsel at Public Hearings or Meetings (a) All parties participating in the hearings will be allowed to be represented at the hearings by legal counsel of their choice. Representation by legal counsel is not necessary at the hearings. (b) At the request and discretion of the Hearing Examiner, a representative of the City Attorney's Office may be present at the public hearings or meeting to advise on matters of law and procedure. VI. CONDUCT QFF HEARINGS 6.1 Conduct of Record The record of a hearing conducted by the Hearing Examiner shall include, but not be limited to, the following materials: (a) The application or petition; (b) The departmental staff reports; (c) All evidence received or considered, which shall include all exhibits and other materials filed; (d) A statement of all matters officially noticed; (e) A decision or a recommended decision containing the findings and conclusions of the Hearing Examiner; (f) Recordings made on electronic equipment; and (g) An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA). 6.2 Development of Record A public hearing shall include, but not be limited to, the following elements: a brief introductory statement by the Examiner; a report by the. departmental staff which shall include introduction of the official file, reference to visual aids (maps), and a summary of the recommendation of the Department; testimony by the applicant or petitioner; testimony in support of the application; testimony in opposition to the application; opportunity for cross - examination and re- buttal; and opportunity for questions by the Hearing Examiner. 6.3 Legal Counsel Parties will be allowed to be represented by legal counsel at all stages of the hearings. 5 6.4 Contents and Form of Staff Reports The Staff Report shall include the following: (a) The names and addresses of the owner (s) and applicants (s) of the subject property. (b) A brief summary of the requested action. (c) A common description of the subject property and a legal description of the subject property. (d) A technical data summary of the Comprehensive Plan designations and zoning designations of the subject propery; the current developments of the subject property and the adjoining properties; topographical information; geological and soils information; and information relative to the vegetation on the property. (e) The current access to the property and the proposed access the subject property. (f) An indepth analysis of the proposed project and its potential effects on the following elements of the City: 1. Natural features: 2. Character and design, including population figures; 3. Human resources; 4. Housing; 5. Economic development; 6. Transportation; 7. Community facilities, services and institutions; 8.. Government jurisdiction boundaries; 9. Neighborhoods; 10. Data from Comprehensive Plans; and 11. 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 developments and the problem of character of the proposal. (j) A summary of the reports or recommendations of any other agencies consulted. G C (k) Appropriate maps of the subject property. (1) The result of the determination pursuant to the State Environmental Policy Act. (m) Staff's conclusions and recommendations. (n) Summary of public input or reaction to the proposal. 6.5 Evidence (a) 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. (b) Admissibility. The hearings generally will not be conducted according to technical rules relating to evidence. Any relevant evidence shall be admitted if it is the type which possesses probative value commonly accepted by reasonable prudent persons in the conduct of their affairs. The rules of privilege shall be effective to the extent recognized by law. The Hearing Examiner shall retain discretion of the admissibility of all evidence. (c) Copies. Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original. (d) Official notice. The Hearing Examiner may take official notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within his or her specialized knowledge. When any recommendation or decision of Hearing Examiner rest, in whole or in part, upon the taking of official notice of a material fact not appearing in evidence of record, opportunity to disprove such fact shall be granted any affected person making timely motion therefore. The Hearing Examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding. (e) Evidence received subsequent to the 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. (f) 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. 7 WOMM (a) Cause. The Hearing Examiner may continue or reopen proceedings for any good cause he or she deems reasonable and appropriate provided an order is entered prior to the filing of the recommendation or decision. (b) Notification. If the Hearing Examiner determines at a hearing that there is good cause to continue such proceeding and specifies the date, time and place, no further notice is required. When determination for further hearing is made flowing a hearing on a given matter, all parties of record shall be provided not less than five (5) days notice of the date, time, place and nature of the subsequent hearing. Such notice shall also be published in the City official newspaper, . if notice by publication was required by the original hearing. VII. WITHDRAWAL OF APPLICATIO OR PETITION 7.1 Withdrawal Prior to Service of Official Notice If a withdrawal request is made before the official notice of the public hearing is served, the applicant or petitioner shall notify the Planning Department of the withdrawal request and the withdrawal shall be automatically permitted. 7.2 Withdrawal Made Any Other Time If a withdrawal request is made at any time other than that mentioned in 7.1, the Hearing Examiner shall use discretion in allowing or disallowing the request. VIII. RECOMMENDATIONS OR DECISIONS 8.1 Written Recommendations DL Decisions A written report of findings, conclusions, and recommendations or decisions 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 policies and requirements of the land use codes for the City of Edmonds. 8.2 Content of Recommendations and Decisions A recommendation or decision shall include a statement of: (a) The nature and background of the proceeding. (b) 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 question. 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. . i (c) Conclusions. Whenever practical, the conlusions 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 decisions 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. (d) The appropriate rule, order or relief. The decision shall be based upon a consideration of the whole record and supported by reliable, probative and substantial evidence. 8.3 Procedure for Reopening Hearing DL Rehearing (a) At any time prior to the filing of the recommendation or decision, the Hearing Examiner may reopen the proceedings 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. (b) If within five (5) days after the public hearing any party of record petitions the Hearing Examiner for a reopening of the hearing, the Hearing Examiner shall have discretion to reopen the hearing to consider new testimony or new evidence that was unavailable at the time of the hearing. (c) Reconsideration. Any interested person may file a written request with the Hearing Examiner for reconsideration within ten (10) days of the date of the Hearing Examiner's recommendation. The request shall explicitly set forth alleged errors of procedure or fact. The Hearing Examiner shall act within ten (10) 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, notice of set hearing shall be mailed to all parties of record not less than seven (7) days prior to the hearing date. XI. APPEALS 9.1 Appeals Decisions may be appealed to the City Council. Appeals must be written and be filed with the Department of Planning, City of Edmonds, not later than ten (10) days after the date of the Hearing Examiner's final action. E