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.
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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