ORDINANCE 2006-16
(AN ORDINANCE ESTABLISHING SKAMANIA COUNTY CODE CHAPTER 2.80 – OFFICE OF HEARING EXAMINER)
WHEREAS, Counties in
WHEREAS, under a hearing examiner system, a County hires or contracts with a hearing examiner to conduct quasi-judicial hearings, usually in place of local bodies such as the Planning Commission, the Board of Adjustment, and the Board of County Commissioners; and,
WHEREAS, the basic purpose of having a hearing examiner conduct these hearings is to have a professionally-trained individual, usually an attorney, make objective quasi-judicial decisions that are supported by an adequate public record and that are free from political influences; and,
WHEREAS, using a hearing examiner system allows local legislative and advisory bodies that might otherwise conduct these hearings to better concentrate on policy-making and potentially reduce local government liability exposure through what should be more consistent and legally-sustainable quasi-judicial decisions; and,
Whereas, on
WHEREAS, on
WHEREAS, on
WHEREAS, on
Whereas, notice of the public hearing was provided in the official newspaper of general circulation at least 10 days prior to the public hearing, meeting the notification requirements; and,
Whereas, on
NOW THEREFORE BE IT HEREBY ORDAINED
Chapter 2.80
Office of Hearing Examiner
Sections:
2.80.010 Purpose
2.80.020 Office of Hearing Examiner - Creation
2.80.030 Qualifications
2.80.040 Appointment
2.80.050 Deputy Hearing Examiner
2.80.060 Authority and Duties
2.80.070 Freedom from Improper Influence
2.80.080 Conflict of Interest
2.80.090 Applications
2.80.100 Public Hearings
2.80.110 Reports of Departments
2.80.120 Continuances
2.80.130 Hearing Examiner’s Decision and Recommendation
2.80.140 Appeal of Hearing Examiner Decision
2.80.150 Annual Report to the Board of
2.80.160 Scheduling
2.80.010 Purpose
The purpose of this chapter is to provide an administrative land use regulatory system which will separate the county’s land use regulatory function from its land use legislative planning function; ensure and expand the principles of fairness and due process in public hearings; and to provide an efficient and effective land use regulatory system which integrates the public hearing and decision making processes for land use matters.
2.80.020 Office of Hearing Examiner - Creation
The office of the hearing examiner is created by the Board of County Commissioners. The Hearing Examiner shall interpret, review and implement land use regulations, hear appeals from permits, decisions or determinations made by a county official as set forth in this chapter, and review and hear other matters as provided for in this code and other ordinances. The term “Hearing Examiner” shall likewise include the Deputy Hearing Examiner.
2.80.030 Qualifications
The Skamania County Board of
2.80.040 Appointment
The Hearing Examiner shall be appointed by and serve at the pleasure of the Board of County Commissioners. This position will be a professional services contract position, reimbursement for which will be prescribed by the contract between the County and the Hearings Examiner.
2.80.050 Deputy Hearing Examiner
The Board of County Commissioners may appoint one or more Deputy Hearing Examiners. The Deputy Hearing Examiner shall, in the event of the absence or the inability of the Hearing Examiner to act, have all the duties and powers of the Hearing Examiner. The Deputy Hearing Examiner shall have such training or experiences as to satisfy Section 2.80.030 (above).
2.80.060 Authority and Duties
A. The Hearing Examiner shall receive and examine available relevant information, including environmental documents, conduct public hearings, cause preparation of a record thereof, prepare and enter finding and conclusions based on those facts for the following:
1. Preliminary subdivisions as a final decision of the legislative body;
2. Amendments and/or alterations to subdivisions (preliminary and final plats);
3. Petitions for subdivision (plat) or short plat vacations;
4. Applications for shoreline management substantial development permits, variances, conditional use permits and nonconforming use permits pursuant to the shoreline management act and shoreline master program (Title 20);
5. Quasi-Judicial (individual) Rezone requests;
6. Quasi-Judicial (individual) Comprehensive Plan or Subarea Plan amendment requests;
7. Applications for Title 21 variances and conditional use permits;
8. Requests for the alteration, expansion or replacement of a nonconforming use under Title 21;
9. Applications for Critical Area Variances;
10. Appeals alleging an error in a decision of the Planning Director in the interpretation or the enforcement of violations of the zoning code or any other development regulation under the Planning Department jurisdiction;
11. Appeals alleging error in decisions by the Planning Director in taking action on a short plat;
12. Appeals alleging error in Administrative Decisions issued under Title 22 (National Scenic Area);
13. Appeals alleging error in Threshold Determinations issued by the SEPA Responsible Official.
14. Any other matters as specifically assigned to the Hearing Examiner by the Board of County Commissioners or as prescribed by the Skamania County Code.
B. The decision of the Hearing Examiner on all matters is final and conclusive, unless appealed pursuant to Section 2.80.140 of this chapter.
C. The Hearing Examiner’s decision shall be based upon the policies of the applicable comprehensive plan, shoreline master program, the standards set forth in the various development regulations of the county or any other applicable program adopted by the Board of County Commissioners. When acting upon any of the above specific applications or appeals, the Hearing Examiner may attach reasonable conditions found necessary to make the project compatible with its location and to carry out the goals and policies of the applicable comprehensive plan, shoreline master program, or other applicable plans or programs adopted by the Board of County Commissioners.
D. The Hearing Examiner shall conduct public hearings pursuant to Titles 16, 17, 18, 20, 21, 21A, 22 and 23 of this code, and conduct such other hearings or meetings, as the Board of County Commissioners may from time to time deem appropriate.
2.80.070 Freedom from Improper Influence
No person, including county officials, elective or appointive, shall attempt to influence the Hearing Examiner or Deputy Hearing Examiner in any matter there before pending, except at a public hearing duly called for such purpose. No person, including county officials, elective or appointive, shall interfere with such Hearing Examiner in the performance of his or her duties in any other way, except that an official or employee of the county may, in the performance of official duties, provide information to a Hearing Examiner when such action is thereafter disclosed prior to the use of such information at public hearings or meetings. This section does not prohibit the prosecuting attorney from rendering legal services to a Hearing Examiner, when such services are not otherwise prohibited at law or by conflict.
2.80.080 Conflict of Interest
A. The Hearing Examiner shall not conduct or participate in any hearing or decision in which the Hearing Examiner or the Hearing Examiner’s family members, business partners, former business partners, clients, or former clients has a direct or substantial financial interest:
B. The Hearing Examiner shall not conduct or participate in any hearing or decision in which the Hearing Examiner is negotiating for or has an arrangement or understanding concerning possible partnership or employment;
C. The Hearing Examiner shall not conduct or participate in any hearing or decision in which the Hearing Examiner has a direct or indirect personal interest that might exert such influence upon the Hearing Examiner that might interfere with his or her decision making process.
D. Participants in the land use regulatory process have the right, insofar as possible, to have the Hearing Examiner, (or Deputy Hearing Examiner) free from personal interest or pre-hearing contacts on land use regulatory matters considered by them. It is recognized that there is a countervailing public right to free access to public officials on any matter. Therefore, the Hearing Examiner shall reveal any substantial interest or pre-hearing contact made with them concerning the proceeding, at the commencement of such proceeding. If such interest or contact impairs the Hearing Examiner’s ability to act on the matter, such person shall so state and shall abstain there from to the end so that the proceeding is fair and has the appearance of fairness.
E. Immediately after the announcement of any interest or pre-hearing contact, any person who objects to the interest or pre-hearing contact shall state the objection and any reasons supporting the objection. The failure to state such an objection at the time of announcement is deemed to be a waiver of the objection. Therefore, this objection cannot be raised for the first time at any subsequent time.
F. The Hearing Examiner or Deputy Hearing Examiner, upon hearing an objection, shall personally decide whether the interest or contact will impair his or her ability to be fair and impartial, and shall hear the case or abstain accordingly.
2.80.090 Applications
Applications for all matters to be heard by the Hearing Examiner shall be presented to the Department of Planning and Community Development, to be processed according to the applicable provisions of the Code. The Planning Director, or the Planning Director’s designee, shall be responsible for assigning a date for the public hearing, and providing relevant public and adjacent property owner notices for each application as required. The Hearing Examiner may consider two or more applications relating to a single project concurrently, and the findings of fact, conclusions and decision on each application may be covered in one written decision.
2.80.100 Public Hearings
A. Before rendering a decision on any application, the Hearing Examiner shall hold at least one public hearing thereon. Notice of the time and place of the public hearing shall be given as provided in the applicable county code governing the application.
B. The Hearing Examiner shall have the authority to prescribe rules and regulations for the conduct of hearings before the Hearing Examiner, and also to administer oaths and to preserve order.
2.80.110 Reports of Departments
When an application has been scheduled for a public hearing, the department responsible for the application shall coordinate and assemble the comments and recommendations of other county departments and governmental agencies having an interest in the application. The said department shall prepare a report summarizing the factors involved and the findings and recommendations of the department. At least ten days prior to the scheduled hearing, the report shall be filed with the examiner and copies thereof shall be mailed to the applicant and shall be made available to any interested party at the cost of reproduction.
2.80.120 Continuances
A. Once legal notice has been given, no matter shall be postponed over the objection of any interested party, except for good cause shown. Continuances may be granted at the discretion of the Hearing Examiner; provided, the interested parties in attendance shall be given an opportunity to testify prior to the continuance. The applicant shall pay the fee as determined by the Board of County Commissioners for any hearing postponed or continued by request of the applicants after legal notice has been published; provided, that this requirement shall not apply where the request is based on new information presented at the hearing.
B. The Hearings Examiner may continue or reopen proceedings for any good cause he or she deems reasonable and appropriate provided an order for such action is entered prior to the filing of the recommendation or decision.
C. If the Hearing Examiner determines at a hearing that there is a good cause to continue such proceeding and publicly specifies the date, time, and place, no further notice is required. When determination for a further hearing is made following the closing of a hearing on a given matter, all parties of record shall be provided not less than ten (10) days notice of the date, time, place, and nature of the subsequent hearing. Such notice shall also be published in the county official newspaper in the same manner as required for an initial hearing. Whenever any hearing is continued, a notice of continuance shall be conspicuously posted immediately after the time of the continuance on or near the door of the place where the hearing was being held. When a hearing is continued, the resulting continued hearing is a regular hearing for all purposes unless specifically limited by the order granting continuance.
2.80.130 Hearing Examiner’s Decision and Recommendation
A. When the Hearing Examiner renders a decision or recommendation, he or she shall make and enter written findings of fact from the record and conclusions therefrom, which support such decision. The findings and conclusions shall set forth and demonstrate the manner in which the decision carries out and helps to implement the goals and policies of the comprehensive plan and the standards set forth in the various land use regulatory codes, and any other relevant codes and policies.
B. At the conclusion of oral testimony at a public hearing, the Hearing Examiner may establish the date and time at which the public record will close. The public record may be extended and kept open beyond the public hearing for the purpose of allowing written testimony to be submitted. The extension shall not exceed ten working days after the conclusion of oral testimony. All decisions of the Hearing Examiner shall be rendered within ten working days after the date the public record closes.
C. Upon issuance of the Hearing Examiner’s decision, the staff shall transmit a copy of the decision by certified mail to the applicant and send a notice of the decision by first class mail to all parties of record and any other interested parties requesting the same.
2.80.140 Appeal of Hearing Examiner Decision
A. The decision of the Hearing Examiner shall be final and conclusive unless an appeal is filed conforming to the requirements of RCW 36.70C, or to the Department of Ecology, pursuant to RCW 90.58, for Shoreline Decision issued under Title 20, or to the Gorge Commission for National Scenic Area Decisions issued under Title 22.
B. The timely filing of an appeal shall stay the effective date of the Hearing Examiner’s decision until such time as a court of competent jurisdiction (RCW 36.70C), Washington State Department of Ecology (RCW 90.58) or the Columbia River Gorge Commission, adjudicates the appeal.
C. Only those parties listed as parties of record for the Hearing Examiner’s decision shall be eligible to file an appeal.
2.80.150 Annual Report to the Board of
A. The Hearing Examiner shall annually report in writing to the Board of County Commissioners for the purpose of reviewing the administration of County planning, building and other regulatory code sections, ordinances and policies. The written report shall include a summary of Hearing Examiner decisions during the preceding annual period, including the nature of the decision and their particulars.
B. The Hearing Examiner shall meet with the Board of County Commissioners and County Department Heads at the request of the Board of County Commissioners, involving matters of the office.
2.80.160 Scheduling
A. The Hearings Examiner shall, to the extent practicable and consistent with requirements of law, conduct public hearings promptly and efficiently. The Hearings Examiner, Planning Department, other involved departments and all applicants shall make every effort to avoid delay at each stage of a matter to be processed by the Hearings Examiner.
B. Public Hearings will normally be scheduled the first and third Thursday of each month, or as otherwise determined by the Hearing Examiner and the Planning Department, subject to the Hearing Examiner’s schedule and the availability of hearing rooms.
C. The County departments shall be responsible for scheduling hearings within their jurisdiction. In the event hearings from multiple jurisdictions are to be heard on the same day, the Departments shall coordinate scheduling on those days to avoid conflicts.
D. The Planning Department shall prepare an agenda for each Hearing Examiner Public Hearing, listing its date and place, the estimated time that each item is scheduled to be heard, an indication of the nature of each application to be considered, and a concise description of the property location affected by each application. The agenda shall be posted in the Planning Department’s offices and on the
E. Prior to a public hearing, the Hearing Examiner on his or her own motion, or at the request of a party of record, may resolve scheduling issues. This may include, but is not limited to, establishing a briefing schedule, requiring identification of witnesses, scheduling of witnesses, and resolution of any other issues, for the purpose of conduction an efficient hearing.
BE IT FINALLY ORDAINED that this ordinance shall become effective upon adoption by the Board of County Commissioners of
ACKNOWLEDGED ON CONSENT AGENDA IN REGULAR SESSION this 21st day of November 2006 and set for public hearing on the 19th day of December 2006 at
BOARD OF
______________________________________ Chairman
ATTEST: ______________________________________
Commissioner
___________________________ ______________________________________
Clerk of the Board Commissioner
ORDINANCE NO. 2006-14 PASSED INTO LAW THIS _____DAY OF NOVEMBER 2006.
BOARD OF
______________________________________ Chairman
ATTEST: ______________________________________
Commissioner
___________________________ ______________________________________
Clerk of the Board Commissioner
APPROVED AS TO FORM ONLY:
_________________________________
NAY _____
ABSTAIN _____
ABSENT _____