HomeMy WebLinkAbout081219_ra03 JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
Philip Morley, County Administrator
FROM: Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney
Austin Watkins, Civil Deputy Prosecuting Attorney
DATE: August 12, 2019
SUBJECT: Informational Session on the Draft Hearing Examiner Code, Hearing Examiner
Rules of Procedure, and Amendments to Chapter 18.40 JCC
STATEMENT OF ISSUE:
The Prosecuting Attorney's Office (PAO) will brief the draft hearing examiner code, hearing examiner rules
of procedure, and amendments to Chapter 18.40 JCC to obtain feedback from the BoCC during this
informational session.
ANALYSIS:
In order to effectively carry out recent legislative updates, such as the Nuisance Ordinance and Commercial
Shooting Facility Ordinance, and to facilitate future regulatory reform, the PAO drafted a new hearing
examiner code, hearing examiner rules of procedure, and amendments to Chapter 18.40 JCC (Permit
Application and Review Procedures) for unincorporated Jefferson County. These drafts have been reviewed
by the Department of Community Development, the Public Health Department, the Public Works
Department, and the Jefferson County Hearing Examiner all of whom provided valuable feedback that is
reflected in the draft code being presented.
The hearing examiner is an appointed quasi-judicial position which adjudicates land use permits,
administrative appeals of land use decisions, administrative appeals of non-land use decisions, and other
matters, such as road vacations. Most applications to the hearing examiner are a public hearing giving
interested parties the ability to present their case and testify regarding the issue.
Currently, the Jefferson County Hearing Examiner is authorized under JCC 18.05.080. While the current
code authorizes the hearing examiner to hear other matters as designated, the existing code and codified
rules of procedure are designed for land use applications. The current code does not adequately reflect the
breadth of matters assigned to the hearing examiner. Further, the current code lacks critical authorizations
and elements, such as authorization for the examiner's decisions, reconsideration, or evidence standards.
Below is an overview of the proposed ordinance.
Page 1 of 3
Overview of the Proposed Draft Hearing Examiner Code, Hearing Examiner Rules of Procedure, and
Amendments to Chapter 18.40 JCC
The draft ordinance accomplishes the following:
• Proposed Draft Hearing Examiner Code:
o Repeals current hearing examiner code and rules of procedure, located in Chapter 18.05 JCC
(Introductory Provisions of the Unified Development Code);
o Replaces current code with a hearing examiner code in Title 2 (Administration and
Personnel) JCC;
o Proposed draft code provides key authorization for the hearing examiner, including express
authorization for the hearing examiner's adjudication of non-land use matters; and,
o Authorizes public rules, which allow the adoption and amendment of rules of procedure.
• Proposed Draft Hearing Examiner Rules of Procedure:
o Proposed draft rules of procedure establish procedures for public hearings, special hearings,
evidentiary standards, official record, roles and responsibility, subpoena rules, etc.;
o Clarifies the role and responsibilities of the office of the hearing examiner; and,
o Provides consistent hearing rules for all hearing participants.
• Chapter 18.40 JCC (Permit Application and Review Procedures) Amendments:
o Amendments are procedural in nature, are not development regulations under the Growth
Management Act, and do not require Planning Commission review;
o Harmonizes Chapter 18.40 JCC to the proposed draft hearing examiner code and rules of
procedure by repealing duplications, using consistent terms, and ensuring consistent dates;
o Adds a new code section relating to land use application vesting;
o Adds a new code section relating to the expiration of land use applications;
o Adds a new code section allowing the hearing examiner to revoke, suspend, or modify Type
I, II, and III land use permits after a public hearing and under limited circumstances; and,
o Updates Table 8-1 (Permits—Decisions) JCC 18.40.040 to be consistent with other code
provisions.
Next Steps:
1. Revise draft ordinance based upon BoCC feedback received, if appropriate.
2. Consider a hearing notice, advertising a public hearing date and location for the draft ordinance.
3. Conduct a public hearing on the draft ordinance obtaining citizen input and revising the draft
ordinance based upon citizen input, if appropriate.
4. Consider taking action to adopt the draft ordinance.
Page 2 of 3
FISCAL IMPACT:
No fiscal impacts are anticipated from the proposed ordinance as the hearing examiner is currently budgeted
through existing general funds and application revenue. There may be an increase in administrative costs
associated with the enhanced role of the office of the hearing examiner; however, this cost should be offset
by application revenue supporting the hearing examiner.
RECOMMENDATION:
Participate in a 1-hour discussion providing PAO direction on the draft hearing examiner code, rules of
procedure, and amendments to Chapter 18.40 JCC.
REV , ED BY:
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Page 3 of 3
James M. Kennedy Prosecuting Attorney 1on August 12, 2019BoCCPresented to 8/8/2019 Austin Watkins, Civil DPAandPhilip C. Hunsucker, Chief Civil DPAPresentation by 18.40 AmendmentsRules
of Procedure, and Hearing Examiner Code, Informational Brief:
Overview of Hearing Examiner System (review)2on August 12, 2019BoCCPresented to 8/8/2019 the case with written findings.Hears all sides of the case, usually with public comment, and
adjudicates 6.procedure, and other applicable law.Conducts hearings consistent with adopted code requirements, rules of 5.appeals, code enforcement, road vacations, and land use cases.Wide
range of subject matter including authority to hear administrative 4.. BoCCland use matters, as delegated by the -Authority to hear land use and non3.judicial hearings.-Conducts quasi2.Appointed
position.1.
Need for Amendments to the Current Code and Rules (review)3on August 12, 2019BoCCPresented to 8/8/2019 hearing examiner regulations and improve land use application processing.Procedural
amendments needed to harmonize code to new : Chapter 18.40 JCC Amendments4.departmental hearing examiner system. -crossUniform code, rules, and processes are needed for an efficient
Uniform Code and Rules Needed:3.responsibilities of parties. Lacks key rules, such as evidentiary standards, timelines, computation of days, and roles and c.Amendments to the rules
require a JCC amendment.b.Codified in Title 18 JCC (Unified Development Code).a.Current Hearing Examiner Rules of Procedure:2.of hearing examiner’s decision. Lacks key code provisions,
such as requests for clarifications, revocation of approval, and finality c.departmental nature of the hearing examiner.-Does not reflect the crossb.land use hearings, such as road
vacations, and nuisance appeals/hearings.-nonResides in Title 18 JCC (Unified Development Code), even though hearing examiner is assigned a.Current Hearing Examiner Code:1.
Goals for Draft Hearing Examiner Code and Rules of Procedure (review) 4on August 12, 2019BoCCPresented to 8/8/2019 land use issues. -use and nonProvide the hearing examiner with authority
and tools to fairly adjudicate both land 5.process of a hearing examiner system.Ensure compliance with court cases relating to the authority and procedural due 4.Increase procedural
due process in the hearing examiner system.3.Reduce the need for parties or groups to obtain attorneys during hearings.2.Clarification of the role of the office of the hearing examiner.c.Codified
rules of procedures as public rules.b.Readable and understandable code and rules of procedure.a.Increase the transparency of hearing examiner system. 1.
Current Draft Status 5on August 12, 2019BoCCPresented to 8/8/2019 development regulations. The proposal does not require review of the Planning Commission.The proposed updates while
substantive, are not Proposal is Not a Development Regulation:e.session. Current version before the board of county commissioners for the information Version 4:d.hearing examiner. Based
upon valuable feedback PAO revised the draft.as Version 3 to community development, environmental public health, public works, and the Version 2 was revised with hearing examiner comments
and was again submitted Version 3:c.received.informational session on July 8, 2019 before comments from the hearing examiner were in an BoCCupon valuable feedback PAO revised the draft.
Version 2 was presented to the development, environmental public health, public works, and the hearing examiner. Based In July, PAO again submitted the draft code and rules of procedure
to community Version 2:b.upon valuable feedback PAO revised the draft.development, environmental public health, public works, and the hearing examiner. Based In June, PAO submitted
the draft code and rules of procedure to community Version 1:a.1.
Statutory Authority for Hearing Examiner System 6on August 12, 2019BoCCPresented to 8/8/2019 Board of Adjustment hearings.–136 -14-WAC 458•Abatement for junk vehicles; and,–RCW 46.55.240
•Preliminary plats;–RCW 58.17.330 •Road vacations;–RCW 36.87.060(2) •SEPA appeals;–RCW 43.21C.075 •Civil infractions;–RCW 7.80.010 •Certain zoning matters;–RCW 36.70.970 •State Law
Authorizes a Hearing Examiner System for the Following Matters:
Three Important Concepts for Hearing Examiner Systems 7on August 12, 2019BoCCPresented to 8/8/2019 procedure to quickly respond to needed rule amendments.Important for the examiner to
have delegated authority to amend the proposed rules of c.subpoenas, reconsideration, and clarification. Important for the examiner to have delegated authority for certain actions,
such as discovery, b.issued.Important for the examiner to have delegated authority for all decisions, approvals, or permits a.(1989).. 630, 636, 689 P.2d 1084 Wash.App, 38 Chaussee
v. Snohomish County CouncilThe Hearing Examiner’s authority is limited to that granted by the creating body. 1.
Three Important Concepts for Hearing Examiner Systems (cont.)8on August 12, 2019BoCCPresented to 8/8/2019 burdens that the additional or substitute procedure requirement would entail.
The government’s interest, including the function involved and the fiscal/administrative iii.the probable value, if any of additional or substitute procedural safeguards; and, The risk
of an erroneous deprivation of such interest through the procedures used and ii.Private interest affected by the official action;i.:Mathewsfactors from In determining whether procedural
due process is satisfied, courts look to the following three b.2d 18 (1976).. L.Ed. 893, S.Ct, 424 U.S. 319, 333, 96 Mathews v. Eldridgetime and in a meaningful manner. The fundamental
requirement of due process is the opportunity to be heard at a meaningful a., 167 Wn.2d 300, 312, 217 P.3d 1179, 1185 (2009)TacomaPost v. City of Procedural due process is paramount
in a hearing examiner system. 2.
Three Important Concepts for Hearing Examiner Systems (cont.)9on August 12, 2019BoCCPresented to 8/8/2019 conforming use. -Hearing Examiner refused to allow the landowner to present
evidence of a nonSeattle’s Hearing Examiner deprived the landowner procedural due process when the . App. 8, 22, 335 P.3d 1027, 1035 (2014), Wn, 184 Johnson v. City of SeattleIn •include
an appeal process for subsequent daily fines for code enforcement hearings. system lacked procedural due process and was not a complete system, as it did not , the Supreme Court of
Washington held that Tacoma’s hearing examiner PostIn •
Three Important Concepts for Hearing Examiner Systems (cont.)10on August 12, 2019BoCCPresented to 8/8/2019 track (e.g., infractions in Jefferson County District Court)., then the default
system for civil infractions is a judicial Postprocess safeguards, as outlined in If the hearing examiner code and rules of procedure do not meet minimum procedural due •adequate procedural
due process.Hearing examiner code and rules of procedure should be similar to a district court to provide •217 P.3d 1179, 1185 (2009)., 167 Wn.2d 300, 312, Post v. City of Tacomacomplete
hearing examiner system. requires that the local jurisdiction have a complete alternative system, such as a RCW 7.80.010’s authorization for an alternative hearing system for civil
infractions 3.
Overview of Existing Examiner Code Compared to Proposed Code Finality and appeals of examiner clarified.under limited circumstances.Authority to modify, suspend, or revoke decisions
rejection or modification.BoCCAuthorization for rules of procedure, subject to clarification.Decision authority, including reconsideration and use matters.land -Express authority to
hear land use and nonPersonnel). Code moved to Title 2 JCC (Administration and Proposed Code decisions. including authority to approve, deny, or reconsider 18.40 JCC (Permit Application
and Review Procedures), Substantial delegated authority resided in Chapter approval.BoCCAuthorized rules of procedure, subject to Limited Standards of review / evidence standards.other
matters as delegated. Code is in Title 18 JCC.Express authority limited to land use matters and Existing Code 11on August 12, 2019BoCCPresented to 8/8/2019
Overview of Existing Examiner Rules of Procedure Compared to Proposed Centralized administrative office of the examiner. defaults, procedures to withdraw, etc. hearing motions,
-notice and service requirements, preIncludes key provisions, such as evidence standards, GMA requirements.hearing system for civil infractions under Chapter 7.80 and all Includes required
process to comply with an alternative county examples. hearings. Based primarily upon King, Snohomish, and Kitsap Understandable rules for the conduct and process of process found in
Chapter 18.05, 18.40, 18.25 and 12.10 JCC.Central location for all rules of procedure, consolidating reject proposed rules through a motion. Public rules.may modify or BoCCEasier process
to amend rules. Proposed Rules of Procedure Rules lack depth and key process details.applications.for hearings, default, and procedures to withdraw subpoena rules, contents of the record,
general process Lacks key provisions, such as discovery or Limited rules on evidence standardsexaminer code, such as authority of the examiner.Contained provisions, which belonged in
the public hearing to modify.action and BoCCCodified in Title 18 JCC, requiring Existing Rules of Procedure 12on August 12, 2019BoCCPresented to 8/8/2019 Rules of Procedure
Overview of Proposed Unified Development Code Amendments 13on August 12, 2019BoCCPresented to 8/8/2019 Proposed suspension, revocation, or modification of Type I, II, and III land use
permits after a d.Proposed expiration for land use applications; and,c.Proposed vesting for land use applications;b.18.40.080;JCC –Clarification of permit timeline, changing mandatory
“shall” language to “should” a.Procedural improvements to Chapter 18.40 JCC6.Harmonizes terms between proposed rules of procedure and Chapter 18.40 JCC.5.Repeals process and authority
for hearing examiner located in Chapter 18.40 JCC.4.Harmonizes definitions between the new code, rules of procedure, and UDC.3.JCC 18.05.085 –Repeals existing hearing examiner rules
of procedure 2.JCC 18.05.080–Repeals existing hearing examiner code 1.
Proposed Sections for Hearing Examiner Code 14on August 12, 2019BoCCPresented to 8/8/2019 Severability. 2.30.1602.30.150Suspension, Revocation, or Modification of a Decision, Approval,
or Permit 2.30.140Finality and Appeal of Examiner's Decision.2.30.130Examiner's Decision.2.30.120Departmental Reports to the Examiner.2.30.110Appeals of Administrative Decisions to
the Examiner.2.30.100Procedures for Hearings.2.30.090Powers and Duties.–Examiner 2.30.080Public Rules.2.30.070Conflict of Interest and Freedom from Improper Influence.–Examiner 2.30.060Selection
of Examiner.2.30.050Qualifications. –Examiner 2.30.040Definitions.2.30.030Office Created.2.30.020Purpose.2.30.010Sections:HEARING EXAMINERChapter 2.30
Proposed JCC 2.30.020 Office of the Hearing Examiner 15on August 12, 2019BoCCPresented to 8/8/2019 such as scheduling, notice, mailings, and coordination of motions.Proposed centralized
office to coordinate administrative functions of the examiner, •authorizes the office of the Hearing Examiner-Proposed JCC 2.30.020 re•Administrative functions are handled by community
development and individual staff members.•Office of the Hearing Examiner is currently authorized under JCC 18.05.080(1).•
Proposed JCC 2.30.040 Examiner 16on August 12, 2019BoCCPresented to 8/8/2019 Selection of ExaminerQualifications and JCC 2.30.050 –
Public Rules Proposed CodeExisting Code 17on August 12, 2019BoCCPresented to 8/8/2019 Rules of Procedure–
Examiner 18on August 12, 2019BoCCPresented to 8/8/2019 Existing and Proposed–Powers and Duties –
Proposed JCC 2.30.090 19on August 12, 2019BoCCPresented to 8/8/2019 Procedures for Public Hearings–
Proposed JCC 2.30.100 Appeals of Admin. Decisions to Examiner 20on August 12, 2019BoCCPresented to 8/8/2019
Proposed JCC 2.30.120 Examiner’s Decision 21on August 12, 2019BoCCPresented to 8/8/2019
Proposed JCC 2.30.130 Finality and Appeal of Examiner’s Decision 22on August 12, 2019BoCCPresented to 8/8/2019
Proposed JCC 2.30.140 Suspension, Revocation, or Modification of a 23on August 12, 2019BoCCPresented to 8/8/2019 Decision, Approval, or Permit
Proposed Hearing Examiner Rules of Procedure 24on August 12, 2019BoCCPresented to 8/8/2019
Proposed Rule 1 General Requirements 25on August 12, 2019BoCCPresented to 8/8/2019
Proposed Rule 2 Scheduling, Noticing, and Agendas of Hearings 26on August 12, 2019BoCCPresented to 8/8/2019
Proposed Rule 3 Pre 27on August 12, 2019BoCCPresented to 8/8/2019 Hearing Procedures-
Proposed Rule 4 Record 28on August 12, 2019BoCCPresented to 8/8/2019
Proposed Rule 5 Hearing Procedures 29on August 12, 2019BoCCPresented to 8/8/2019
Proposed Rule 6 Post Hearing Procedures 30on August 12, 2019BoCCPresented to 8/8/2019
Proposed Rule 7 Withdrawal of Application, Petition, or Appeal 31on August 12, 2019BoCCPresented to 8/8/2019
Proposed Amendments to Title 18 \[SEPA\] Appeals–18.40. 810 •InterpretationsAppeals of Administrator's –18.40.390 •Administrative Appeals–18.40.330 •Final Decision–18.40.320 •DecisionHearing
Examiner Review and –18.40.280 •Contents–Notice of Application –18.40.190 •Exempt ProjectsSEPA –Notice of Application –18.40.180 •IssuanceTime of –Notice of Application –18.40.170 •Generally-Public
Notice –18.40.150 •Sections Amended•32on August 12, 2019BoCCPresented to 8/8/2019 ProcessingExemptions From Project Permit –18.40.080 •frameworkProject permit application –18.40.040
•Definitions–18.10.010, 18.10.030, 18.10.080, 18.10.160 •Sections Amended•Reconsideration–18.40.310 •Procedures for Public Hearings–18.40.300 •ProcedureHearing Examiner Rules of –18.05.085
•Hearing Examiner–18.05.080 •Sections Repealed•
Proposed Amendments to Title 18 cont.33on August 12, 2019BoCCPresented to 8/8/2019 Suspension, Revocation, or Modification of Permits–18.40.325 •Vesting of Applications–18.40.320 •Expiration
of Applications–18.40.310 •Sections Added•
Proposed JCC 18.40.310 Expiration of Applications 34on August 12, 2019BoCCPresented to 8/8/2019
Proposed JCC 18.40.320 35on August 12, 2019BoCCPresented to 8/8/2019 Vesting of Applications–
Proposed 18.40.325 Suspension, Revocation, or Modification of Permits 36on August 12, 2019BoCCPresented to 8/8/2019
Proposed Next Steps 37on August 12, 2019BoCCPresented to 8/8/2019 the draft code and rules of procedure.Hold a public hearing to obtain citizen input on Public Hearing:3.BoCC considers
a hearing notice; and,Hearing Notice:2.session;feedback during this information BoCCBoCC Feedback:1.
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Appendix A
Chapter 2.30
HEARING EXAMINER
Sections:
2.30.010 Purpose.
2.30.020 Office Created.
2.30.030 Definitions.
2.30.040 Examiner – Qualifications.
2.30.050 Selection of Examiner.
2.30.060 Examiner – Conflict of Interest and Freedom from Improper Influence.
2.30.070 Public Rules.
2.30.080 Examiner – Powers and Duties.
2.30.090 Procedures for Hearings.
2.30.100 Appeals of Administrative Decisions to the Examiner.
2.30.110 Departmental Reports to the Examiner.
2.30.120 Examiner's Decision.
2.30.130 Finality and Appeal of Examiner's Decision.
2.30.140 Suspension, Revocation, or Modification of a Decision, Approval, or Permit
2.30.150 Conflicts with Other More Specific Provisions.
2.30.160 Severability.
2.30.010 Purpose.
(1) The board of county commissioners for Jefferson County recognizes the need to provide
efficient and effective hearings procedures which integrate land use and non-land use
hearings.
(2) The purpose of this Chapter is:
(a) To establish a single hearing examiner system, establish the authority of the
examiner, authorize public rules, and provide orderly procedures for those matter
within the examiner’s authority; and,
(b) To create a single hearing and appeal system for license, land use, and
administrative decisions that do not require an appeal to the Board of Health.
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2.30.020 Office Created
The office of Jefferson County Hearing Examiner is hereby created. The examiner’s office
shall be under the administrative supervision of the examiner. The office shall be separate and
distinct from any other county officer or department.
2.30.030 Definitions
The following definitions shall apply in the interpretation of this chapter:
(1) “Administrative decision” means a final decision by a county official, director, or the
Unified Development Code Administrator.
(2) “Aggrieved person” means a person subject to a decision by the examiner under this chapter
and other persons if:
(a) The decision has prejudiced or is likely to prejudice that person;
(b) The person’s asserted interests are among those that the county was required to
consider when the examiner made the decision;
(c) The person is a party of record, as defined in JCC 2.30.030(16); and,
(d) A judgment or final decision in favor of that person would substantially eliminate or
redress the prejudice to that person or entity caused or likely to be caused by the final
decision.
(3) “Board of Health” mean the Jefferson County Board of Health.
(4) “County” means Jefferson County, Washington.
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(5) “Department” means the county department assigned to execute the applicable JCC
chapter.
(6) “Departmental Report” means the document prepared by the department staff pursuant to
this chapter or the Hearing Examiner Rules of Procedure.
(7) “Director” means: (a) county department head; or, (b) authorized representatives of the
county department head.
(8) “Examiner” means the Jefferson County Hearing Examiner or any deputy examiner.
(9) “Hearing” means quasi-judicial or administrative cases involving the legal rights of specific,
identifiable parties, within the examiner’s jurisdiction, and in which the examiner
adjudicates the case.
(10) “JCC” means the Jefferson County Code as it exists now or may be amended.
(11) “Land use hearings” includes the hearings enumerated in JCC 2.30.080(2)(a).
(12) “May” means optional and permissive, and does not impose a requirement.
(13) “Non-land use hearings” includes the hearings enumerated in JCC 2.30.080(2)(b).
(14) “Official record” means the written and oral information, exhibits, reports, testimony, and
other evidence submitted in a timely manner and accepted by the examiner.
(15) “Open record hearing” means a hearing, conducted by a single hearing body or officer that
creates the record through testimony and submission of evidence and information, under
procedures prescribed by ordinance or resolution. An open record hearing may be held prior
to the decision on a project permit to be known as an “open record predecision hearing.” An
open record hearing may be held on an appeal, to be known as an “open record appeal
hearing,” if no open record predecision hearing has been held on the project permit.
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(16) “Parties of record” means persons or entities who wish to receive a copy of the examiner’s
decision and notice of upcoming hearings. “Parties of record” includes the applicant,
appellant, petitioner, respondent, their agents and representatives, the county, and persons
or entities who: indicate on a sign-up sheet, at a public hearing, that they wish to become a
party of record; or, for public hearings specifically advised the examiner’s office by
individual written letter or electronic mail of their desire to become a party of record.
Persons who only signed petitions or mechanically produced form letters may be excluded
as parties of record. For special hearings under JCC 2.30.090(2), parties of records are
limited to the principal parties, as defined in JCC 2.30.030(16).
(17) “Person” means person as that term is defined in RCW 1.16.080.
(18) “Principal party” means and is limited to the applicant, appellant, department, respondent,
petitioner, their agent(s) or attorney(s), and the county in matters pending before the
examiner.
(19) “Public rule” means any rule adopted by the county pursuant to JCC 2.30.070.
(20) “RCW” means the Revised Code of Washington as it exists now or may be amended.
(21) “Shall” means mandatory and imposes a requirement.
(22) “Unified Development Code Administrator” means the Jefferson County department of
community development director or a designee.
2.30.040 Examiner – Qualifications.
The examiner shall have such training or experience as will qualify the examiner to conduct
administrative or quasi-judicial hearings utilizing land use and other regulatory codes. The
examiner must have expertise and experience in land use planning and should have knowledge or
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experience in at least one of the following areas: environmental sciences, law, public
administration, architecture, economics or engineering.
2.30.050 Selection of Examiner.
The examiner shall be selected by the board of county commissioners. The term of the
appointment for the examiner shall be pursuant to a contract executed by the board of county
commissioners.
2.30.060 Examiner – Conflict of Interest and Freedom from Improper Influence.
(1) The appearance of fairness doctrine, as set forth in Chapter 42.36 RCW, shall apply to the
examiner and all deputy examiners.
(2) No county commissioner, county official, county employee, or any other person shall
interfere or attempt to interfere with the examiner or deputy examiners in the
performance of their designated duties.
2.30.070 Public Rules
(1) Development of Public Rules. The initial public rules, in the form of the Hearing
Examiner Rules of Procedure, shall be adopted by the board of county commissioners
with Chapter 2.30 JCC (Hearing Examiner). The examiner is delegated authority to
amend the Hearing Examiner Rules of Procedure.
(2) Amendment of Public Rules. Within 5 days after adoption or amendment of any public
rule, the examiner shall transmit a copy of the public rule or amendment to the clerk of
the board of county commissioners for county commission review and possible action.
The public rule or amendment shall remain in effect unless rejected or modified by a
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motion of the board of county commissioners within 30 days of transmission to the clerk.
The examiner shall incorporate any such rejection or modification within 10 days after
adoption of the motion of the board of county commissioners.
2.30.080 Examiner – Powers and Duties.
(1) The examiner shall have the power to appoint deputy examiners, subject to confirmation
by the board of county commissioners. The deputy examiners shall assist the examiner in
the performance of the duties conferred upon the examiner and shall have all the powers
and duties of the examiner.
(2) The examiner shall receive and examine available relevant information, including
environmental documents, conduct hearings, cause preparation of the official record
thereof, prepare and enter findings of fact and conclusions of law, and issue final
decisions for:
(a) Land Use Hearings.
(i). All Type III land use decisions pursuant to Chapter 18.40 JCC;
(ii). Appeals of Type II land use decisions pursuant to Chapter 18.40 JCC;
(iii). Appeals of administrative interpretations made pursuant to Article VI of
Chapter 18.40 JCC;
(iv). Appeal of a SEPA threshold determination made pursuant to Article C of
Chapter 18.40 JCC (other than determinations of significance);
(v). Hearings to suspend, revoke, or modify an issued examiner’s decision,
approval, or permit for land use matters under JCC 18.40.325; and,
(vi). Any other land use hearing not prohibited by law assigned by the board of
county commissioners through an ordinance.
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(b) Non-Land Use Hearings.
(i). Petition for county road vacations under Chapter 12.10 JCC (Road
Vacations);
(ii). Operating permits for a new commercial shooting facility under Article III
of Chapter 8.50 JCC (Commercial Shooting Facilities);
(iii). Appeal of an administrative decision regarding operating permits for
existing commercial shooting facilities under Article III of Chapter 8.50
JCC (Commercial Shooting Facilities);
(iv). Administrative appeals under Chapter 8.90 JCC (Public Nuisances);
(v). Hearings for vehicle nuisances under Chapter 8.90 JCC (Public
Nuisances);
(vi). Appeal of an administrative decision regarding sexually oriented business
licenses under Chapter 5.10 JCC (Licensing and Operation of Sexually
Oriented Business Facilities);
(vii). Hearings to suspend, revoke, or modify an issued examiner’s decision,
approval, or permit for non-land use matters under JCC 2.30.140; and,
(viii). Any other non-land use proceeding not prohibited by law assigned by the
board of county commissioners through an ordinance.
(3) Subpoena Authority. The examiner shall have the authority to issue subpoenas
compelling the appearance of witnesses, the production of documents or other physical
evidence, and the inspection of physical evidence.
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2.30.090 Procedures for Hearings.
(1) Open Record Hearings. All hearings, except a Special Hearing under JCC 2.30.090(2),
shall be conducted as an open record hearing permitting written or oral public comment,
and public testimony periods, in accordance with this section and the Hearing Examiner
Rules of Procedure.
(2) Special Hearings. Special hearings shall be conducted on the official record and shall be
conducted in accordance with this section and the Hearing Examiner Rules of Procedure.
Special hearings do not include written or oral public comment, or public testimony
periods. Only persons called as witnesses by a principal party or the examiner will be
allowed to testify.
(a) Applicability. The following hearings are special hearings:
(i). Appeal of an administrative decision regarding operating permits for
existing commercial shooting facilities under Article III of Chapter 8.50
JCC (Commercial Shooting Facilities);
(ii). Administrative appeals under Chapter 8.90 JCC (Public Nuisances);
(iii). Hearings for vehicle nuisances under Chapter 8.90 JCC (Public
Nuisances);
(iv). Appeal of an administrative decision regarding sexually oriented business
licenses under Chapter 5.10 JCC (Licensing and Operation of Sexually
Oriented Business Facilities); and,
(v). Hearings to suspend, revoke, or modify an issued examiner’s decision,
approval, or permit for non-land use matters under JCC 2.30.140;
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(vi). Hearings to determine compliance with examiner’s conditions or permit
criteria under Chapter 2.30 JCC (Hearing Examiner).
(3) Notice. Notice of land use hearings shall be noticed in accordance with Article III of
Chapter 18.40 JCC or the applicable JCC provision. Notice of non-land use hearings shall
be noticed in accordance with the applicable JCC provision.
(4) Continuances. If for any reason the hearing cannot be completed on the date set, the
examiner may direct that the hearing be continued. If the date, time, and place at which
the continued hearing will be held is announced publicly at the hearing from which the
continuance is made, then no further notice of the continued hearing is required.
2.30.100 Appeals of Administrative Decisions to the Examiner.
(1) Right to Appeal. Any aggrieved person, as defined in JCC 2.30.030(2), may file a notice
of appeal for administrative decisions authorized under JCC 2.30.070(2). Appeals shall
be in accordance with this section and the Hearing Examiner Rules of Procedure.
(2) Consolidation. If more than one person files an appeal of an administrative decision, the
examiner may consolidate such appeals.
(3) Scope of Authority. The examiner may affirm, dismiss, or reverse wholly or in part, or
may modify the administrative decision, order, requirement, or determination. If the
examiner reverses the decision, the entire action shall be remanded to the Unified
Development Code Administrator or Director for an action consistent with the
examiner’s decision.
(4) Dismissal of Appeal. The examiner may dismiss an appeal in accordance with the
Hearing Examiner Rules of Procedure.
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2.30.110 Departmental Reports to the Examiner.
When an application, appeal, or hearing is scheduled to be heard by the examiner, the
department shall prepare a departmental report summarizing the factors involved in the
department’s findings and recommendations.
2.30.120 Examiner’s Decision.
(1) The examiner’s decision shall be in accordance with this section and the Hearing
Examiner Rules of Procedure.
(2) The examiner’s decision shall be consistent with RCW 36.70.970.
(3) The examiner may: (a) approve the requested permit or decision; (b) deny the requested
permit or decision; (c) modify the requested permit or decision; (d) affirm the county’s
action or decision; (e) dismiss the county’s decision or action; or, (f) modify the county’s
decision or action. The examiner may grant part of the requested action, but deny another
part of the requested action. If the examiner denies the requested permit or decision, it
may be with prejudice (reapplication or resubmittal is not permitted for one year) or
without prejudice (reapplication or resubmittal is permitted). The examiner may remand
administrative appeals to the director for action consistent with the examiner’s decision.
(4) The examiner has the authority, in accordance with the Hearing Examiner Rules of
Procedure, to clarify a decision, reconsider a part or all of their decision, and correct
clerical mistakes in a decision.
(5) The examiner has the authority to impose reasonable and roughly proportional conditions
on decisions. The examiner may rescind the decision if conditions are not satisfied in
accordance with the Hearing Examiner Rules of Procedure.
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2.30.130 Finality and Appeal of Examiner’s Decision.
(1) Finality. The examiner’s decision on all matters is final and conclusive after
reconsideration or clarification, unless appealed.
(2) Appeals, Except Shoreline Decisions. All decisions of the examiner shall be appealable to
a court of competent jurisdiction consistent with applicable state law, such as Chapter
36.70C RCW (Land Use Petition Act) or Chapter 7.16 RCW, except appeals of certain
shoreline decisions.
(3) Appeals of Shoreline Decisions. The decision of the examiner on matters under Chapter
18.25 JCC (Shoreline Master Program) may be appealable to the Shorelines Hearings
Board in accordance with Chapter 90.58 RCW or other applicable state law.
2.30.140 Suspension, Revocation, or Modification of a Decision, Approval, or Permit
(1) The examiner may revoke or modify any decision, approval, or permit after notice to the
principal parties, a recommendation from a director, a hearing consistent with the
Hearing Examiner Rules of Procedure, and upon written findings when:
(a) Decision, approval, or permit was obtained by fraud, misrepresentation, or
clear inadvertent error;
(b) Use for which such decision, approval, or permit was granted is not being
exercised within three years of approval, unless the decision, approval, or permit
provides for a greater period of time;
(c) Use for which decision, approval, or permit was granted ceased to exist or
has been suspended for three years or more;
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(d) Decision, approval, or permit is being, or recently has been exercised
contrary to the terms or conditions of such decision, approval, or permit or is in
violation of any local or state law or regulation; or,
(e) Use for which decision, approval, or permit was granted was so exercised
as to be detrimental to the public health or safety, or so as to constitute a public
nuisance.
2.30.150 Conflicts with Other More Specific Provisions.
If any provision of this chapter conflicts a with more a specific provision of the JCC, the
more specific JCC provision applies.
2.30.160 Severability.
If any provision of this chapter or its application to any person or circumstance is held
invalid, the remainder of the chapter or the application of the provision to other persons or
circumstances shall not be affected.
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COUNTY OF JEFFERSON
STATE OF WASHINGTON
An Ordinance amending the Jefferson } ORDINANCE NO. _______________
County Code Relating to the Hearing }
Examiner System and Procedures for }
Processing and Administering Land Use }
Permits, Repealing and Replacing the }
Jefferson County Code Relating to the }
Hearing Examiner, and Adopting the }
Hearing Examiner Rules of Procedure }
For Unincorporated Areas of Jefferson }
County }
WHEREAS, RCW 36.70.970, RCW 36.87.060(2), RCW 46.55.240, RCW 43.21A.075,
RCW 58.17.330, RCW 7.80.010(5), and WAC 458-14-136 authorizes county governments to
adopt a hearing examiner system which conducts quasi-judicial hearings or appeals usually heard
by the board of county commissioners, board of adjustment, or planning commission; and,
WHEREAS, Jefferson County established a hearing examiner system in 1991 to
adjudicate land use applications and appeals, road vacation applications, and other proceedings as
assigned; and,
WHEREAS, Jefferson County recently has adopted legislation delegating additional non-
land use proceedings to the Hearing Examiner, such as the public nuisance ordinance and operating
permits under the commercial shooting facility ordinance; and,
WHEREAS, Jefferson County has a need for the Hearing Examiner to adjudicate land use
and non-land use applications, hearings, and appeals in a single combined quasi-judicial system,
except where appeals to the Jefferson County Board of Health are required; and,
WHEREAS, the Jefferson County hearing examiner ordinances have not been updated to
reflect the Hearing Examiner’s current duties, practices, or rules; and,
WHEREAS, Jefferson County adopted these changes to the Hearing Examiner system to
ensure a consistent quasi-judicial process for land use and non-land use proceedings; and,
WHEREAS, Chapter 36.70A and 36.70B RCW authorize local governments to adopt
procedures for timely and consistently processing land use applications; and,
WHEREAS, the adopted changes to the Jefferson County Code include amendments to
streamline and clarify permit processing, including amendments to the permit processing timeline,
vesting of land use applications, authority of the Unified Development Code Administrator to
revoke or modify approved permits, and expiration of land use applications; and,
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WHEREAS, the adopted changes to the Jefferson County Code are not development
regulations under Title 18 Jefferson County Code (Unified Development Code) as the adopted
changes relate solely to administrative processes and procedural regulations; and,
WHEREAS, the adopted Hearing Examiner Rules of Procedure provides further
procedures and processes for hearings and appeals conducted before the Hearing Examiner; and,
WHEREAS, the board of county commissioners (BoCC) has held a hearing and has
received public comment on the draft ordinance proposed by staff; and,
WHEREAS, in response to the public comment and testimony, additional improvements
to the draft ordinance have been made,
NOW, THEREFORE, be it ordained by the BoCC as follows:
Section 1. Findings. The BoCC hereby adopts the above recitals (the “WHEREAS”
statements) as its findings of fact in support of this Ordinance.
Section 2. Amendments to Title 18 JCC. This Ordinance amends Title 18 JCC by repealing
JCC 18.05.080, 18.05.085, 18.40.300, and 18.40.310. This Ordinance amends JCC 18.10.010,
18.10.030, 18.10.080, 18.10.160, 18.40.040, 18.40.080, 18.40.150, 18.40.170, 18.41.180,
18.40.190, 18.40.280, 18.40.320, 18.40.330, 18.40.390, and 18.40.810. This Ordinance adds
sections in Chapter 18.40 JCC relating to expiration of applications, vesting of applications, and
suspension, modification, and revocation of permits. Amendments are set forth in Appendix C
with strikethroughs as deletions and underlines as additions.
Section 3. Chapter 2.30 JCC Adopted. Chapter 2.30 JCC shall be added as set forth in
Appendix A.
Section 4. Hearing Examiner’s Rule of Procedure Adopted. The Hearing Examiner’s Rule
of Procedures is adopted as set forth in Appendix B.
Section 5. Severability. The provisions of this Ordinance are declared separate and
severable. If any provision of this Ordinance or its application to any person or circumstances is
held invalid, then the remainder of this Ordinance or application of its provisions to other persons
or circumstances shall remain valid and unaffected.
Section 6. SEPA Compliance. This ordinance is categorically exempt from the State
Environmental Policy Act under WAC 197-11-800(19).
Section 7. Effective Date. This ordinance is effective immediately upon adoption.
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ADOPTED this _____ day of _________________________ 2019, at ___: ___
a.m.
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
SEAL:
______________________________
Kate Dean, Chair
______________________________
David Sullivan, Member
ATTEST: ______________________________
Greg Brotherton, Member
APPROVED AS TO FORM:
______________________________ ______________________________
Carolyn Gallaway, Date Philip C. Hunsucker, Date
Deputy Clerk of the Board Chief Civil Deputy Prosecuting Attorney
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APPENDIX B
JEFFERSON COUNTY HEARING EXAMINER RULES OF PROCEDURE
8/8/2019
Table of Contents
RULE 1 GENERAL REQUIREMENTS .................................................................................3
1.1 Definitions ...................................................................................................................3
1.2 Jurisdiction and Authority of Examiner.........................................................................4
1.3 Appearance of Fairness Considerations .........................................................................4
1.4 Ex Parte Communication ..............................................................................................4
1.5 Expeditious Hearings ....................................................................................................5
1.6 Frequency of Hearings ..................................................................................................5
1.7 Disclosure and Availability of Records .........................................................................5
1.9 Site Visits .....................................................................................................................5
1.10 Computation of Time ....................................................................................................6
1.11 Conflicts .......................................................................................................................6
1.12 Service .........................................................................................................................6
1.12 Transmittal of Decisions, Orders, Motions, and Other Documents by Examiner ...........6
RULE 2 SCHEDULING, NOTICING, AND AGENDAS OF HEARINGS .............................6
2.1 General Rules ...............................................................................................................6
2.2 Continuation or Postponement of Hearing ....................................................................7
2.3 Notice Requirements ....................................................................................................7
2.4 Consolidation ...............................................................................................................7
2.5 Hearing Agendas ..........................................................................................................7
RULE 3 PRE-HEARING PROCEDURES ..............................................................................8
3.1 Notice of Appeal...........................................................................................................8
3.2 Pre-Hearing Conference................................................................................................8
3.3 Pre-Hearing Motions ....................................................................................................9
3.4 Subpoenas .................................................................................................................. 10
3.5 Discovery Prohibited .................................................................................................. 11
RULE 4 RECORD ................................................................................................................ 11
4.1 Content of the Record ................................................................................................. 11
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4.2 Departmental Reports ................................................................................................. 12
RULE 5 HEARING PROCEDURES ..................................................................................... 13
5.1 Rights of Parties of Record ......................................................................................... 13
5.2 Responsibilities of County Staff.................................................................................. 14
5.3 Responsibilities of Applicant, Appellant, Petitioner, or Respondent ............................ 14
5.4 Responsibilities of All Involved Parties, Witnesses, and Observers ............................. 14
5.5 Responsibilities of the Examiner ................................................................................. 14
5.6 Parties of Record ........................................................................................................ 15
5.7 Presence of Legal Counsel at Hearings ....................................................................... 15
5.8 Oath or Affirmation .................................................................................................... 16
5.9 Hearing Conducted as an Open Record Public Hearing, Unless a Special Hearing ...... 16
5.10 Special Hearings ......................................................................................................... 16
5.11 General Process of an Open Record Hearing ............................................................... 16
5.12 General Process of Special Hearings ........................................................................... 17
5.13 Default ....................................................................................................................... 17
5.14 Evidence ..................................................................................................................... 18
5.15 Recording of Hearings ................................................................................................ 19
RULE 6 POST-HEARING PROCEDURES .......................................................................... 20
6.1 Examiner’s Decision ................................................................................................... 20
6.2 Re-Opening a Hearing ................................................................................................ 20
6.3 Clerical Mistakes ........................................................................................................ 21
6.4 Setting Aside and Vacating a Default Order ................................................................ 21
6.5 Reconsideration .......................................................................................................... 21
6.6 Clarification................................................................................................................ 22
6.7 Appeals of Decisions .................................................................................................. 23
RULE 7 WITHDRAWAL OF APPLICATION, PETITION, OR APPEAL ........................... 23
7.1 Procedure to Withdraw ............................................................................................... 23
7.2 Effect of Withdrawal .................................................................................................. 23
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RULE 1 GENERAL REQUIREMENTS
1.1 Definitions
The definitions in JCC 2.30.030 and the following additional definitions shall apply in
the interpretation of these Rules.
(a) “Administrative appeal” means any appeal for which jurisdiction is assigned to
the examiner under the JCC.
(b) “Appellant” means the person or organization who has filed an appeal before the
examiner.
(c) “Applicant” means the person or organization, or authorized representative of
either, seeking county approval of one or more permits or licenses over which the
examiner has jurisdiction.
(d) “Clearly erroneous standard of review” means a decision is presumed to be
correct and although there may be evidence to support a decision, the examiner on the
entire record is left with the firm and definite conviction that a mistake has been
committed.
(e) “De novo standard of review” means that the examiner review determines
whether legal issues where correctly decided.
(f) “ERs” means the Washington State Court Rules of Evidence.
(g) “Ex Parte communication” means any communication between any participant in
a hearing and the examiner that occurs outside of the hearing, in the absence of the other
participants.
(h) “Examiner’s office” means the county administrative office assigned to assist the
examiner with procedural and administrative tasks.
(i) “Motion” means a written request made to the examiner for an order or other
ruling, or an oral request made during a hearing.
(j) “New evidence” means any and all evidence that is submitted or received after the
date the examiner closes the official record. The official record is closed at the end of the
public hearing, unless the examiner specifically allows the official record to remain open
for a time certain.
(k) “Order” means a written determination of the examiner, which directs a party of
record to the hearings to act or to refrain from acting.
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(l) “Preponderance of the evidence” means after considering all the evidence on the
record and/or at the hearing that the proposition on which that party has the burden of
proof is more probably true than not true.
(m) “Register” means the Parties of Record Registry, as described in Rule 5.6(b),
which includes a place for entry of the full name, mailing address, phone number, and
email address of Parties of Record.
(n) “Rules” means the Hearing Examiner Rules of Procedures as they exist now or
may be amended.
(o) “SEPA” means the State Environmental Policy Act, Chapter 43.21C RCW.
(p) “Special Hearings” means hearings, as described in JCC 2.30.090(2), which are
on the official record, but not do not require a public hearing.
(q) “Substantial evidence standard of review” means that the examiner’s review is
deferential and requires the examiner to view the evidence and reasonable inferences
therefrom in the light most favorable to the party who exercised the fact-finding.
(r) “WAC” mean the Washington Administrative Code as it exists now or may be
amended.
1.2 Jurisdiction and Authority of Examiner
The examiner’s authority is established by Chapter 2.30 JCC. The examiner’s
jurisdiction is limited to those matters specifically identified in the JCC or assigned to
the examiner by the board of county commissioners.
1.3 Appearance of Fairness Considerations
All hearings before the examiner are subject to the appearance of fairness doctrine and
Chapter 42.36 RCW. The examiner who is scheduled to hear a case shall not serve as a
mediator or settlement facilitator on the case, nor participate in any way in a settlement
conference. The examiner shall be disqualified from a hearing in which the examiner’s
impartially is reasonably questioned. The examiner shall be guided by the provisions and
interpretations of the Code of Judicial Conduct. If the examiner is disqualified, a deputy
examiner shall serve in the examiner’s place.
1.4 Ex Parte Communication
(a) Ex Parte Communication with Examiner. No person, nor their agent, employee,
or representative, who is interested in a particular hearing pending before the examiner
shall communicate ex parte, directly or indirectly, with the examiner concerning the
merits of that or a related hearing. Any communication submitted in this manner shall
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not be considered a part of the record established on the hearing. This rule shall not
prohibit ex parte communication concerning procedural matters.
(b) Ex Parte Communication from Examiner. The examiner shall not communicate
ex parte directly or indirectly with any interested person, nor their agent, employee, or
representative, with regard to the merits of hearing that is pending before the examiner
or a factually related hearing.
(c) Disclosure. If prohibited ex parte communication is made to or by the examiner,
such communication shall be disclosed by the examiner at the outset of the hearing. The
examiner shall exercise proper discretion whether to disqualify himself or herself as the
examiner for that particular hearing.
1.5 Expeditious Hearings
It is the policy of the examiner to conduct matters expeditiously to the extent practicable
and consistent with requirements of law.
1.6 Frequency of Hearings
Hearings will be scheduled through department staff in coordination with the examiner’s
office. There may be more than one case scheduled to commence at the same time and in
such event the examiner shall have discretion in setting the agenda.
1.7 Disclosure and Availability of Records
(a) The decision of the examiner, once issued is a public record and shall be made
available for public review.
(b) The examiner is authorized to certify or authenticate those documents accepted
into the record on any matter before the examiner.
1.8 Exceptions to Rules
These Rules are designed to address most normal circumstances arising when dealing
with matters before the examiner. However, in the event that an unanticipated situation
arises which does not lend itself to the full, literal compliance with a Rule, the examiner
reserves the right to exercise discretion to address such circumstances.
1.9 Site Visits
When necessary to obtain a full understanding of the case, an examiner may view the
site prior to, during, or subsequent to the hearing. The site visit is not part of the record.
Failure to view the site shall not render the examiner’s decision void. Provided,
however, the examiner shall not enter private property without consent or without the
authority of law.
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1.10 Computation of Time
Computation of any period of time prescribed or allowed by these Rules, ordinances of
Jefferson County, and the State of Washington shall begin with the first day following
the act or event initiating such period of time occurred. When the last day of the period
so computed is a Saturday, Sunday, or a county, national, or state holiday, the period
shall run until the end of the following business day.
1.11 Conflicts
These Rules are adopted to supplement the requirements of the JCC. Any conflict
between the rules and any provisions of the JCC, the JCC provisions shall prevail.
1.12 Service
Filings shall be concurrently served on principal parties by United States Postal Service
(USPS) first class mail and filed with the examiner’s office. Service shall be complete
upon the third day following the day upon which they are placed in the mail, unless the
third day falls on a Saturday, Sunday, or legal holiday, in which event service shall be
deemed complete on the first day other than a Saturday, Sunday, or legal holiday,
following the third day. If possible, filings shall also be sent via email to principal
parties. Principal parties may agree to service via email in lieu of USPS mailing.
1.12 Transmittal of Decisions, Orders, Motions, and Other Documents by Examiner
The examiner’s office shall transmit decisions, orders, motions, and other documents
issued by the examiner to parties of record by: (1) via USPS first class mail; (2) via email
if the party of record has consented; or, (3) via a notice sent by USPS first class mail with
a summary of the decision, order, motion, or other document and the physical or
electronic location and availability of the document(s).
RULE 2 SCHEDULING, NOTICING, AND AGENDAS OF HEARINGS
2.1 General Rules
(a) The examiner shall have sole authority over the scheduling of hearings within its
jurisdiction. A department requesting initial hearing dates shall send a request to
the examiner’s office, who shall confirm requests. If a hearing date is rejected, the
examiner’s office shall provide the department with additional dates. More than
one hearing may be scheduled for a particular date, if, in the opinion of the
examiner, it is reasonable to expect that two or more hearings could be heard on
that date.
(b) A department shall notify the examiner’s office if it anticipates a large volume of
cases, or cases requiring multiple hearing dates. The examiner may reschedule
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hearings if the volume of hearings, reconsiderations, or clarifications exceeds the
Examiner capacity.
(c) After a hearing date is confirmed by the examiner’s office, a department may
request to cancel or reschedule the hearing. The examiner’s office shall make best
efforts to accommodate a cancellation or rescheduling.
2.2 Continuation or Postponement of Hearing
Any principal party may request continuation or postponement of a hearing based on a
showing of good cause. The request shall be in the form of a written motion, presented
in a timely manner, which shall be served on other principal parties. The examiner may
consider oral or telephonic continuation requests at the scheduled hearing. More than
one request for continuance per principal party is disfavored. The examiner shall have
discretion to grant or deny the request for continuance.
2.3 Notice Requirements
(a) All notice, time requirement, and methods of notification shall be consistent with
Chapter 2.30 JCC, in addition to other applicable provisions of the JCC and
Washington law.
(b) A declaration attesting to the notice given of the hearing, including dates and
places of publication, persons and addresses noticed, and lists of addresses for
adjacent property owners shall be part of the record for each case.
(c) A list of parties of record may be obtained from the examiner’s office.
2.4 Consolidation
Upon a recommendation from a department, request by a principal party, or on the
examiner’s own initiative, the examiner may consolidate separate permit applications,
appeals, license applications, or other actions into a single or multiple hearings when the
issues are part of a common scheme or plan.
2.5 Hearing Agendas
(a) The examiner’s office shall prepare an agenda for each hearing before the
examiner, listing the date and place of the hearing, the time each case is
scheduled to be heard, an indication of the nature of each case to be considered,
and a concise description of the location of the property affected, if applicable.
(b) The agenda shall be distributed to the examiner, posted at the department, and
posted on the examiner’s office website at least 5 days prior to the hearing date.
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RULE 3 PRE-HEARING PROCEDURES
3.1 Notice of Appeal
(a) Purpose and Timing. A notice of appeal, together with the appropriate appeal
fee, shall be filed with the examiner’s office within 15 days of the date of the
administrative decision. For enforcement actions under Chapter 8.90 JCC
(Public Nuisances) an appeal or hearing fee shall not be required to file an
appeal or hearing. However, the examiner may assign the costs of the hearing or
appeal after the hearing.
(b) Content of Notice of Appeal. A notice of appeal from an administrative decision
shall, at a minimum contain the following information: (1) full name; (2)
mailing address; (3) e-mail address (if available); (4) file number, license
number, or other identifying number; (5) a copy of any decision, license, order,
or other administrative decision; (6) a concise statement of the factual and legal
basis for the appeal citing specifically the alleged errors in the administrative
official’s decision; and, (7) the specific relief sought.
3.2 Pre-Hearing Conference
(a) Purpose. The examiner, in their sole discretion, may hold a pre-hearing
conference. The pre-hearing conference may be held telephonically. Pre-hearing
conferences are designed to promote efficient case management of complex
cases by providing an informal process for early identification of issues,
limitation of issues, and resolution of procedural matters.
(b) Time. When a pre-hearing conference is requested by one or more principal
parties or when the examiner finds that a pre-hearing conference is necessary,
the examiner shall establish the date, time, and place for the conference, in
consultation with the principal parties. The pre-hearing conference must be
noticed in accordance with Rule 2.3. However, the examiner may decide the
pre-hearing motions without oral arguments and without a meeting.
(c) Request. The pre-hearing conference request must be in writing. The request
must be received at least 20 days prior to the hearing. The request must indicate
the reasons for the pre-hearing conference and identify issues or motions the
examiner will be asked to resolve prior to the hearing. If granted, a notice to the
principal parties shall be given.
(d) Scope. At the pre-hearing conference, the examiner shall: (1) identify, clarify,
limit, or simplify the issues; (2) hear and consider motions filed under Rule 3.4
(subpoenas); (3) establish the hearing’s schedule; (4) clarify the identity of
parties and representatives for groups or organizations; (5) identify expert
witnesses; (6) determine the order and limits upon testimony, if any; (7)
establish a schedule for the filing of briefs, if needed; (8) authorize the issuance
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of subpoenas or subpoenas duces tecum; (9) obtain stipulations as to fact(s) or
law(s); and, (10) consider and act upon any other matter which may assure an
efficient and orderly hearing.
(e) Order on Pre-Hearing Conference. Following a pre-hearing conference with or
without oral arguments, the examiner shall issue an order specifying all items
agreed to or decided upon. The order shall be binding.
3.3 Pre-Hearing Motions
(a) Scope and Timing. A principal party may request summary dismissal, summary
judgement, a limitation on the introduction of evidence or testimony, subpoenas,
or other matters through a timely pre-hearing motion. A party of record may
submit a pre-hearing motion as otherwise prescribed in these Rules. Except as
otherwise provided in these Rules, pre-hearing motions must be filed in writing
by any principal party at least 20 days prior to the hearing. Motions and
responsive pleadings shall be concurrently served on principal parties and the
examiner’s office, consistent with Rule 1.12. The opposing party may file a
responsive pleading with the examiner’s office and serve it on principal parties
no later than 10 days prior to the hearing. Late filings or responses may be
considered by the examiner upon a request by the examiner or a showing of
good cause.
(b) Contents. A motion shall provide a concise statement of the factual and legal
basis for the motion and may be accompanied by a supporting legal brief. A
motion and accompanying brief shall not exceed 10 pages, double spaced, in
length without prior permission of the examiner upon a showing of good cause.
(c) Response to a Motion. A response shall provide a concise statement setting
forth the factual and legal basis as to why the motion should not be granted and
may in the form of a legal brief. Responses shall not exceed ten 10 pages,
double spaced, in length without prior permission of the examiner upon a
showing a good cause.
(d) Decision. Motions shall be decided without oral argument unless specifically
requested by the examiner. The examiner shall make every effort to rule on each
motion by issuance of a written order prior to the start of the hearing. However,
in some circumstances, such as the late filing of a motion, the examiner may
rule on a motion at the start of the hearing. Where efficiency would be served,
the examiner may consolidate multiple motions for purposes of issuing a single
order.
(e) Limitations. Motions shall not be used to avoid a public hearing. If a public
hearing is required, a motion for summary judgement or summary dismissal
may not be filed.
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3.4 Subpoenas
(a) Authority. As authorized in JCC 2.30.080(3), the examiner is authorized to issue
subpoenas to compel the attendance of a witness at a hearing, to compel the
production of documents or material, or to compel the inspection of property or
other material, subject to limitations below.
(b) Limitations. Subpoenas are not available to any party in a SEPA appeal, in an
appeal of a Type II administrative decision, and appeals of an administrative
interpretation made under Article VI of Chapter 18.40 JCC. Subpoenas may
only be requested by principal parties or the examiner.
(c) Time for Filing; Contents. A request for a subpoena shall be submitted to the
examiner’s office at least 20 days prior to the hearing as a pre-hearing motion
under Rule 3.3. The request for a subpoena for a person shall include: (1) the
person’s name and address; (2) show the relevance of that person’s testimony;
and, (3) demonstrate the reasonableness of the scope of the subpoena sought.
The request for a subpoena for documents, other physical evidence, or
inspection of property (a subpoena duces tecum) shall include: (1) the name and
address of the person who is to produce the documents, other materials, or
permit inspection of property; (2) list the address or known location of the
property or other material to be inspected; (3) specify the property or other
materials to be produced or inspected; (4) indicate the relevance of the materials
subpoenaed to the hearing; and, (5) demonstrate the reasonableness of the scope
of the materials or inspection sought. The processing of a request for a subpoena
normally requires at least 2 days of the examiner’s office to process.
(d) Service of Process. The principal party requesting a subpoena shall be
responsible for serving it, consistent with Rule 1.12. An affidavit of personal
service by mailing United States Postal Service first class mail, shall be filed
with the examiner and a copy served on all other principal parties or their
attorney of record, if any. Unless otherwise allowed by the examiner, subpoenas
shall be served no later than 10 days prior to the hearing date.
(e) Motion to Quash Subpoena; Protection Order – Time for Filing; Contents. Any
person or organization who is the subject of a subpoena or subpoena duces
tecum may seek an order quashing the subpoena or for a protective order against
the production or disclosure of information sought by filing a motion before the
examiner. The motion shall specify the grounds for which the motion is sought
and specify the desired remedy. The subpoena shall not: (1) have an
unreasonable scope; (2) be an attempt to harass, intimidate, or embarrass the
person subjected to it; (3) be for some other improper purpose; or, (4) seek
information protected from disclosure by some provision of state or federal law.
The motion shall be served on the principal party seeking the subpoena or
subpoena duces tecum and filed with the examiner’s office. Unless otherwise
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allowed by the examiner, any motion to limit or quash a subpoena shall be filed
with the examiner no later than 5 days after the date the subpoena was served.
3.5 Discovery Prohibited
Discovery, including oral or written depositions, interrogatories, and other methods of
discovery is prohibited, except to preserve unavailable critical witness testimony. Parties
of record seeking to preserve unavailable critical witness testimony through discovery
shall be with leave of the examiner, through a pre-hearing motion under Rule 3.3.
The county is subject to disclosure under the Public Records Act, including information
submitted to the department or examiner’s office, unless an exemption under the Public
Records Act, Chapter 42.56 RCW or other applicable law applies.
RULE 4 RECORD
4.1 Content of the Record
The record of a hearing conducted by the examiner shall include, but is not limited to the
following materials:
(a) The application, petition, notice of non-compliance, notice of violation, notice of
violation and order of abatement, stop work order, or other action appealed;
(b) Departmental report;
(c) Sworn declarations submitted by parties of record;
(d) Timely written public comment;
(e) All evidence received including oral and written testimony given at the hearing,
all exhibits, and other materials admitted as evidence;
(f) Pre-hearing motions and orders;
(g) A statement of all materials officially noticed;
(h) A decision containing the finding and conclusions of the examiner;
(i) Recordings made on electronic equipment; and,
(j) An environmental determination made under the SEPA or environmental impact
statement (if applicable).
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4.2 Departmental Reports
The departmental report prepared for cases under review by the examiner shall include,
but is not limited to the following materials:
(a) Hearings.
i. Summarize the nature of the case before the examiner;
ii. The name and address of subject property, applicable zoning, and other
relevant facts;
iii. State and apply the basic applicable laws, regulations, and policies
(including relevant Growth Management Act provisions, Comprehensive
Plan goals and policies, applicable provisions of the JCC, Unified
Development Code interpretations, etc.) to the case;
iv. In-depth analysis of the proposal compared to the applicable laws,
regulations, and policies;
v. A summary of the technical data used or relied upon;
vi. Summarize SEPA review and actions;
vii. Include issues of concern expressed by the lead department, other reviewing
departments, and
viii. A summary and consideration of written comments received during
comment period(s), including reference to the whole comments in the
record;
ix. Findings, staff recommendations, and applicable conditions;
x. Include all relevant documents in an exhibit list, such as studies, site plans,
photographs, etc. demonstrating compliance or non-compliance with the
applicable laws and regulations; and,
xi. Other material and exhibits deemed pertinent by the department.
(b) Special Hearings (as described in JCC 2.30.090(2)).
i. Summarize the nature of the case before the examiner;
ii. List the provisions of the JCC that have been allegedly violated (if
applicable);
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iii. State and apply the basic applicable laws, regulations, and policies
(including relevant JCC, RCW, WACs, common law, etc.) to the case;
iv. In-depth analysis of the proposal compared to the applicable laws,
regulations, and policies;
v. A summary of the technical data used or relied upon;
vi. Summarize SEPA review and actions (if applicable);
vii. Include issues of concern expressed by the lead department, including other
reviewing departments;
viii. A summary and consideration of written comments received during
comment period(s), including reference to the whole comments in the record
(if applicable);
ix. Findings, staff recommendations, and applicable conditions (if applicable);
x. Recommend monetary penalties (if applicable);
xi. Include all relevant documents in an exhibit list, such as studies, site plans,
photographs, etc. demonstrating compliance or non-compliance with the
applicable laws and regulations; and,
xii. Other material and exhibits deemed pertinent by the department.
RULE 5 HEARING PROCEDURES
5.1 Rights of Parties of Record
(a) Open Record Hearings. Every party of record shall have the right to present
evidence and testimony at open record hearings. The right of parties of record to
cross-examine, object, and submit motions shall be at the discretion of the
examiner during public hearings. The examiner may impose reasonable
limitation on the number of witnesses heard and the length of their testimony.
At the examiner’s discretion, irrelevant or unduly repetitious testimony may be
excluded or bypassed. Disruptive persons may be excluded from the public
hearing, consistent with applicable county, state, and federal laws.
(b) Special Hearings. Special hearings shall be conducted on the official record.
Special hearings do not include written or oral public comment, or public
testimony periods. Principal parties shall have the right to present evidence, call
witnesses, examine witnesses, and present testimony. The right of principal
parties to cross-examine, object, and submit motions shall be at the discretion of
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the examiner. The examiner may impose reasonable limitations on the number
of witnesses heard and the length of their testimony. At the examiner’s
discretion, irrelevant or unduly repetitious testimony may be excluded or
bypassed. Disruptive persons may be excluded from the hearing, consistent with
applicable county, state, and federal laws.
5.2 Responsibilities of County Staff
County staff shall provide a departmental staff report consistent with the provisions of
Rule 4.2, provide a location for hearings, provide recording equipment at hearings,
provide notice of hearings, present materials at hearings, and provide testimony and
documentation relevant to hearings.
5.3 Responsibilities of Applicant, Appellant, Petitioner, or Respondent
Whenever possible, the applicant, appellant, petitioner, or respondent shall provide the
department with material prior to the hearing that supports their case. Applicants,
appellant, petitioners, or respondents shall be prepared for questions by the examiner and
should be courteous to all who participate in the hearings at all times.
5.4 Responsibilities of All Involved Parties, Witnesses, and Observers
Parties, witnesses, or observers shall conduct themselves with civility and deal
courteously with all who participate in the hearings. Failure to do so may result in
removal from the hearing at the discretion of the examiner, consistent with applicable
county, state, and federal laws.
5.5 Responsibilities of the Examiner
The examiner shall preside over the hearings. The examiner shall have all of authorities
and duties as granted to the examiner under Washington and Jefferson County law. The
examiner 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 hold pre-hearing conferences, simplification of the issues, or any other proper
purpose;
(f) To require briefs on legal issues;
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(g) To consider and rule upon all procedural and other motions appropriate to the
hearings;
(h) To make and file recommendations or decisions; and,
(i) To avoid unnecessary delays and to maintain order.
In the performance of adjudicative functions, the examiner shall not be subject to the
supervision or direction of any county official, employee, or agent of any department.
5.6 Parties of Record
(a) A party of record has the meaning provided under JCC 2.30.030(16). A party of
record includes the applicant, appellant, petitioner, respondent, their agents and
representatives, and persons or entities who: indicate on a sign-up sheet, at a
public hearing, that they wish to become a party of record; or, for public hearings
specifically advised the examiner’s office by individual written letter or
electronic mail of their desire to become a party of record. Persons who only
signed petitions or mechanically produced form letters may be excluded as
parties of record. For non-land use hearings, parties of records are limited to the
principal parties, as defined in JCC 2.30.030(18).
(b) The examiner’s office shall provide a Parties of Record Registry (Register) for
use in each case. The Register shall include a place for entry of full name,
mailing address, phone number, and email address. The examiner’s office shall
be responsible for updating the initial Register to include all additional persons
who became parties of record during the hearing. A department or examiner may
exclude incomplete or illegible entries from the Register if the entry prohibits the
department or examiner from sending materials to the individual or entity. The
party of record shall indicate on the Register their preferred method of receiving
examiner document(s), consistent with Rule 1.12.
(c) Further written communication shall not be made to a party of record if mail or
electronic mail sent to the address provided by the party is returned by the postal
service or the email address is undeliverable for any reason and no attempt to
correct the address is made by the party of record.
5.7 Presence of Legal Counsel at Hearings
All parties participating in a hearing have the right to be represented by legal counsel of
their choice. At the request of the county, a representative of the Jefferson County
Prosecuting Attorney’s Office may be present at the hearing to represent the county.
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
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submitted in writing to the examiner’s office, at least 5 days in advance of the scheduled
hearing. To the extent possible, other materials, such as letters, exhibits, scientific or
technical data, shall be submitted in writing at least 5 days in advance of the scheduled
hearing. The documents submitted to the examiner’s office shall be made publicly
available.
5.8 Oath or Affirmation
All testimony before the examiner shall be given under oath or affirmation to tell the
truth, subject to the penalty of perjury. The examiner shall administer the oath or
affirmation.
5.9 Hearing Conducted as an Open Record Public Hearing, Unless a Special Hearing
All hearing shall be conducted as an open record public hearing, permitting public
comment and public testimony, unless the hearing is a special hearing under JCC
2.30.100(1).
5.10 Special Hearings
Special hearings, as described in JCC 2.30.100(1) shall be conducted as a public meeting
and shall not be conducted as an open record hearing. Special hearings do not include
written or oral public comment, or public testimony periods. Only persons called as
witnesses by a principal party shall be allowed to testify.
5.11 General Process of an Open Record Hearing
An open record hearing may include, but is not limited to:
(a) A brief introductory statement of the examiner process;
(b) A report by department staff including introduction of the request, reference to
visual aids, and a summary of the recommendation of the department;
(c) Testimony by the applicant, appellant, or petitioner;
(d) Calling and examining of witnesses;
(e) Cross-examination of witnesses;
(f) Introduction or presentation of documentary of physical evidence;
(g) Testimony of parties of records;
(h) An opportunity to rebut evidence against him/her;
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(i) An opportunity for questions by the examiner; and,
(j) Closing statements by principal parties, at the discretion of the examiner.
5.12 General Process of Special Hearings
Special hearings not requiring an open record hearing shall be a public meeting and may
include, but is not limited to:
(a) A brief introductory statement of the examiner process;
(b) A report by department staff including introduction of the request, reference to
visual aids, and a summary of the recommendation of the department;
(c) Calling and examining of witnesses by principal parties;
(d) Cross-examination of witnesses by principal parties, subject to reasonable
limitations;
(e) Testimony by the appellant, petitioner, or respondent;
(f) Introduction or presentation of documentary of physical evidence;
(g) An opportunity to rebut evidence against a party;
(h) An opportunity for questions by the examiner; and,
(i) Closing statements by principal parties, at the discretion of the examiner.
5.13 Default
(a) All Hearings, Excluding Enforcement Hearings (under Chapter 8.90 JCC). If the
moving party (applicant, appellant, or petitioner) fails to appear at the scheduled
hearing, fails to present a written statement in time for consideration at the
hearing, or fails to obtain a continuance the examiner shall enter an order of
default dismissing the hearing with prejudice.
(b) Enforcement Hearings (under Chapter 8.90 JCC). If the person responsible fails
to appear at the scheduled hearing, fails to present a written statement in time for
consideration at the hearing, or fails to obtain a continuance the examiner shall
enter an order of default with prejudice, with findings, and assessing the
appropriate monetary penalty pursuant to JCC 8.90.190. The county may enforce
the examiner’s order and recover all related expenses, including attorney’s fees,
plus the costs of the hearing or appeal and any monetary penalty from the person
responsible to JCC 8.90.200. A copy of the order of default shall be mailed to the
person responsible and against whom the default order was entered, the county,
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and if the person responsible is a tenant, to the landlord or owner of the property
where the violation is occurring.
5.14 Evidence
(a) Rules of Evidence.
i. Admissibility. Evidence, including hearsay evidence, is admissible if in
the judgment of the examiner it is the kind of evidence on which
reasonably prudent persons are accustomed to rely on in the conduct of
their affairs. The examiner shall have discretion on the admissibility of all
evidence.
ii. Privilege. The examiner shall exclude evidence that is excludable on
constitutional or statutory grounds or on the basis of evidentiary privilege
recognized in the courts this state, including ER 501.
iii. ERs. The hearings generally will not be conducted in strict adherence to
the ERs. However, if not inconsistent with Rule 5.14(a)(i), the examiner
may refer to the ERs as guidelines for evidentiary rulings.
(b) Testimony Under Oath. All testimony of parties and witnesses shall be made
under oath or affirmation.
(c) Pre-filed Exhibits. Exhibits pre-filed under Rule 4.1 and 4.2 shall be entered into
the record without action by the examiner. Pre-filed exhibits may be challenged
on admissibility grounds with a pre-hearing motion under Rule 3.4(a) or at the
hearing.
(d) Submittal of Evidence. Any party of record may seek to admit relevant evidence
into the record during their direct, cross-examination, or rebuttal portions of the
hearing, provided that the evidence is admissible.
(e) Rebuttal Evidence. Admissible rebuttal evidence in any form may be presented
to repond to both expert and lay person testimony.
(f) 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 with the original. A copy of all documents
submitted at the hearing shall be provided to the principal parties and examiner.
(g) Official Notice. At the request principal parties or on the examiner’s own
initiative, the examiner may take official notice of cognizable facts, or general,
technical, or scientific facts within the examiner’s specialized knowledge. The
examiner may take official notice of federal law, Washington state law, laws of
other Washington counties or cities, laws of federally recognized Indian tribes,
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laws of Washington administrative boards, such as the growth management
hearings board, laws of other states, and decisions from the Jefferson County
examiner.
(h) Updated Exhibit List. The department shall be responsible for updating the initial
exhibit list to include additional material received during the hearing, after the
hearing, or during a reconsideration process.
(i) Reconsideration or Clarification Documents. Documents involved in the
reconsideration or clarification process (e.g., petition for reconsideration) shall be
assigned sequential exhibit numbers for identification. Such documents shall
only become actual exhibits if the hearing is reopened.
(j) Burden of Proof and Standard of Review. The moving party shall have the
burden of proof as to the material factual issues, except where applicable code
provision, state law, or Washington common law provides otherwise. Unless
indicated otherwise by the applicable substantive law or below, the burden of
proof is by a preponderance of the evidence.
i. Appeal of a SEPA Threshold Determination Made Pursuant to Article X of
Chapter 18.40 JCC (other than determinations of significance). Subject to a
clearly erroneous standard of review.
ii. Type III Land Use Decision. The burden of proof is a preponderance of the
evidence and the burden is on the applicant to demonstrate compliance with
applicable policies, regulations, and laws.
iii. Appeal of a Type II Administrative Decision, Appeal of a Unified
Development Code Interpretation, Appeal of other Land Use Decisions, or
Appeal of other Administrative Decisions. Issues of law are subject to a de
novo standard of review. Issues of fact are subject to a substantial evidence
standard of review.
iv. Enforcement Hearings and Appeals (Chapter 8.90 JCC). The burden of
proof is by a preponderance of the evidence and the burden is on the
department to demonstrate violations of the code provisions.
(k) Filing After Closure of the Hearing. The examiner may request a document to be
filed after the close of the hearing. Only those documents or subject areas
referred to at the hearing may be submitted and only those specifically requested
by the examiner.
5.15 Recording of Hearings
The audio of each hearing shall be recorded to provide a record of the hearing.
Therefore, all parties speaking shall be required to speak into a provided microphone,
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unless another recording device is capable of recording the sound. All individuals
speaking must introduce themselves, including their full name, spelling of their last
name, and mailing address.
RULE 6 POST-HEARING PROCEDURES
6.1 Examiner’s Decision
(a) The examiner shall make and enter findings of fact from the record and
conclusions which supports the decisions. The findings of fact shall be supported
by substantial evidence in the record and the conclusions of law shall be based
upon applicable provisions of the comprehensive plan, sub area plans, Shoreline
Master Program, other relevant plans, applicable decisions of courts, and
applicable decisions of administrative agencies.
(b) The examiner’s decision shall be consistent with RCW 36.70.970.
(c) The examiner’s decision may: (1) approve the requested permit or decision; (2)
deny the requested permit or decision; (3) modify the requested permit or
decision; (4) affirm the county’s action or decision; (5) dismiss the county’s
decision or action; or, (6) modify the county’s decision or action. The examiner
may grant part of the requested action, but deny another part of the requested
action. If the examiner denies the requested permit or decision, it may be with
prejudice (reapplication or resubmittal is not permitted for one year) or without
prejudice (reapplication or resubmittal is permitted). The examiner may remand
administrative appeals to the director for action consistent with the examiner’s
decision.
(d) The examiner may attach reasonable and roughly proportional conditions.
(e) All decisions of the examiner shall be rendered within 14 days following the
conclusion of the hearing, unless the principal parties agree to an extension. If the
record remains open beyond the hearing, the decision shall be rendered within 14
days of closing the record.
(f) The examiner shall transmit a copy of each decision to the department. The
department shall transmit a copy of the decision to the parties of record.
6.2 Re-Opening a Hearing
(a) Prior to issuing a written decision on the hearing, the examiner may re-open the
hearing for good cause. Parties of record may submit written briefs or requests to
the examiner’s office requesting that the hearing be re-opened or the examiner
may re-open on its own initiative. For hearings held after the adoption of Chapter
2.30 JCC, the examiner at any time may re-open the hearing if the examiner
becomes aware that the decision was based on fraudulent evidence,
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misrepresentation, or other misconduct by a party of record or for any similar
reason which would require reopening the hearing in the interest of justice.
(b) If the hearing is re-opened and the examiner determines that another hearing is
required, the department shall provide notice, consistent with Rule 2.3 and
applicable JCC sections. However, notice of such further hearing shall be given
at least 10 days before the further hearing’s date. Notice shall be provided to all
parties of record from the initial hearing.
6.3 Clerical Mistakes
Clerical mistakes and errors arising from oversight or omission in the examiner’s
decisions or orders may be corrected by the examiner at any time either on their own
initiative or on the motion of a party of record. A copy of each page affected by the
correction, with the correction clearly identified, shall be noticed under the same
procedures for examiner’s decisions in Rule 6.1.
6.4 Setting Aside and Vacating a Default Order
Setting Aside and Vacating Default Order. The examiner has discretion to set aside a
default order when good cause is shown by the moving party (applicant, appellant,
petitioner, or respondent) and when the examiner deems the set aside just. The moving
party must file a written motion to set aside and vacate the default order with the
department within 10 days of the examiner’s decision or order. The motion shall contain
the following: (1) specific identification on the hearing and parties involved in the
notice, order, permit, decision, determination, or other action being petitioned for
reconsideration, including the county’s file number; (2) a concise statement of the
factual reasons supporting a good cause finding for not being present at the hearing; and,
(3) the full name, address, phone number, and email address of the petitioner or their
attorney.
6.5 Reconsideration
(a) An aggrieved party may file a written request for reconsideration with the
examiner’s office within 10 days of the issuance of the examiner’s decision.
Reconsideration is limited to one per hearing and one per aggrieved party or
group. If the examiner receives a reconsideration request from multiple
aggrieved parties or groups, the examiner shall consolidate the issues to one
reconsideration. The grounds for seeking reconsideration shall be limited to the
following: (1) the examiner exceeded their jurisdiction; (2) the examiner failed to
follow the applicable procedure in reaching a decision; (3) the examiner
committed an error of law or misinterpreted the applicable policy, regulation, or
law; (4) the examiner’s findings, conclusions, or conditions are not supported by
the record; and, (5) newly discovered evidence alleged as material to the
examiner’s decision which could not reasonably have been produced at the
hearing.
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(b) The request for reconsideration shall contain: (1) specific identification on the
hearing and principal parties involved in the notice, order, permit, decision,
determination, or other action to be considered for reconsideration, including the
county’s file number; (2) the specific findings, conclusions, actions, and
conditions which the petition on relies for reconsideration; (3) a concise
statement of the factual reason for reconsideration; (4) the full name, address,
phone number, and email address of the petitioner or their attorney; and, (5) if
applicable, the identity and specific nature of newly discovered evidence and its
importance in the reconsideration.
(c) If the request for reconsideration is granted, the examiner shall re-open the
hearing consistent with Rule 6.2. The examiner shall provide notice to all parties
of record of the pending reconsideration and the physical and electronic location
of relevant documents. If reconsideration is conducted without an in-person or
telephonic hearing under Rule 5.11 or 5.12, the examiner shall: (1) provide
notice of the pending reconsideration to parties of record under Rule 2.3; (2)
provide the physical and electronic location for all relevant documents, such as
the motion(s) for reconsideration to parties of record; and, (3) allow parties of
record to submit written rebuttal arguments within 10 days of notice being sent
to parties of record.
(d) The petition for reconsideration shall be decided within 14 days if another
hearing is held under Rule 5.11 or 5.12 or within 24 days after sending notice of
reconsideration to parties of record under Rule 6.5(c).
(e) If the reconsideration decision alters a decision, the altered decisions shall be
vacated and reissued as a reconsideration, consistent with Rule 6.1.
6.6 Clarification
Any principal party may request, within 10 days of the issuance of the examiner’s
decision clarification of the decision. Clarification is limited to correcting obvious errors
or seeking clarification on the application of specific issues. The request may be in letter
form to the examiner’s office containing the following: (1) specific identification on the
hearing and principal parties involved in the notice, order, permit, decision,
determination, or other action to be considered for clarification, including the county’s
file number; (2) the specific findings, conclusions, actions, and conditions which the
request seeks clarification; (3) a concise statement of the factual reason for clarification;
and, (5) the full name, address, phone number, and email address of the requestor or
their attorney. The examiner may dismiss request for clarification if the request is to
clearly delay the final decision or is otherwise improper.
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6.7 Appeals of Decisions
The examiner's decision on all matters is final and conclusive after reconsideration or
clarification periods, unless appealed. Reconsideration or clarification is not required to
appeal a decision. All decisions of the examiner shall be appealable to a court of
competent jurisdiction consistent with applicable state law, such as Chapter 36.70C
RCW (Land Use Petition Act) or Chapter 7.16 RCW, except appeals of certain shoreline
decisions The decision of the examiner on matters under Chapter 18.25 JCC (Shoreline
Master Program) may be appealable to the Shorelines Hearings Board in accordance
with Chapter 90.58 RCW or other applicable state law.
RULE 7 WITHDRAWAL OF APPLICATION, PETITION, OR APPEAL
7.1 Procedure to Withdraw
Withdrawal of a hearing shall be made by the applicant, appellant, or petitioner in
writing, except as provided below, and shall be accepted in the following manner:
(a) Withdrawal Prior to Publication of Hearing Notice. If withdrawal of a hearing is
made prior to publication of the public hearing notice, the applicant shall notify
the examiner’s office, which shall place the withdrawal in the official case file.
No further action by the department is necessary.
(b) Withdrawal After Issuance of Hearing Notice but Prior to Hearing. If withdrawal
of hearing is made after publication of the public hearing notice but prior to the
opening of the hearing, the applicant or appellant shall notify the examiner’s
Office of such withdrawal. The withdrawal shall be documented by the examiner
in a written order which shall be placed in the official case file and mailed to the
principal parties. The examiner’s office shall post the order on the examiner’s
website, along with a notice of cancellation.
(c) Withdrawal at or After Hearing but Prior to Decision. If withdrawal of a hearing
is made orally at the hearing or in writing after the hearing but before issuance of
a decision, the examiner shall accept the withdrawal. Withdrawal shall be
documented by issuance of a written order which shall be placed in the official
case file and mailed to principal parties. The examiner’s office shall post the
order on the examiner’s website and transmit the decision to parties of record.
(d) Withdrawal after Decision Issuance. Withdrawal of a hearing after a decision has
been issued will not be honored unless expressly authorized by the JCC or state
law.
7.2 Effect of Withdrawal
No appeal from a withdrawal is authorized. Withdrawal terminates county consideration
of the hearing and terminates the jurisdiction of the examiner. Withdrawal of an appeal
or hearing under Chapter 8.30 JCC (Public Nuisances) makes the administrative
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decision a final agency action. Withdrawals are without prejudice, unless otherwise
ordered with prejudice.
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Appendix C
Amendments to Title 18 Jefferson County Code
Chapter 18.05
INTRODUCTORY PROVISIONS
Sections:
18.05.010 Title.
18.05.020 Authority, purpose, and scope.
18.05.030 Code administration – Purpose.
18.05.040 Department of community development – Duties and responsibilities.
18.05.050 Planning commission – Duties and responsibilities.
18.05.060 Department of public works – Duties and responsibilities.
18.05.070 Department of environmental health – Duties and responsibilities.
18.05.080 Hearing examiner. (Repealed)
18.05.085 Hearing examiner rules of procedure. (Repealed)
18.05.090 Establishment of land use districts.
18.05.100 Official maps.
18.05.110 Land use district boundaries.
18.05.120 Critical area maps.
18.05.130 Applicability.
18.05.140 Water and sewer.
18.05.150 Applicability of Shoreline Master Program.
18.05.160 Applicability of permit requirements.
18.05.170 Nonconforming uses or structures.
18.05.180 Building code.
18.05.190 Subarea plans.
18.05.200 Minimum standards.
18.05.210 Title and headings not law.
18.05.220 Severability clause.
18.05.230 Waiver.
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18.05.080 Hearing examiner.
(1) Office Created.
(a) Pursuant to RCW 35.63.130 and 36.70.970, the separate office of the Jefferson County hearing
examiner (hearing examiner) is created and established.
(b) The hearing examiner shall exercise the authority designated in Chapter 18.40 JCC for the land use
matters set forth in this section.
(c) Hearings held by the hearing examiner shall constitute the hearings required by state law for such
land use matters.
(d) Unless the context requires otherwise, the term “hearing examiner” used in this code shall include
hearing examiners pro tempore.
(2) Appointment – Qualifications – Terms.
(a) The Jefferson County board of commissioners shall appoint the hearing examiner solely with regard
to qualifications for the duties of such office and the persons so appointed shall have such training or
experience as will qualify them to conduct administrative or quasi-judicial hearings on land use
regulatory matters.
(b) The terms of appointment for the hearing examiner shall be pursuant to their respective contracts
executed with the board of commissioners.
(c) The office of the hearing examiner shall be under the administrative supervision of the hearing
examiner. The office shall be separate and distinct from any other county officer or department.
(d) The hearing examiner shall hold no other appointive or elective public office or position in county
government except as provided in JCC 18.05.030 through 18.05.080.
(3) Appointment of Hearing Examiners Pro Tempore. The board of commissioners may appoint one or more
hearing examiners pro tempore to act in the absence of the regular hearing examiner. Such appointment shall
be from qualified applicants to be recommended by the hearing examiner as applicable. Hearing examiners pro
tempore, when acting in such capacity, shall have all powers and duties of the hearing examiner as prescribed
in this code or elsewhere.
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(4) Hearing Examiner – Conflict of Interest and Freedom from Improper Influence.
(a) The hearing examiner shall not conduct or participate in any hearing or decision in which the hearing
examiner has a direct or substantial financial interest.
(b) No member of the board of commissioners, county official or any other person shall attempt to
influence or in any way interfere with the examiner in the performance of their designated duties.
(5) Hearing Examiner – Powers.
(a) Hearing Examiner. As more specifically set forth in Chapter 18.40 JCC, the hearing examiner shall
have the authority to conduct open record predecision and open record appeal hearings and prepare a
record thereof, and enter written findings and conclusions, and decisions for the following land use
matters:
(i) Applications for reasonable economic use variances;
(ii) Applications for planned rural residential developments (PRRDs);
(iii) Applications for shoreline substantial development permits, and conditional and variance
permits under the Jefferson County Shoreline Master Program;
(iv) Applications for plat alterations and vacations;
(v) Applications for long subdivisions;
(vi) Applications for conditional use permits;
(vii) Applications for variances;
(viii) Application for wireless telecommunications facilities;
(ix) Appeals of administrative decisions releasing six-year Forest Practices Act (FPA) moratoria;
(x) Appeals of administrative decisions regarding cottage industries;
(xi) Appeals of administrative short subdivision decisions;
(xii) Appeals of administrative binding site plan decisions;
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(xiii) Appeals of administrative conditional use permit decisions;
(xiv) Appeals of administrative variance decisions;
(xv) Appeals of administrative decisions regarding substantial development permits under the
Jefferson County Shoreline Master Program;
(xvi) Appeals of administrative decisions regarding permits for wireless telecommunications
facilities;
(xvii) Appeals of formal Unified Development Code interpretations made by the administrator;
(xviii) Appeals of SEPA threshold determinations made by the responsible official; and
(xix) Any other matter designated by this code or other county ordinance.
(b) Criteria for Review. Conditions of Approval. As more specifically set forth in Chapter 18.40 JCC, the
decisions of the hearing examiner shall be based upon the policies of the Jefferson County
Comprehensive Plan, the Shorelines Management Act, the State Environmental Policy Act, the
standards set forth in this code and any other applicable land use plans or ordinances adopted by the
board of commissioners. The hearing examiner is empowered to attach reasonable conditions found
necessary to make a project compatible with its environment and to carry out the goals and policies of
the Comprehensive Plan, the Shoreline Master Program, or other applicable plan or program adopted by
the board of commissioners. Such conditions may include but are not limited to the following:
(i) Exact location and nature of development, including additional building and parking area
setbacks, screenings in the form of landscaped berms, landscaping, or fencing;
(ii) Impact of the development upon other lands;
(iii) Hours of use of operation or type and intensity of activities;
(iv) Sequence and scheduling of development;
(v) Maintenance of the development;
(vi) Duration of use and subsequent removal of structures;
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(vii) Granting of easements for utilities or other purposes and dedication of land or other provisions
for public facilities, the need for which the hearing examiner finds would be generated in whole or
in significant part by the proposed development;
(viii) Mitigation of any adverse environmental impacts;
(ix) Provisions that would bring the proposal into compliance with a policy(ies) of the
Comprehensive Plan; and
(x) Mitigating conditions authorized by any other provision of this code or other provision of local,
state or federal law.
(c) Procedural Rules. The hearing examiner shall have the power to prescribe rules and regulations
concerning procedures for hearings authorized herein, subject to confirmation by the board of
commissioners, to issue summons for and compel the appearance of witnesses, to administer oaths and
to preserve order. The privilege of cross-examination of witnesses in open record hearings shall be
accorded all interested parties or their counsel in accordance with rules of the hearing examiner.
(6) Standards of Review – Hearing Examiner.
(a) Matters in which the hearing examiner is empowered to make a final decision on a project permit
application (i.e., following an open record predecision hearing) or on an appeal of a formal Unified
Development Code interpretation made by the administrator (i.e., following an open record appeal
hearing) shall be subject to a de novo standard of review.
(b) Matters in which the hearing examiner is empowered to make a final decision on an appeal of a
decision of the administrator on a project permit application or on an appeal of a decision of the SEPA
responsible official (i.e., following an open record appeal hearing) shall be subject to a clearly erroneous
standard of review.
18.05.085 Hearing examiner rules of procedure.
(1) Conflicts Among Authorities. These rules may conflict with other sources or authorities of law. The order of
precedence applicable to such conflict situations shall be (from top to bottom) as follows:
(a) State or federal constitution;
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(b) State or federal statutes;
(c) State or federal regulations;
(d) State or federal published case law;
(e) UDC or other applicable duly enacted Jefferson County ordinance;
(f) These rules.
Thus, for example, to the extent these rules conflict with the UDC, then the applicable UDC provision shall
apply.
(2) Definitions. The following definitions apply for the purposes of this section:
(a) Aggrieved Person. A person or entity is deemed to be an “aggrieved person” only when all of the
following conditions are present:
(i) The decision being challenged has prejudiced or is likely to prejudice that person or entity;
(ii) The person or entity’s asserted interests are among those that the county was required to
consider when it made the decision; and
(iii) A judgment or decision in favor of that person or entity would substantially eliminate or redress
the prejudice to that person or entity caused or likely to be caused by the challenged decision.
(b) “BOCC” means the board of county commissioners for Jefferson County, the county legislature for
the municipal corporation known as Jefferson County or any subsequently created or approved
legislative body for Jefferson County.
(c) “Comprehensive Plan” means the 1998 Jefferson County Comprehensive Plan and Land Use Map as
now adopted and as may be amended in the future.
(d) “Ex parte communication” means any written or oral communication between an aggrieved person or
a government agency and a hearing examiner that was made outside of public hearing and was not
included in the public record.
(e) “Hearing examiner” means the hearing examiner.
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(f) “Hearing” means an open record predecision hearing before a hearing examiner. By way of example
only, the term “hearing” includes appeals based upon the UDC, the State Environmental Policy Act (or
“SEPA”) and road vacation requests directed to and handled by the county’s department of public works.
(g) “Interested citizen” means any person or entity that has:
(i) Asked for a copy of a written hearing examiner decision by either requesting (in writing) such
documents from the Jefferson County department of community development or has signed a
register provided for such purpose at an open record predecision hearing; or
(ii) Made comments (written, oral or otherwise) during an open record predecision hearing.
(h) “Party” means an aggrieved person (as defined above) who has filed the fee required by Jefferson
County ordinance to initiate or generate the hearing process. The applicant and the Jefferson County
agency that provided one or more reports to the hearing examiner shall be considered parties to the
hearing. Those persons or entities meeting the definition of “interested citizen” above shall not be
considered to be a “party” for the purposes of this section unless they also meet the definition of
“aggrieved person” listed above. For the purposes of hearings relating to road vacations, the petitioner
requesting the road vacation shall be considered a “party” as that term is defined in this section.
(i) Timely Submissions. Written submissions to the hearing examiner shall be considered timely if the
submission is sent to the hearing examiner (via paper or electronically) seven days before the date of
the hearing. A submission is deemed to be sent when it is either sent electronically or possession of the
submission in paper form is transferred to the United States Postal Service or any private document
carrier.
(j) “UDC” means the Unified Development Code, a set of development regulations derived from the
Growth Management Act, the county’s Comprehensive Plan that were made effective as of January 16,
2001, as they are now adopted and as they may be amended, replaced or revised in the future.
(3) Standing. Only an “aggrieved person,” as that term is defined in this section, shall have the authority (legally
known as “standing”) to come before the hearing examiner and seek a remedy or resolution from the hearing
examiner. A determination by the hearing examiner that a person or entity holds or lacks standing can be
appealed pursuant to law.
(4) Powers of the Hearing Examiner. The hearing examiner shall have the following powers:
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(a) To make all rulings, determinations or decisions he or she is permitted to make pursuant to the laws
and regulations of this country and this state and the ordinances of Jefferson County and to enter, if
necessary, any written or oral order that accomplishes or implements any act the hearing examiner is
authorized to do. The authority granted by this section includes, but is not limited to, the authority to
approve, deny or remand an application, proposal or decision before him or her or, in the alternative,
combine one or more of the three alternatives listed, e.g., approve in part, remand in part.
(b) To enter, if necessary, a written or oral order, finding and ruling that a particular person or entity is not
an “aggrieved party” as that term is defined in this section and thus does not have standing (in the legal
sense) to seek a resolution or remedy from the hearing examiner.
(c) To hold the power, while conducting any hearing, to administer oaths, preserve order, limit or not
accept repetitious testimony, and to issue summons for and compel the appearance of witnesses and
production of documents and/or materials.
(d) To have sole discretion to rule on all procedural disputes that arise during a hearing, subject to
subsequent appeal if a party decides that decision of the hearing examiner was incorrect factually or
legally.
(e) To inspect the site which is the subject of a matter before him or her prior to or subsequent to the
hearing if he or she deems it necessary to obtain a full understanding of the case. The failure of the
hearing examiner to view a site shall not nullify or injure the decision ultimately rendered by that hearing
examiner.
(f) To review and consider in making his or her decision all “timely submissions,” as that term is defined
in this section. He or she shall have full discretion as to whether they will consider submissions that are
not timely.
(g) To continue proceedings for any good cause he or she deems reasonable and appropriate provided
they enter a written or oral order doing so before making their final decision or recommendation.
(h) To continue, upon an oral statement of good cause being shown, the current hearing to a specific
time, place and date without further notice of that new date, time and place if he or she specifies on the
record the time, date and place for the continuation of the hearing.
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(i) To reopen a hearing after a written decision is rendered but before the applicable appeal period
expires if he or she becomes aware that the decision rendered:
(i) Was based on fraudulent evidence, misrepresentation or other misconduct by a “party” (as that
term is defined in this section); or
(ii) Was based upon mistake, misconception of facts, or erroneous application of the law.
(j) To set a date for the reopened hearing, but said date must be sufficiently in the future to provide not
less than 10 days’ written notice of the time, date and place for the reopened hearing in the official
newspaper for Jefferson County and 10 days’ written notice of the time, date and place for the reopened
hearing to all “parties” and “interested citizens” as those terms are defined within this section.
(k) To set a time and date when the public comment period for a particular matter before the hearing
examiner closes or ceases.
(l) To dismiss the application or appeal for default if the applicant or appealing party (or their designated
representative) fails to appear at the regularly scheduled hearing or the reopened hearing, subject to the
applicant or appealing party (or their designated representative) filing a request within seven business
days to vacate the default for good cause shown.
(m) To impose upon an applicant or appellant (or their designated representative) who is subject to a
default but subsequently has that default vacated, the costs associated with providing written notice for
the rescheduled hearing date and any costs associated with the initial hearing date that the applicant or
appealing party missed or did not appear at.
(5) Disqualification or Recusal of Hearing Examiner. Any person acting as a hearing examiner for Jefferson
County is subject to disqualification for bias, prejudice, conflict of interest or any other cause for which a judge
can be disqualified under the Code of Judicial Conduct.
Any “party” or “interested citizen” (as those terms are defined in this section) may request the hearing examiner
to disqualify himself or herself as soon as reasonably possible upon discovering potential grounds for
disqualification. The hearing examiner shall determine whether to grant the request, stating facts and reasons
for their decision. If the hearing examiner is requested to recuse himself or herself but does not, the making of
the request by a “party” or “interested citizen” shall not be considered by the hearing examiner when they make
their substantive decision.
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If the hearing examiner believes that his or her relationship to the “parties” (as that term is defined in this
section) or his or her financial interest in the subject of the hearing creates the appearance that the
proceedings will not be fair, then the examiner must either (a) voluntarily step down from the case; or (b)
disclose the relationship or interest on the record and state that he or she has a bona fide conviction that the
interest or relationship will not interfere with the rendering of an impartial decision.
A hearing examiner’s voluntary decision to recuse himself or herself shall be made as soon as the need for
recusal becomes apparent or known to the hearing examiner.
Recusal or disqualification of a hearing examiner shall not be necessary or mandated simply because the
hearing examiner has considered the same or similar proposal in another hearing, has made a ruling adverse
to the interest of a “party” (as that term is defined in this section) in the present or another hearing, or has
considered and ruled upon the same or similar issue in the same or similar context.
(6) Evidence.
(a) 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 would tend to
prove or disprove a material or relevant fact or assertion and would be 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. Relevant material and reliable evidence shall be admitted. Irrelevant,
immaterial, unreliable and repetitious evidence may be excluded at the sole discretion of the hearing
examiner, who shall, during the hearing, have full discretion to make evidentiary rulings.
(b) 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.
(c) 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 a recommendation or decision of the hearing examiner rests, in whole or in part, upon the taking
of official notice of a material fact not appearing in the evidence of the record, opportunity to disprove
such facts so noted shall be granted any affected person making timely notice thereof.
(d) Evidence Received Subsequent to the Hearing. If additional evidence is submitted after the public
hearing or after the date when public comment will no longer be accepted, such additional evidence will
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only be considered upon a showing that the evidence has significant relevance and there is good cause
for the delay in its submission. All “parties” (as that term is defined herein) will be given notice of the
consideration of such evidence and, at the discretion of the hearing examiner, granted an opportunity to
review such evidence and file rebuttal arguments regarding that additional evidence.
(7) Recording the Hearing. Hearings shall be electronically or digitally recorded and such recordings shall be
part of the official case record. Copies of the electronic recordings of a particular proceeding shall be made
available to the public upon request and the reasonable cost of such copying shall be paid by the person or
party requesting the recording.
(8) Obtaining Copies. Copies of any or all documents submitted during a hearing can be obtained by any
person or party willing to pay for such copies.
(9) Testimony. All testimony before the hearing examiner shall be taken under oath.
(10) Rights of Parties. Every party (as that term is defined in this section) shall have the right of proper notice,
cross-examination (rebuttal), presentation of evidence, objection and all other rights essential to a fair hearing.
Cross-examination shall be permitted to the extent it is necessary for a full disclosure of the facts.
(11) Ex Parte Communications Prohibited (and Remedy). No person or entity that is either a “party” or
“interested citizen,” as those terms are defined in this section, with respect to a particular petition or application
which has been designated for an hearing before the hearing examiner shall communicate ex parte (outside of
the record), directly or indirectly, with the hearing examiner concerning the merits of that or a factually related
petition or application. This rule shall not prohibit ex parte communications that purely concern procedural
matters (e.g., what are the deadlines for a timely submission, where can I get a copy of the hearing examiner
rules, what is the address for the county?).
No hearing examiner shall communicate ex parte, directly or indirectly, with any person or entity that is either a
“party” or “interested citizen,” as those terms are defined in this section, with respect to a particular petition or
application which has been designated for a hearing before the hearing examiner concerning the merits of that
or a factually related petition or application. Communications about purely procedural matters do not fall within
this prohibition.
If a substantial prohibited ex parte communication is made to or by the hearing examiner, then such
communication shall be publicly disclosed and the hearing examiner shall, within his or her discretion, abstain
from participating in any consideration of the matter that was discussed ex parte.
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Chapter 18.10
DEFINITIONS
18.10.010 A definitions.
“Aggrieved party person” means a party of record who can demonstrate the following:
(a) The land use decision will prejudice the person;
(b) The asserted interests are among those the county is required by county code, federal or state law or
regulation to consider in making a land use decision; and
(c) The person is a party of record, as defined in JCC 18.10.160; and,
(c) (d) A decision on appeal in favor of the person would substantially eliminate or redress the prejudice
alleged to be caused by the land use decision.
18.10.030 C definitions.
“Calendar day” means any day of the week, including weekends and holidays. When used for computing time,
the day shall begin with the first day following the act or event initiating such period of time occurred. When the
last day of the period so computed is a Saturday, Sunday, or a county, national, or state holiday, the period
shall run until the end of the following business day.
18.10.080 H definitions.
“Hearing Examiner” has the same meaning as Examiner in JCC 2.30.030(8).
“Hearing Examiner Rules of Procedure” means the Hearing Examiner Rules of Procedure adopted pursuant to
JCC 2.30.070.
18.10.160 P definitions.
“Parties of record” means the land use permit applicant; persons who have testified at the open record
hearing; and any persons who have submitted written comments concerning the application that forms part of
the public record (excluding persons who only signed petitions or mechanically produced form letters.)
"Parties of record" means persons or entities who wish to receive a copy of the Hearing Examiner's decision
and notice of upcoming hearings. "Parties of record" includes the applicant, appellant, petitioner, respondent,
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their agents and representatives, the county, and persons or entities who: indicate on a sign-up sheet, at a
public hearing, that they wish to become a party of record; or, for public hearings specifically advised the
Examiner’s Office by individual written letter or electronic mail of their desire to become a party of record.
Persons who only signed petitions or mechanically produced form letters may be excluded as parties of record.
Chapter 18.40
PERMIT APPLICATION AND REVIEW PROCEDURES/SEPA IMPLEMENTATION
Sections:
Article I. Types of Project Permits
18.40.010 Purpose.
18.40.020 Procedures for processing project development permit applications.
18.40.030 Determination of proper type of procedure.
18.40.040 Project permit application framework.
18.40.050 Joint public hearings (other public agency hearings).
18.40.060 Legislative enactments.
18.40.070 Legislative enactments not restricted.
18.40.080 Exemptions from project permit processing.
Article II. Project Permit Applications (Type I – IV)
18.40.090 Preapplication conference.
18.40.100 Development permit application.
18.40.110 Determination of complete application – Additional information and project revision.
18.40.120 Referral and review of development permit applications.
18.40.130 Scope of project review.
18.40.140 Project consistency.
Article III. Public Notice Requirements
18.40.150 Public notice – Generally.
18.40.160 Notice of application – When required.
18.40.170 Notice of application – Time of issuance.
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18.40.180 Notice of application – SEPA exempt projects.
18.40.190 Notice of application – Contents.
18.40.200 Notice of application – SEPA integration.
18.40.210 Notice of application – Mailing, publication, and posting requirements.
18.40.220 Notice of application – Public comment.
18.40.230 Notice of public hearing.
18.40.240 Additional public notice requirements – Type III preliminary plat actions.
18.40.250 Optional additional public notice.
Article IV. Project Review and Approval Processes
18.40.260 Administrative approvals without notice (Type I).
18.40.270 Administrative approval subject to notice (Type II).
18.40.280 Hearing examiner review and decision (Type III decisions and appeals of Type II decisions).
18.40.290 Board of county commissioners action (Type IV decisions).
18.40.300 Procedures for public hearings. (Repealed)
18.40.310 Reconsideration. (Repealed)
18.40.320 300 Final decision.
18.40.310 Expiration of Applications. (New)
18.40.320 Vesting of Applications. (New)
18.40.325 Suspension, Revocation, or Modification of Permits. (New)
Article V. Appeals
18.40.330 Administrative appeals.
18.40.340 Judicial appeals.
Article VI. Unified Development Code Interpretation
18.40.350 Purpose.
18.40.360 Submission requirements.
18.40.370 Administrator’s decision.
18.40.380 Time limitation and enforcement.
18.40.390 Appeals of administrator’s interpretations.
18.40.400 Judicial appeal.
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Article VIII. Conditional Uses
18.40.490 Purpose.
18.40.500 Scope.
18.40.510 Application submittal and contents.
18.40.520 Conditional use permit types – Review processes.
18.40.530 Approval criteria for all conditional uses.
18.40.540 Additional conditions.
18.40.550 Use of property before final decision.
18.40.560 Effective period – Expiration.
18.40.570 Modification of a conditional use permit.
18.40.580 Conditional use permit to run with the land.
18.40.590 Permit suspension or revocation.
18.40.600 Assurance device.
Article I. Types of Project Permits
18.40.040 Project permit application framework.
Table 8-1. Permits – Decisions
1
Type I Type II Type III Type IV Type V
Septic permits Classification of Reasonable economic Final plats under Special use permits,
unnamed and use variances under Chapter 18.35 JCC such as for siting
discretionary uses JCC 18.15.220 essential public
under Article II of facilities under
Chapter 18.15 JCC JCC 18.15.110
Allowed uses not Release of six-year PRRDs under Article Final PRRDs under Jefferson County
requiring notice of FPA moratorium for VI-M of Article VI-M of Comprehensive
application (e.g., an individual single-Chapter 18.15JCC Chapter 18.15 JCC Plan amendments
“Yes” uses listed in family residence under and major under
Table 3-1 in JCC 18.20.160 amendments to Chapter 18.45 JCC
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Table 8-1. Permits – Decisions
1
Type I Type II Type III Type IV Type V
JCC 18.15.040, PRRDs under
building permits, etc.) JCC 18.15.545(3)
Minor amendments Cottage industries Shoreline substantial Amendments to
to planned rural under JCC 18.20.170 development permits, development
residential for secondary uses, regulations including
developments and cConditional use amendments to this
(PRRDs) under permits, and variance UDC and the Land
JCC 18.15.545 permits under the Use Districts Map
Jefferson County
Shoreline Master
Program (SMP)
Home businesses Short subdivisions Plat alterations and Amendments to the
approved under under Article IV of vacations under Jefferson County
JCC 18.20.200 Chapter 18.35 JCC JCC 18.35.030(3) SMP
Temporary outdoor Binding site plans Long subdivisions Subarea and utility
use permits under under Article V of under Article V of plans and
JCC 18.20.380 Chapter 18.35 JCC Chapter 18.35 JCC amendments thereto
Stormwater Administrative Discretionary Development
management permits conditional use conditional use agreements and
under JCC 18.30.070 permits under permits under amendments thereto
JCC 18.40.520(1) and JCC 18.40.520(2) under Article XI of
\[i.e., listed in Table 3-1 \[i.e., listed in Table 3-this chapter
in JCC 18.15.040 as 1 in JCC 18.15.040 as
“C(a)”\]. “C(d)”\] where required
by administrator
Road access permits Discretionary Conditional use
under JCC 18.30.080 conditional use permits under
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Table 8-1. Permits – Decisions
1
Type I Type II Type III Type IV Type V
permits under JCC 18.40.520(3) Master plans for
JCC 18.40.520(2) \[i.e., (i.e., uses listed in master planned
listed in Table 3-1 in Table 3-1 in resorts
JCC 18.15.040 as JCC 18.15.040 as “C”)
“C(d)”\] unless Type III
process required by
administrator
Sign permits under Minor variances under Major variances under
JCC 18.30.150 JCC 18.40.640(1) JCC 18.40.640(2)
Boundary line Administrative Wireless
adjustments under conditional use telecommunications
Article II of permits, under permits under
Chapter 18.35 JCC Jefferson County JCC 18.20.130 and
SMP, JCC Chapter 18.42 JCC
18.25.260(2) listed in
JCC 18.25.220, Table
18.25.220 as “C(a)”
Discretionary
conditional use
permits under
Jefferson County
SMP, JCC
18.25.260(3) listed in
JCC 18.25.220, Table
18.25.220 as “C(d)”,
unless Type III
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Table 8-1. Permits – Decisions
1
Type I Type II Type III Type IV Type V
process required by
administrator
Minor adjustments to Wireless Major industrial
approved preliminary telecommunications development
short plats under permits under conditional use
JCC 18.35.150 JCC 18.20.130 and approval under Article
Chapter 18.42 JCC VIII of
Chapter 18.15JCC
Minor amendments Small-scale recreation
to approved and tourist (SRT) uses
Forest practices
preliminary long plats in SRT overlay district
release of a
under JCC 18.35.340 under JCC 18.15.572.
moratorium under
Site plan approval
Chapter 18.20 JCC
Plat alterations under
advance
JCC 18.35.670.
determinations under
Article VII of this
Appeals of
chapter and
enforcement actions
boundary line
under
agreements under
Chapter 18.50JCC
Article VIII of
Chapter 18.35 JCC
Exemptions under
the Jefferson County
SMP
Revisions to permits
issued under the
Jefferson County
SMP
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Table 8-1. Permits – Decisions
1
Type I Type II Type III Type IV Type V
1
If not categorically exempt pursuant to SEPA, Type I projects shall be subject to the notice requirements of
JCC 18.40.150
through 18.40.220 and Article X of this chapter (the SEPA integration section).
Table 8-2. Action Types – Process
Project Permit Application Procedures (Types I – IV) Legislative
Type I Type II Type III Type IV Type V
1
Recommendation Project Project planner Project planner N/A Planning commission
made by: planner
Final decision Administrator Administrator Hearing Board of county Board of county
made by: examiner commissioners commissioners
Notice of No Yes Yes No N/A
application:
Open record No Only if Yes, before No Yes, before planning
public hearing: administrator’s hearing commission to make
decision is examiner, prior recommendation to
appealed, open to permit board of county
record hearing decision by the commissioners
before hearing hearing
examiner examiner
Closed record No No No N/A Yes, or board of
appeal/final county commissioners
decision: could hold its own
hearing
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Table 8-2. Action Types – Process
Project Permit Application Procedures (Types I – IV) Legislative
Type I Type II Type III Type IV Type V
2
Judicial appeal: Yes Yes Yes Yes Yes
1
Type V land use actions are subject to review and recommendation by the planning
commission. However, utility plans and moratoria and interim zoning controls adopted under
RCW 36.70A.390 are not subject to review and consideration by the planning commission.
2
Pursuant to RCW 36.70A.250 and 36.70A.280, the Western Washington Growth
Management Hearings Board (WWGMHB) is authorized to hear and determine petitions
alleging that the county is not in compliance with the requirements of Chapter 36.70A RCW,
Chapter 90.58 RCW as it relates to the adoption of the Shoreline Master Program, or
Chapter 43.21C RCW as it relates to plans, development regulations, or amendments,
adopted under RCW 36.70A.040 or Chapter 90.58 RCW. Direct judicial review may also be
obtained pursuant to RCW 36.70A.295.
If not categorically exempt pursuant to SEPA, Type I projects shall be subject to the notice requirements of
JCC 18.40.150 through 18.40.220 and Article X of this chapter (the SEPA integration section).
SUMMARY OF DECISION-MAKING
Type I: In most cases, administrative without notice. However, if a Type I permit is not categorically exempt
under SEPA, then, administrative with notice.
Type II: Administrative with notice. Final decision by administrator unless appealed. If appealed, open record
hearing and final decision by hearing examiner.
Type III: Notice and open record public hearing before the hearing examiner. Final decision by hearing
examiner. Appeal to superior court.
Type IV: Closed record decision by board of commissioners during a regular public meeting. Type IV decisions
are purely ministerial in nature (see Article IV of Chapter 18.35 JCC).
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Type V: Except for utility plans, notice and public hearing before planning commission, with planning
commission recommendation to board of commissioners. Notice of public hearings provided prior to
final legislative decisions (see Chapter 18.45 JCC).
18.40.080 Exemptions from project permit processing.
(1) Applicability. Whenever a permit or approval in the Jefferson County Unified Development Code has been
designated as a Type II, III or IV permit, the procedures set forth in Articles I through IV of this chapter shall be
followed in project permit processing. The following permits or approvals are specifically excluded from the
procedures set forth in this chapter:
(a) Landmark designations;
(b) County road vacations; and
(c) As authorized under RCW 43.21C.031 (2)(a), public works projects identified as planned actions in
the Jefferson County Comprehensive Plan or any amendments thereto. Planned actions are those public
or private projects specifically identified by county ordinance or resolution adopted after environmental
review conducted in conjunction with the adoption or annual amendment of the Comprehensive Plan.
(2) Exemptions. If categorically exempt under SEPA, Chapter 43.21C RCW, Type I permits shall not be subject
1
to the following provisions contained in this chapter:
(a) The notice of application requirements of JCC 18.40.150 through 18.40.220;
(b) Except as provided in RCW 36.70B.140, optional consolidated project permit review processing
under JCC 18.40.030(2);
(c) Joint public hearings under JCC 18.40.050; and
(d) A single report stating that all decisions and recommendations made as of the date of the report on
all project permits included in the consolidated permit process that do not require an open public record
predecision hearing and any recommendations on project permits that do not require an open record
predecision hearing, as further set forth in RCW 36.70B.060(5).
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(3) Notice of Decision. Unless the applicant waives the time deadlines in writing, all Type I permits shall should
be processed within 120 calendar days after the applicant files a complete application, subject to
JCC 18.40.110.
Article III. Public Notice Requirements
18.40.150 Public notice – Generally.
(1) Public notice is not required for Type I projects that are categorically exempt from SEPA. If not SEPA
exempt, Type I projects are subject to the notice of application and SEPA notice requirements set forth in
JCC 18.40.160 through 18.40.220 and Article X of this chapter.
(2) Public notice of the notice of application and of the open record predecision public hearing, if any, is
required for all Type II and Type III actions. Published notice is not required for closed record public meetings
before the county commissioners (i.e., Type IV approvals of long plats and PRRDs), because no new testimony
or evidence is allowed at such meetings or hearings. Mailed notice of closed record public hearings shall be
provided to all parties of record.
(3) Public notice is not required for other Type IV actions because no public hearing is held.
(4) Public notice of Type V legislative actions must be published as described in Chapter 18.45 JCC and as
required by state law.
(5) The applicant shall be responsible for all costs of public notice. \[Ord. 8-06 § 1\]
18.40.170 Notice of application – Time of issuance.
The administrator shall issue the notice of application within 14 calendar days of issuing the determination of
completeness. If an open record predecision public hearing is required for the requested project permit(s), the
notice of application shall be issued at least 15 calendar days prior to the public hearing. \[Ord. 8-06 § 1\]
18.40.180 Notice of application – SEPA exempt projects.
A notice of application shall not be required for project permits that are categorically exempt under SEPA,
unless a public comment period or an open record predecision hearing is required. A notice of application shall
be required for all Type II projects, regardless of whether such projects are exempt from SEPA. \[Ord. 8-06 § 1\]
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18.40.190 Notice of application – Contents.
The notice of application shall include the following:
(1) The name and address of the applicant or the applicant’s representative;
(2) The date of application, the date of the notice of completion for the application, and the date of the notice of
application;
(3) The street address location of the project or, if unavailable, a description of the subject property reasonably
sufficient to inform the public of its location, which may include a vicinity location (map), the location in
reference to roadway intersections, or a written description (rural route box or subdivision lot and block alone
are not sufficient);
(4) A description of the proposed project action, use or development and a list of project permits included in the
application and, if applicable, a list of any additional studies requested under JCC 18.40.110(6);
(5) The identification of state, federal or other permits required by other agencies with jurisdiction not included
in the application, to the extent known by the county;
(6) The identification of existing environmental documents that evaluate the proposed project, and the location
of where the application and any studies can be reviewed;
(7) The name and phone number of the contact project planner;
(8) A statement of the limits of the public comment period, which shall be 14 calendar days following the date of
the notice of application (or 20 or 30 calendar days if the application involves a permit under the Jefferson
County Shoreline Master Program, as further set forth in JCC 18.40.220);
(9) Statements of the right of any person to comment on the application, become a party of record, receive
notice of and participate in any hearings, request a copy of the decision once made, and any appeal rights;
(10) A statement of the preliminary determination, if one has been made at the time of the notice of application,
of the proposed project’s consistency with applicable development regulations and of those development
regulations that will be used for project mitigation, as provided in RCW 36.70B.040 and JCC 18.40.140;
(11) Pursuant to WAC 197-11-355, a statement on the first page of the notice of application that:
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(a) The optional DNS process of WAC 197-11-355 is being used;
(b) This may be the only opportunity to comment on the environmental impacts of the proposal;
(c) The proposal may include mitigation measures under applicable development regulations, and the
project review process may incorporate or require mitigation measures regardless of whether an EIS is
prepared; and
(d) A copy of the subsequent threshold determination may be obtained upon request, and will be mailed
to any person commenting upon the notice of application. In addition, the notice of application shall list
the conditions being considered to mitigate environmental impacts, if a mitigated DNS is expected;
(12) The date, time, place and type of hearing, if applicable, and if scheduled prior to the date of the notice of
application;
(13) A statement of when and where a copy of the application, all supporting documentation and evidence
relied upon by the applicant, and applicable development regulations may be available for public inspection;
and,
(14) A statement that a copy of the staff report will be available for inspection at no cost to the public at least
seven calendar days prior to the public hearing (if applicable); and
(1514) Any other information the administrator determines appropriate.
Article IV. Project Review and Approval Processes
18.40.280 Hearing examiner review and decision (Type III decisions and appeals of Type
II decisions).
(1) The hearing examiner shall review and make findings, conclusions and a decision on all Type III permit
applications and appeals listed under 18.40.280(3)(b) of Type II decisions.
(2) For Type III actions, the administrator shall prepare a staff report on the proposed development or action
summarizing the and considering timely public comments, and summarizing and considering recommendations
of county departments, and affected agencies or and special districts, and evaluating the development’s
consistency with this Unified Development Code, adopted plans, and regulations. The staff report shall include
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proposed findings, conclusions, and recommendations for disposition of the development application. The staff
report shall include and consider all written public comments on the application.
(3) Upon receiving a recommendation from the administrator or notice of any other matter requiring the hearing
examiner’s attention (e.g., an appeal of a Type II administrative decision), the hearing examiner shall perform
the following actions as appropriate:
(a) Hold an open record predecision hearing on a Type III permit application and make a decision after
reviewing the recommendation of the administrator; or
(b) Hold an open record appeal hearing and make a decision on the following matters:
(i) Appeals of Type II administrative decisions;
(ii) Appeals of administrative interpretations made under Article VI of this chapter;
(iii) Appeals of SEPA threshold determinations made pursuant to Article X of this chapter (other
than determinations of significance); and
(iv) Other matters not prohibited by law.
(4) The hearing examiner shall conduct a public hearing on all Type III development proposals and appeals
listed under 18.40.280(3)(b). of Type II administrative decisions for the purpose of taking testimony, hearing
evidence, considering the facts germane to the proposal or appeal, and evaluating the proposal or appeal for
consistency with this Unified Development Code, adopted plans and regulations. Notice of the hearing
examiner hearing shall be in accordance with JCC 18.40.230. As applicable, all appeals of administrative
interpretations made under Article VI of this chapter, and appeals of SEPA threshold determinations made
under Article X of this chapter (other than determinations of significance (DS)) shall be considered together with
the decision on the project application in a single, consolidated public hearing.
(5) In addition to the approval criteria listed elsewhere in this Unified Development Code, the hearing examiner
shall not approve a proposed development unless he/she first makes the following findings and conclusions:
(a) The development adequately mitigates impacts identified under Articles VI-D through VI-I of
Chapter 18.15 JCC (i.e., environmentally sensitive areas) and Article X of this chapter (i.e., SEPA
implementing provisions);
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(b) The development is consistent with the Jefferson County Comprehensive Plan and meets the
requirements and intent of this Unified Development Code;
(c) The development is not detrimental to the public health, safety and welfare;
(d) For subdivision applications, findings and conclusions shall be issued in conformance with
Chapter 18.35 JCC and RCW 58.17.110.
(6) In the hearing examiner’s decision regarding Type III actions and appeals of Type II administrative
decisions, the hearing examiner shall adopt make written findings and conclusions.
(a) The hearing examiner’s decision following closure of an open record predecision public hearing on a
Type III action shall include one of the following actions:
(i) Approve;
(ii) Approve with conditions;
(iii) Deny without prejudice (reapplication or resubmittal is permitted); or
(iv) Deny with prejudice (reapplication or resubmittal is not permitted for one year).
(b) A hearing examiner’s decision following an open record appeal hearing on a Type II administrative
decision, on a SEPA threshold determination on a Type II administrative decision, or on a SEPA
threshold determination on a Type III permit decision shall include one of the following actions:
(i) Grant the appeal in whole or in part;
(ii) Deny the appeal in whole or in part; or
(iii) If appropriate, in a proceeding involving a SEPA appeal of a threshold determination
consolidated with the hearing on a Type III permit application, continue the open record public
hearing pending SEPA compliance.
(c) The hearing examiner decision shall be issued within 10 working days unless a longer period is
agreed upon by the hearing examiner and the applicant. \[Ord. 8-06 § 1\]
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18.40.300 Procedures for public hearings (Repealed)
Public hearings (including open record appeals of Type II decisions and open record predecision hearings on
Type III permit applications) shall be conducted in accordance with the hearing examiner’s rules of procedure
and shall serve to create or supplement an evidentiary record upon which the hearing examiner will base
his/her decision. In cases where scientific standards and criteria affecting project approval are at issue, the
hearing examiner shall allow orderly cross-examination of expert witnesses presenting reports and/or scientific
data and opinions. The hearing examiner may address questions to any party who testifies at a public hearing.
The hearing examiner shall open the public hearing and, in general, observe the following sequence of events:
(1) Staff presentation, including submittal of any administrative reports. The hearing examiner may ask
questions of the staff;
(2) Applicant presentation, including submittal of any materials. The hearing examiner may ask questions of the
applicant;
(3) Testimony or comments by the public germane to the matter;
(4) Rebuttal, response or clarifying statements by the staff and the applicant;
(5) The evidentiary portion of the public hearing shall be closed and the hearing examiner shall deliberate on
the matter before him/her;
(6) Pursuant to RCW 36.70.970, each final decision of the hearing examiner shall be in writing and shall include
findings and conclusions, based on the record, to support the decision. Such findings and conclusions shall
also set forth the manner in which the decision would carry out and conform to the Jefferson County
Comprehensive Plan, this Unified Development Code and any other applicable county development
regulations. Each final decision of the hearing examiner, unless the applicant and hearing examiner mutually
agree to a longer period in writing, shall be rendered within 10 working days following conclusion of all
testimony and hearings.
18.40.310 Reconsideration. (Repealed)
A party of record at a public hearing may seek reconsideration only of a final decision by filing a written request
for reconsideration with the hearing examiner within five business days of the date of the final written decision.
The request shall comply with JCC 18.40.330(5)(b). The hearing examiner shall consider the request without
public comment or argument by the party filing the request, and shall issue a decision within 10 working days of
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the request. If the request is denied, the previous action shall become final. If the request is granted, the
hearing examiner may immediately revise and reissue his/her decision or may call for argument in accordance
with the procedures for closed record appeals. Reconsideration should be granted only when an obvious legal
error has occurred or a material factual issue has been overlooked that would change the previous decision.
18.40.32000 Final decision.
(1) Finality. All administrative interpretations made pursuant to Article VI of this chapter and Type II and III
project permit decisions under this code shall be final unless appealed pursuant to Article V of this chapter.
(2) Finding and Conclusions. Each final decision of the hearing examiner and, in the case of certain Type V
decisions, as more fully set forth in Chapter 18.45 JCC, the board of county commissioners shall be in writing
and shall include findings and conclusions based on the record.
(3) Notice of Final Decision.
(a) Except for those permits exempted under JCC 18.40.080, upon issuance of the final decision, the
administrator shall provide a notice of decision that includes a statement of all determinations made
under SEPA and the procedures for administrative appeal, if any, of the permit decision. The notice of
decision may be a copy of the report or decision on the project permit application. It shall also state that
affected property owners may request a change in valuation for property tax purposes notwithstanding
any program of revaluation fully set forth in RCW 36.70B.130.
(b) A copy of the notice of decision shall be mailed, emailed, or hand delivered to the applicant, any
person who, prior to the rendering of the decision, requested notice of the decision, and to all persons
who submitted substantive written comments on the application. The notice of decision shall be provided
to the Jefferson County assessor.
(4) Timing of Notice of Final Decision. The final decision on a development proposal shall should be made
within 120 calendar days from the date of the determination of completeness unless:
(a) Certain days are excluded from the time calculation pursuant to subsection (5) of this section;
(b) The application involves a shoreline permit application for limited utility extensions
(RCW 90.58.140(13)(b)) or construction of a bulkhead or other measures to protect a single-family
residence and its appurtenant structures from shoreline erosion. In those cases, the decision to grant or
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deny the permit shall be issued within 21 calendar days of the last day of the comment period specified
in JCC 18.40.220(2);
(c) The application involves a preliminary long plat application under Article IV of Chapter 18.35 JCC. In
such cases, the application shall be approved, disapproved, or returned to the applicant for modification
or correction within 90 days from the date of the determination of completeness; or
(d) The application involves a final short plat application under Article III of Chapter 18.35 JCC, or a final
long plat application under Article IV of Chapter 18.35 JCC. In such cases, the application shall be
approved, disapproved or returned to the applicant within 30 days from the date of the determination of
completeness.; or
(e) The administrator makes written findings that a specific amount of additional time is needed to
process the project permit or application, consistent with JCC 18.40.310 (Expiration of Applications).
(5) Calculation of Time Periods for Issuance of Notice of Final Decision. In determining the number of calendar
days that have elapsed since the determination of completeness, the following periods shall be excluded:
(a) Any period during which the applicant has been requested by the county to correct plans, perform
studies, or provide additional information. The period shall be calculated as set forth in
JCC 18.40.110(6)(b).
(b) If substantial project revisions are made or requested by an applicant, the 120 calendar days will be
calculated from the time the county determines the revised application is complete and issues a new
determination of completeness.
(c) All time required for the preparation of an environmental impact statement (EIS) following a
determination of significance (DS) pursuant to Chapter 43.21C RCW.
(d) Any period for open record appeals of project permits under JCC 18.40.330; provided, however, that
the time period for the hearing and decision shall not exceed a total of 90 calendar days.
(e) Any extension of time mutually agreed upon by the county and the applicant.
(f) Any time required for the preparation of an administrator’s code interpretation pursuant to Article VI of
this chapter.
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(6) The time limits established in this chapter do not apply if a project permit application:
(a) Requires an amendment of the Jefferson County Comprehensive Plan or this Unified Development
Code; or
(b) Requires approval of the siting of an essential public facility as provided in RCW 36.70A.200.
(7) Notice to Applicant. If the county is unable to issue its final decision on a project permit application within
the time limits provided for in this chapter, 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.
(8) Effective Date. The final decision of the administrator, hearing examiner, or board of county commissioners
shall be effective on the date stated in the decision, motion, resolution or ordinance; provided, however, that
the appeal periods shall be calculated from the date of the decision, as further provided in
JCC 18.40.330 and 18.40.340.
18.40.310 Expiration of Applications (New)
(1) A land use application shall be null and void if the applicant fails to submit the requested additional
information under JCC 18.40.110, within 180 days from the Department's request or within a time period
as specified by the Hearing Examiner. Applications pending as of October 1, 2019 shall have 180 days to
provide the requested additional information prior to expiring under this section. Land use applications
expired under this section shall forfeit all application fees.
(2) The Administrator may grant one or more 60-day extension(s) of time for land use applications other
than final plats that:
(a) Have made substantial progress in obtaining required approvals and have minor approvals
remaining;
(b) Have submitted written proof demonstrating a path for obtaining all remaining approvals within
the 60-day extension; or,
(c) Demonstrate other written justifiable cause to the Administrator.
(3) The Administrator may review a land use application(s) and make any necessary corrections to the
application(s) expiration date caused by inaccurate and/or missed data entries. Documentation of such
corrections shall be made part of the file's written record.
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(4) The Administrator may grant one or more 180-day extension(s) of time for final plat applications that:
(a) Have made substantial progress in obtaining required approvals and have minor approvals
remaining;
(b) Have submitted written proof demonstrating a path for obtaining all remaining approvals within
the 180-day extension; or,
(c) Demonstrate other written justifiable cause to the Administrator.
18.40.320 Vesting of Applications (New)
(1) Purpose. The purpose of this section is to provide for vesting of land use applications and permits
under Title 18 JCC, consistent with state law. A complete application, under JCC 18.40.110, is vested
pursuant to this section to the regulations applicable to the application until the permit is issued or the
application is abandoned, expired, withdrawn, or denied.
(2) Applicability.
(a) This section applies to complete land use applications under Title 18 JCC, complete applications
for building permits (RCW 19.27.095(1)), complete applications for the proposed division of land
(RCW 58.17.033(1)), complete applications for development agreements (RCW 36.70B.180), and
any other complete applications for a project type determined to be subject to the vested rights
doctrine by the Washington legislature or in a published decision after 1987 by a Washington
Court of Appeals or the Washington Supreme Court.
(b) This section does not vest applications to development regulations required by federal or state
law that are subject to final approval by a federal or state agency, including but not limited to
applications for permits under the Shoreline Master Program, Chapter 18.25 JCC or Flood
Damage Prevention, Chapter 15.15 JCC.
(c) This section does not apply to issued permits or approvals.
(3) Vesting of Applications.
(a) A complete application under JCC 18.40.110 shall vest consistent with applicability of this section
and state law.
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(b) A complete application subject to vesting pursuant to this section shall be subject to all
development regulations in effect on the vesting date.
(c) A complete application is vested for the specific use, density, and physical development that is
identified in the application submittal, consistent with state law.
(d) The applicant is responsible for monitoring the time limitations and review deadlines for the
application. The County shall not be responsible for maintaining a valid application. If the
application expires, a new application may be filed with the Department, but shall be subject to
the development regulations in effect on the date of the new application is complete.
(e) Substantial revisions to applications which increase the specific uses, density, or physical
development are subject to vesting at the time of the major or substantial revision. Substantial
revisions shall be considered a new application consistent with JCC 18.40.110(7).
(4) Waiver of Vesting. An applicant may voluntarily waive vested rights at any time during the processing
of an application by delivering a written and signed waiver to the Administrator stating that the applicant
agrees to comply with all development regulations in effect on the date of delivery of the waiver and any
subsequent modifications to development regulations until permit issuance or approval.
18.40.325 Suspension, Revocation, or Modification of Permits (New)
(1) The hearing examiner may suspend, revoke, or modify a Type I, II, or III land use permit or approval
after a notice of non-compliance to the affected parties, a recommendation from the Administrator, a
public hearing consistent with the Hearing Examiner Rules of Procedure, and with written findings when:
(a) Decision, approval, or permit was obtained by fraud, misrepresentation, or clear inadvertent
error;
(b) Use for which such decision, approval, or permit was granted is not being exercised within
three years of approval, unless the decision, approval, or permit provides for a greater period of
time;
(c) Use for which decision, approval, or permit was granted ceased to exist or has been
suspended for three years or more;
(d) Decision, approval, or permit is being, or recently has been exercised contrary to the terms or
conditions of such decision, approval, or permit or is in violation of any local or state law or
regulation; or,
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(e) Use for which decision, approval, or permit was granted was so exercised as to be detrimental
to the public health or safety, or so as to constitute a public nuisance.
Article V. Appeals
18.40.330 Administrative appeals.
In the absence of a specific right of appeal authorized under this UDC, there shall be no right to administrative
appeals.
(1) Type I Permits. Decisions of the Administrator on Type I permits and decisions regarding the appropriate
permit process to be used for discretionary conditional use permit applications (i.e., “C(d)” uses listed in Table
3-1 in JCC 18.15.040) under JCC 18.40.520, are not appealable to the hearing examiner. However,
administrative code interpretations may be appealed as set forth in Article VI of this chapter.
(2) Type II Permits.
(a) The administrator’s final decision on a Type II permit application may be appealed by a party of
record to the hearing examiner for an open record appeal hearing as further set forth in JCC 18.40.280.
The responsible official’s SEPA determination of nonsignificance (DNS) or mitigated determination of
nonsignificance (MDNS) may also be appealed by a party of record to the hearing examiner for an open
record appeal hearing. Administrative appeals of a DS or draft or final EIS are not allowed.
(b) All appeals of Type II permit decisions must be in writing, conform with the procedures for appeal set
forth in Chapter 2.30 JCC and the Hearing Examiner subsection (5) of this section, and be filed within 14
calendar days after the notice of decision is issued. Appeals of environmental determinations under
SEPA, except for a determination of significance (DS), shall be consolidated with any open record
hearing on the project permit. (See RCW 36.70B.110(6)(d)).
(3) Type III Permits. SEPA Decisions.
(a) The responsible official’s DNS or MDNS may be appealed to the hearing examiner by the applicant
or anyone commenting on the environmental impacts of the proposal (as further set forth in
JCC 18.40.780). The appeal must be in writing, in conformance with subsection (5) of this section, and
be filed within 14 calendar days after the threshold determination is issued as set forth in subsection (4)
of this section. Appeals of environmental determinations under SEPA shall be consolidated with any
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open record hearing on the project permit. (See RCW 36.70B.110(6)(d)). Administrative appeals of a DS
or draft or final EIS are not allowed.
(4) Calculation of Appeal Periods. The appeal periods shall be calculated as of the date the notice of decision is
published or, for appeals involving a SEPA determination, from the date the decision is issued pursuant to
WAC 197-11-340(2)(d).
(5) Procedure for Appeals.
(a) A notice of appeal shall be delivered to the administrator by mail or by personal delivery, and must be
received by 4:00 p.m. on the last business day of the appeal period, with the required appeal fee
pursuant to the Jefferson County fee ordinance.
(b) The notice of appeal shall contain a concise statement identifying:
(i) The decision being appealed and the identification of the application which is the subject of the
appeal;
(ii) The name, address, and phone number of the appellant and his/her interest in the matter;
(iii) Appellant’s statement describing standing to appeal (i.e., how he or she is affected by or
interested in the decision);
(iv) The specific reasons why the appellant believes the decision to be wrong. The appellant shall
bear the burden of proving the decision was wrong;
(v) The desired outcome or changes to the decision; and
(vi) A statement that the appellant has read the appeal and believes the contents to be true, signed
by the appellant.
(c) Any notice of appeal not in full compliance with this section shall not be considered.
18.40.390 Appeals of administrator’s interpretations.
When an interpretation is made in response to a written request pursuant to the provisions of this article, the
person filing the written request may appeal the decision of the administrator to the hearing examiner within 14
calendar days of the decision using the process for appeals of Type II permit decisions as set forth in
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JCC 18.40.330, Chapter 2.30 JCC, and the Hearing Examiner Rules of Procedure. The fee for such appeal
shall be as set forth in the Jefferson County fee ordinance and must be paid by the appellant at the time of filing
the appeal.
Article X. State Environmental Policy Act (SEPA) Implementation
18.40.810 Appeals.
(1) Appeal of a Threshold Determination for a Type I Permit Decision. Threshold determinations on Type I
permit decisions may not be appealed administratively to the hearing examiner.
(2) Appeal of a Threshold Determination for Type II Permits – Open Record Hearing. The decision of the
responsible official on Type II permits making a threshold determination of a DNS or MDNS, approving a
proposal subject to conditions, or denying a proposal under SEPA’s substantive authority may be appealed to
the hearing examiner pursuant to JCC 18.40.280, Chapter 2.30 JCC, and the Hearing Examiner Rules of
Procedure for an open record appeal hearing. Any such appeal must be filed within the time limits of
JCC 18.40.330(2)(b), and must be consolidated with any appeal on the underlying Type II permit decision. Any
requests for reconsideration shall be governed by JCC 18.40.310.
(3) Appeal of a Threshold Determination for Type III Permits – Open Record Hearing. The decision of the
responsible official on Type III permits making a threshold determination of a DNS, approving a proposal
subject to conditions, or denying a project under SEPA’s substantive authority may be appealed to the hearing
examiner pursuant to JCC 18.40.280, Chapter 2.30 JCC, and the Hearing Examiner Rules of Procedure. The
open record public hearing on the SEPA appeal shall be before the hearing examiner, who shall consider the
appeal together with the decision on the project application in a single, consolidated hearing as further set forth
in Article IV of this chapter. Any requests for reconsideration shall be governed by JCC 18.40.310.
(4) Appeals of Threshold Determinations for Type V Actions. Threshold determinations of the responsible
official on Type V decisions (other than a DS) may not be appealed to the hearing examiner.
(5) Limitations on Appeals for All Types of Permits. When a threshold determination results in a DS it shall not
be appealable. In addition, issues relating to the adequacy of the EIS and other procedural issues may not be
appealed under this article.
(6) Who May Appeal. An applicant or other party of record, as defined in Chapter 18.10 JCC, may file a SEPA
appeal as provided in this article.
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(7) Time to Appeal Administrative Decisions. A written statement appealing the threshold determination must
be filed within 14 calendar days after the notice of decision is issued. When the last calendar day (as defined in
Chapter 18.10 JCC) of the appeal period is a Saturday, Sunday or legal holiday, the appeal period shall run to
the next business day.
(8) Form of Appeal. A person or group appealing the decision of the responsible official shall submit a written
appeal in the form and manner set forth in JCC 18.40.330(5) Chapter 2.30 JCC and the Hearing Examiner’s
Rules of Procedure. Notice of all appeals shall be mailed to all parties of record not less than 10 calendar days
prior to the date of the public hearing to consider the appeal.
(9) Scope of Review. The hearing examiner shall affirm, modify or reverse the responsible official’s decision,
and shall enter findings and/or conclusions into the record to support the decision. In making the decision, the
hearing examiner shall give deference to and afford substantial weight to the decision of the responsible
official. Review shall be on a de novo basis.
(10) Judicial Appeals. Pursuant to RCW 43.21C.075, if there is a time period for appealing the underlying
permit decision, appeals under this article shall be commenced within such time period. The county shall give
official notice stating the date and place for commencing an appeal.
(a) Optional Limitation Period. If there is no time period for appealing the underlying government action,
the county, applicant for or proponent of an action may use a notice of action pursuant to
RCW 43.21C.075 and 43.21C.080. The notice shall describe the action and state time limitations for
commencing a challenge to that action, in a form substantially similar to that provided in WAC 197-11-
990. The notice shall be published by the department, applicant or proponent pursuant to
RCW 43.21C.080, and any action to set aside, enjoin, review or otherwise challenge any such
governmental action shall be commenced within 21 days from the date of the last newspaper publication
of the notice of action, as further set forth in RCW 43.21C.080.
(b) Exemption. This article does not apply to decisions made pursuant to Chapter 90.58 RCW, the
Shoreline Management Act. Appeals of SEPA mitigation measures pertaining to projects subject to
Chapter 90.58 RCW shall be made to the shoreline hearings board along with the appeal of the county’s
shoreline decision, as further set forth in Chapter 90.58 RCW. In addition, as an alternative dispute
resolution process, any SEPA appeal, whether involving a shoreline issue or not, may be made to the
shoreline hearings board upon the consent of the parties to the action, as further set forth in
RCW 43.21C.075(7).
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(11) Violations and Penalties. The administrator is authorized to enforce the provisions of this article whenever
he or she determines that a condition exists in violation of this article or permit issued hereunder. All violations
of any provisions of this article, incorporated standard or permit issued pursuant to this article are made subject
to the provisions of Chapter 18.50 JCC, which provides for voluntary correction, notice and orders to correct the
violation, stop work and emergency orders, and assessment of civil penalties.
(12) Public Nuisance. All violations of this article are determined to be detrimental to the public health, safety
and welfare and are public nuisances, and may corrected by any reasonable and lawful means, as further set
forth in Chapter 18.50 8.90 JCC.
(13) Alternative Remedies. As an alternative to any other judicial or administrative remedy provided in this
article or by law or ordinance, any person who willfully or knowingly violates or fails to comply with any stop
work order or emergency order issued pursuant to Chapter 18.50 JCC is guilty of a misdemeanor and upon
conviction shall be punished as set forth in JCC 18.50.110. Each day such violation or failure to comply
continues shall be considered an additional misdemeanor offense. \[Ord. 8-06 § 1\]
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