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HomeMy WebLinkAbout2019 09 10 Hearing Examiner Code App A DRAFT Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 1 of 13 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 Hearing Examiner Rules of Procedure. 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. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 2 of 13 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(18); 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. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 3 of 13 (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 or makes a recommendation to the board of county commissioners. (10) “Hearing Examiner Rules of Procedure” means the public rules adopted pursuant to JCC 2.30.070. (11) “JCC” means the Jefferson County Code as it exists now or may be amended. (12) “Land use hearings” includes the hearings enumerated in JCC 2.30.080(2)(a). (13) “May” means optional and permissive, and does not impose a requirement. (14) “Non-land use hearings” includes the hearings enumerated in JCC 2.30.080(2)(b) and JCC 2.30.080(3). (15) “Official record” means the written and oral information, exhibits, reports, testimony, and other evidence submitted in a timely manner and accepted by the examiner, consistent with the Hearing Examiner Rules of Procedure. (16) “Open record hearing” means a hearing, conducted by a single hearing body or officer that creates the official record through testimony and submission of evidence and information, under procedures prescribed by ordinance or resolution. An open record hearing may be Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 4 of 13 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. (17) “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” include 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(19). (18) “Person” means person as that term is defined in RCW 1.16.080. (19) “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. (20) “Special Hearing” means a hearing, conducted by a single hearing body or officer that creates the official record through testimony and submission of evidence and information, under procedures prescribed by ordinance or resolution. 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. (21) “RCW” means the Revised Code of Washington as it exists now or may be amended. (22) “Shall” means mandatory and imposes a requirement. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 5 of 13 (23) “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 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. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 6 of 13 2.30.070 Hearing Examiner Rules of Procedure. (1) Initial Hearing Examiner Rules of Procedure. Initial Hearing Examiner Rules of Procedure shall be adopted by the board of county commissioners with Chapter 2.30 JCC. (2) Amendment of Hearing Examiner Rules of Procedure. The examiner is delegated authority to amend the Hearing Examiner Rules of Procedure pursuant to this section. Within 5 days after adoption or amendment of any Hearing Examiner Rule of Procedure, 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 Hearing Examiner Rules of Procedure or amendment shall remain in effect unless rejected or modified by a motion of the board of county commissioners within 30 days of transmission to the clerk of the board of county commissioners. 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 evidence, conduct hearings, cause preparation of the official record, prepare and enter findings of fact and conclusions of law, and issue final decisions for: Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 7 of 13 (a) Land Use Hearings: (i). 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, except for 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. (b) Non-Land Use Hearings. (i). Operating permits for a new commercial shooting facility under Article III of Chapter 8.50 JCC (Commercial Shooting Facilities); (ii). Appeal of an administrative decision regarding operating permits for existing commercial shooting facilities under Article III of Chapter 8.50 JCC (Commercial Shooting Facilities); (iii). Administrative appeals under Chapter 8.90 JCC (Public Nuisances); (iv). Hearings for vehicle nuisances under Chapter 8.90 JCC (Public Nuisances); (v). Appeal of an administrative decision regarding sexually oriented business licenses under Chapter 5.10 JCC (Licensing and Operation of Sexually Oriented Business Facilities); Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 8 of 13 (vi). 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, (vii). Any other non-land use proceeding not prohibited by law assigned by the board of county commissioners through an ordinance. (3) The examiner shall receive and examine available relevant information, including environmental documents, conduct hearings, cause preparation of the official record, prepare and enter findings of fact and conclusions of law, and issue recommendations to the board of county commissioners for road vacations under Chapter 12.10 JCC (non- land use hearing). (4) 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. 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: Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 9 of 13 (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); (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; and, (vi). Hearings to determine compliance with examiner’s conditions or permit criteria under Chapter 2.30 JCC. (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. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 10 of 13 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. 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 facts 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) When applicable, 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 Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 11 of 13 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. The examiner may deny the requested permit or decision 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) For road vacations under Chapter 12.10 JCC, the examiner may recommend approval, approval with conditions, or denial to the board of county commissioners. (5) 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. (6) The examiner has the authority to impose conditions that have a nexus to the county’s interest and are roughly proportional to the impacts of the notice, order, permit, decision, determination, or other action being considered by the examiner. 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. For the avoidance of doubt, examiner recommendations to the board of county commissioners pursuant to JCC 2.30.120(4) are not final decisions and, therefore, are not appealable under this section. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 12 of 13 (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, after 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 or the director has authorized an allowable extension of time; (c) Use for which decision, approval, or permit was granted ceased to exist or has been suspended for three years or more, unless the director has authorized an allowable extension of time; (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. Draft: 9/10/2019 V6 Proposed Chapter 2.30 JCC Page 13 of 13 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.