HomeMy WebLinkAbout2019 09 10 Rules of Procedure App B DRAFT
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APPENDIX B
JEFFERSON COUNTY HEARING EXAMINER RULES OF PROCEDURE
9/10/2019
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
4.3 Availability of the Record and Timing Requirements for Record Submissions ........... 13
RULE 5 HEARING PROCEDURES ....................................................................................... 14
5.1 Rights of Parties of Record ............................................................................................ 14
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 ................................................................................... 15
5.6 Parties of Record ............................................................................................................ 15
5.7 Presence of Legal Counsel at Hearings ......................................................................... 16
5.8 Oath or Affirmation ....................................................................................................... 16
5.9 Hearing Conducted as an Open Record Hearing, Unless a Special Hearing ................. 16
5.10 Special Hearings ............................................................................................................ 17
5.11 General Process of an Open Record Hearing ................................................................ 17
5.12 General Process of Special Hearings ............................................................................. 17
5.13 Default............................................................................................................................ 18
5.14 Evidence ......................................................................................................................... 18
5.15 Recording of Hearings ................................................................................................... 20
RULE 6 POST-HEARING PROCEDURES ............................................................................ 20
6.1 Examiner’s Decision ...................................................................................................... 20
6.2 Re-Opening a Hearing ................................................................................................... 21
6.3 Clerical Mistakes ........................................................................................................... 22
6.4 Setting Aside and Vacating a Default Order.................................................................. 22
6.5 Reconsideration.............................................................................................................. 22
6.6 Clarification ................................................................................................................... 23
6.7 Appeals of Decisions ..................................................................................................... 23
RULE 7 WITHDRAWAL OF APPLICATION, PETITION, OR APPEAL ........................... 24
7.1 Procedure to Withdraw .................................................................................................. 24
7.2 Effect of Withdrawal...................................................................................................... 24
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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, on the entire record
the examiner is left with the firm and definite conviction that a mistake has been
committed.
(e) “De novo standard of review” means that the examiner 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
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 Procedure 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
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concerning the merits of that or a related hearing. Any communication submitted
in this manner shall 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 a 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 the examiner
should be disqualified 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 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.
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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.
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 served concurrently on the 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
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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
hearings if the volume of hearings, reconsiderations, or clarifications exceeds the
examiner’s 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 or the examiner may grant on their own initiative a
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
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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.
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 the request is granted, a
notice to the principal parties shall be given.
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(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
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,
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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.
3.4 Subpoenas
(a) Authority. As authorized in JCC 2.30.080(4), 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, or in appeals of an administrative
interpretation made under Article VI of Chapter 18.40 JCC. Subpoenas only
may 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. A declaration of personal
service by mailing USPS 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 and/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
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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
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 pursuant to Rule 3.4 or 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 includes, 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;
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(i) Recordings made on electronic equipment; and,
(j) An environmental determination made under the SEPA or environmental impact
statement (if applicable).
4.2 Departmental Reports
Departments shall prepare reports for cases under review by the examiner. Departmental
reports shall be made publicly available at least 14 days prior to a Hearing or Special
Hearing. Departmental reports include, but are 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 (if applicable);
vii. Include issues of concern expressed by the lead department, 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;
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)).
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i. Summarize the nature of the case before the examiner;
ii. List the provisions of the JCC that have been allegedly violated (if
applicable);
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.
4.3 Availability of the Record and Timing Requirements for Record Submissions
The record shall be made publicly available. The record shall be made available
electronically to the extent feasible. 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.
All forms of written authority including briefs, staff reports, and other memoranda upon
which a party of record will be relying or presenting at the hearing must be 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,
must be submitted in writing at least 5 days in advance of the scheduled hearing. The
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documents submitted may be entered into the record by the examiner’s office and the
examiner’s office may update the Exhibit List. Newly added record documents shall be
made publicly available.
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
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
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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;
(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 email 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(19).
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(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
email 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 written briefs, staff reports, and other legal
memoranda upon which a party of record will be relying or presenting at the hearing
must be 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, must be submitted in writing at least 5 days in advance of the
scheduled hearing. The documents submitted may be entered into the record by the
examiner’s office and the examiner’s office may update the Exhibit List. Newly added
record documents 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 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
2.30.090(2).
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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 a principal party;
(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;
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(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 principal 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,
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.
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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 or 5 shall be entered into the
record without action by the examiner. Pre-filed exhibits or the record may be
challenged on admissibility grounds with a pre-hearing motion under Rule 3.4(a)
or at the hearing with an oral or written motion.
(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 respond 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,
laws of Washington administrative boards, such as the growth management
hearings board, laws of other states, and decisions from the examiner.
(h) Updated Exhibit List. The examiner’s office shall be responsible for updating the
initial exhibit list prepared and transmitted by the department to include
additional material received prior to the hearing, 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
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proof is by a preponderance of the evidence and the burden is on the moving
party.
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. If documents are admitted after the closure of the hearing, the
examiner’s office shall update the exhibit list.
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,
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.
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(b) When applicable, 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. 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.
(d) For road vacations under Chapter 12.10 JCC, the examiner may recommend
approval, approval with conditions, or denial to the board of county
commissioners.
(e) The examiner may attach 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.
(f) 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.
(g) The examiner shall transmit a copy of each decision to the department. The
examiner’s office 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,
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.
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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, principal 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 may not be sought for the examiner’s recommendations to the
board of county commissioners. 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.
(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
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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 may not be sought for examiner’s
recommendations to the board of county commissioners. 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.
6.7 Appeals of Decisions
The examiner's decision on all matters, excluding recommendations to the board of
county commissioners, 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
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Use Petition Act) or Chapter 7.16 RCW (Certiorari, Mandamus, and Prohibition), 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 (Shoreline Management Act) 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 transmitted to
parties of record. 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 transmitted to parties of record. 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
decision a final agency action. Withdrawals are without prejudice, unless otherwise
ordered with prejudice.