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Home My WebLink About2019 09 10 Staff Report Staff Report Proposed Draft Hearing Examiner Code, Hearing Examiner Rules of Procedure, and Amendments to the Jefferson County Code Prosecuting Attorney’s Office Philip C. Hunsucker, Chief Civil DPA Austin Watkins, Civil DPA September 10, 2019 Page 2 of 5 I. INTRODUCTION The Jefferson County Prosecuting Attorney’s Office (PAO) presents a proposed draft ordinance and appendices to update the Hearing Examiner Code, Hearing Examiner Rules of Procedure, and amendments to the Jefferson County Code (JCC). The PAO seeks public input on the proposed draft ordinance during the October 7, 2019 public hearing before the Board of County Commissioners. The proposed ordinance transitions the Hearing Examiner Code and Rules of Procedure from Title 18 JCC (Unified Development Code) to Title 2 JCC (Administration and Personnel). The proposed 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 ordinance being presented. The proposed amendments to Tile 18 JCC (Unified Development Code) are procedural in nature and are not development regulations. 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. The proposed draft ordinance accomplishes many objectives, including increasing transparency and procedural due process, expressly authorizing new subject matters previously codified, such as the authorization to hear appeals under the Nuisance Ordinance, and more generally establishes the Hearing Examiner as a cross-departmental tool. The proposed Hearing Examiner Rules of Procedure contain the of the substantive rules relating to conducting business with the hearing examiner. The Rules of Procedures were designed to provide citizens, applicants, and other hearing examiner users with one consolidated document guiding them through the hearing examiner system. II. ANALYSIS Need for Draft Ordinance First, the current Hearing Examiner Code and Rules of Procedure reside in Title 18 JCC (Unified Development Code), even though the Hearing Examiner is authorized to hear non-land Page 3 of 5 use matters, such as road vacations and appeals under the Nuisance Ordinance. Second, the current system does not reflect the cross-departmental nature of the Hearing Examiner, as key provisions relating the non-land use hearings are not currently adopted. Third, the current code and Rules of Procedure lack key provisions, such as reconsideration and hearing procedures. The proposed draft ordinance updates the Hearing Examiner Code and Rules of Procedure, fixing the identified issues and greatly increasing the transparency, understandability, and due process of the hearing examiner system. The draft ordinance was designed to: (1) increase procedural due process in the hearing examiner system; (2) provide the hearing examiner with the tools to fairly adjudicate both land use and non-land use matters; (3) increase the transparency of the hearing examiner system; and, (4) reduce the need for parties to obtain attorneys. Overview of Appendix A (Draft Hearing Examiner Code) o Replaces current code with a hearing examiner code in Title 2 (Administration and Personnel) JCC; o Proposed draft code provides key authorizations for the hearing examiner, including express authorization for the hearing examiner’s adjudication of non-land use matters; and, o Authorizes and adopts initial Hearing Examiner Rules of Procedure. Overview of Appendix B (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, providing citizens and applicants with increased transparency and due process; o Provides consistent hearing rules for all hearing participants in one centralized document; and, o May be amended or updated by the Hearing Examiner upon notification of the proposed rule to the Board of County Commissioners. The Board of County Commissioner may reject or modify the rule within 30-days of the notice of the proposed rule. o Overview of Proposed chapters of the Rules of Procedure ▪ Rule 1 - General Requirements • Jurisdiction of the hearing examiner, computation of time, service, etc. ▪ Rule 2 – Scheduling, Noticing, and Agendas of Hearings • General scheduling rules, continuations, hearing agendas, etc. ▪ Rule 3 – Pre-Hearing Procedures • Notice of appeal, pre-hearing conference, pre-hearing motions, discovery, etc. ▪ Rule 4 – Record Page 4 of 5 • Overview and content of the official record and requirements for departmental staff reports. ▪ Rule 5 – Hearing Procedures • Rights and responsibilities of the parties, presence of legal counsel, evidentiary standards, default, process for hearings, process for special hearings, etc. ▪ Rule 6 – Post-Hearing Procedures • Examiner’s decision, re-opening a hearing, correcting clerical mistakes, vacating a default, reconsideration, clarification, appeals, etc. ▪ Rule 7 – Withdrawal of Application, Petition, or Appeal • Procedure to withdraw and effect of withdrawal. Overview of Appendix C (Proposed Amendments to the Jefferson County Code) o Repeals current hearing examiner code and rules of procedure, located in Chapter 18.05 JCC (replaced in proposed Chapter 2.30 JCC and Hearing Examiner Rules of Procedure); 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 12.10 JCC (Road Vacations) to the proposed draft hearing examiner code and rules of procedure by updating roles and responsibilities of the Department of Community Development; 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. III. CONCLUSION The proposed draft hearing examiner increases the transparency and procedural due process of the current hearing examiner system while meeting other drafting requirements, such as transitioning the hearing examiner to a cross departmental tool. The PAO and Board of County Commissioners seeks timely public input on the draft proposed ordinance and appendices. The public comment period is open from Wednesday, September 10, 2019 until the close of the public hearing on Monday, October 7, 2019, unless extended by the Board of County Commissioners. Written testimony may be timely submitted to Page 5 of 5 the Board of County Commissioners at jeffbocc@co.jefferson.wa.us or P.O. Box 1220, Port Townsend, WA 98368. The text of the proposed draft ordinance and appendices may be viewed on-line at http://test.co.jefferson.wa.us/WebLinkExternal/0/fol/2092626/Row1.aspx or in-person at the Jefferson County Board of County Commissioner’s Office located at 1820 Jefferson Street, Port Townsend, WA 98368. Attachments: 1. Proposed Draft Ordinance 2. Proposed Draft Appendix A, Hearing Examiner Code 3. Proposed Draft Appendix B, Hearing Examiner Rules of Procedure 4. Proposed Draft Appendix C, Jefferson County Code Amendments (strike through for deletions and underlines for additions)