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JEFFERSON COUNTY
IN THE MATTER OF AN ORDINANCE
ADO PTIN G PR OCED URAL RULES FOR
HEARIN GS BEFORE THE JEFFERSON
COUNTY HEARING EXAMINER(S)
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Ordinance #
01-0203-03
WHEREAS, there has been a perceived need in Jefferson County to enact and
codify procedural rules that would govern the process during a hearing or appeal before
this County's Hearing Examiner or Appellate Hearing Examiner; and
WHEREAS, prior to January 16,2001 Jefferson County had in place procedural
Ordinances that governed hearings or appeals before the County's Hearing Examiner,
including, but not limited to, the "Land Use Procedures Ordinance" (also known as
Ordinance #04-0828-98), the "Hearing Examiner Ordinance" (also known as Ordinance
#01-0318-91) and "Procedures & Criteria to Clarify Land Use Regulations Ordinance
(also known as Ordinance #05-0828-98); and
WHEREAS, all of the Ordinances listed above were repealed as part of the
adoption of the Unified Development Code (or "UDC") via Ordinance #11-1218-00, thus
leaving the County without any procedural rules for the process during a hearing or
appeal; and
WHEREAS, the UDC, specifically UDC §1.3.6(e)(4), authorizes the Hearing
Examiner and/or the Appellate Hearing Examiner to "prescribe rules and regulations
concerning procedures for hearings authorized herein, subject to confirmation by the
Board of Commissioners;" and
WHEREAS, legal counsel for the Board of County Commissioners has discussed
the language of this Ordinance in some detail with Irv Berteig, the person most often
asked to serve as this County's Hearing Examiner; and
WHEREAS, Mr. Berteig has offered suggestions to improve the language of this
Ordinance and can approve and recommend its adoption to the Board of County
Commissioners; and
WHEREAS, this Ordinance has been disseminated to staff members of the
County's Departments of Public Works and Community Development and then discussed
with those affected staff members on September 10, 2002 for additional comments and
questions and the Ordinance has been revised, in part, to reflect those concerns and
comments; and
Ordinance for Jefferson County Hearing Examiner
Page 1
ORDINANCE NO. 01-0203-03
WHEREAS, legal counsel for the Board of County Commissioners has prepared
and approved of those sections of this Ordinance which may have legal implications, for
example, sections on 'standing,' 'evidence' and' appearance of fairness'; and
WHEREAS, this Ordinance will promote fairness in the process of hearings and
appeals before the County's Hearing Examiners and should promote efficient use of the
County's resources, i.e., its Hearings Examiners; and
WHEREAS, the County Commissioners have authority to enact and adopt this
Ordinance pursuant to the general police powers provided to them by Article XI, Section
11 of the Washington State Constitution and RCW 36.32.120(7).
NOw, THEREFORE, BE IT ORDAINED as follows:
Section 1: Conflicts amon2 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
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.
Section 2: Definitions:
The following definitions apply for the purposes of this ordinance:
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 3) ajudgment 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.
BoCC: The Jefferson County Board of County Commissioners, the County Legislature
for the municipal corporation known as Jefferson County or any subsequently created or
approved legislative body for Jefferson County.
Comprehensive Plan: The 1998 Jefferson County Comprehensive Plan and Land
Use Map as now adopted and as may be amended in the future.
Ordinance for Jefferson County Hearing Examiner
Page 2
ORDINANCE NO. 01-0203-03
Ex Parte Communication: 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.
Hearing Examiner: The Hearing Examiner or the Appellate Hearing Examiner.
Hearing: An Open Record predecision hearing before a Hearing Examiner or a
closed record hearing before an Appellate Hearing Examiner. By way of example only,
the term 'hearing' includes appeals based upon the UDC, the State Environmental
Protection Act (or "SEP A") and road vacation requests directed to and handled by the
County's Department of Public Works.
Interested Citizen: Any person or entity that has
a) 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 appeal Hearing, or
b) made comments (written, oral or otherwise) during an Open Record
predecision hearing.
Party: 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 Ordinance 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
Ordinance.
Timely submissions: Written submissions to the Hearing Examiner shall be considered
timely if the submission if sent to the Hearing Examiner (via paper or electronically)
seven days before the date of the hearing. Written submissions to the Appellate Hearing
Examiner shall be considered timely if the submission is sent to the Appellate 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.
UDC: 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.
Ordinance for Jefferson County Hearing Examiner
Page 3
ORDINANCE NO. 01-0203-03
Section 3: Standin2:
Only an 'aggrieved person,' as that term is defined in this Ordinance, 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.
Section 4: Powers of the Hearin2 Examiner:
The Hearing Examiner shall have the following powers:
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 tenn is defined in this
Ordinance 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 them 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 below. 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.
Ordinance for Jefferson County Hearing Examiner
Page 4
ORDINANCE NO. 01-0203-03
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.
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 Ordinance], 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 ten days' written notice of the time, date and place
for the reopened hearing in the official newspaper for Jefferson County and ten
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 Ordinance.
k) To set a time and date when the public comment period for a particular matter
before the Hearing Examiner closes or ceases.
1) 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 (7) 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.
Section 5: Disqualification or Recusal of Hearin!! 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 Ordinance] 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.
Ordinance for Jefferson County Hearing Examiner
Page 5
ORDINANCE NO. 01-0203-03
If the Hearing Examiner believes that his or her relationship to the 'parties' [as that term
is defined in this Ordinance] 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 2) 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 Ordinance] in the present or another hearing, or has considered and ruled
upon the same or similar issue in the same or similar context.
Section 6: Evidence
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.
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.
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 therefore.
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 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.
Ordinance for Jefferson County Hearing Examiner
Page 6
ORDINANCE NO. 01-0203-03
Section 7: Recordin2 the Hearin2
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.
Section 8: Obtainin2 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.
Section 9: Testimony
All testimony before the Hearing Examiner shall be taken under oath.
Section 10: Ri2hts of Parties:
Every party (as that term is defined in this Ordinance) 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.
Section 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 Ordinance, 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
Ordinance, with respect to a particular petition or application which has been designated
for an 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.
Ordinance for Jefferson County Hearing Examiner
Page 7
ORDINANCE NO. 01-0203-03
Section 12: Severability
In the event anyone or more of the sections of this Ordinance shall for any reason be held
to be invalid, then such invalidity shall not affect or invalidate any other provisions of
this Ordinance, but instead this Ordinance shall be construed and enforced as if such
invalid provision had not been contained therein.
Section 13: SEP A
This ordinance is categorically exempt from SEP A, per WAC 197-11-800 (20). The
adoption of this ordinance relates solely to governmental procedures and contains no
substantive standards respecting use or modification of the environment.
Section 14: Effective Date
This Ordinance shall be effective upon adoption.
Approved and adopted this .3 ~ day of'::/. ," /~{tCîL
,2003.
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JEFFERSON CO' TY
BOARD OF COMMISSINERS
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Dan Titterness, Chair
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Ordinance for Jefferson County Hearing Examiner
Page 8
PENINSULA DAILY NEWS
Affidavit of ~ublication
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In the Superior Court of! the State of Washington f!o,t:.:::Clall.amIJ$f!fer!:ôo('ï
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I NOTICE OF PUBUC HEARING
NOTICE IS HEREBY GIVEN that a public hearing is sched-
I uled by the Jeffersen Ceunty Beard of Cemmissioner to be
I held Menday, February 3, 2003 at 10:30 a.m. in the Com-
missioners Chamber, Lower Level, County Courthouse,
, 182Q)efferson Street (PO Box 1220), Port Tewnsend, WA
. -- ~~~., 98368.
I This public hearing is scheduled fer the Cemmissieners te
, takecemments fer and. against the prepesed .ordinance
establishing Procedural rules fer the Hearing Examiners as
I sum!"'1arized belew. Any person wishing to cemment on
-"this preposed ordinance may provide verbal cemments at
I the abeve, scheduled public hearing .or submit written com-
I ments te the Jefferson Ceunty Beård of Commissioners at
,the abeve' .address. Fer further ihfonn¡¡tien on, .or ques~
I ' tions aþoutthe proposed erdihånce, contact the Jeffersen
I ~7CöÛhtyDepartment .of Cemmunity Develepment at (360)
. 379-4450. Fer ~a copy .of the cemplete text of: the pro-
I ,pesed. ordinanc,e, centact the Jeffersen Ceunty Cemmis-
1 sieners Office at 360-385-9100.
I . JEFFERS()NCOUNTY BOARD OF COMMISSIONERS
I ~'\s\Dan Tittê~~e_s_s:_~~~i!_- - - - - - - - -- - - ---0-
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I In the Matter of an Ordinance Adepting Procedural Rule!!
..._'--,". for Hearings Befere the Jefferson Ceunty Hearing Examin- ~-
'er(s) .. :
11 In . the Matter of an Ordinance Adepting Procedural Rules
:for Hearings Before the Jefferson County Hearing Examin-
----_!~- at__:>_a i d ~ OT'p orat i ~n is th e own~!'_-~_'i:!.?_)::<':l~-~!!:;-~~!'_---'-J~~~IÎ<;n1:conAicts among autherities ----
of' the Pen1nsula Dally News publlshed 1n Section 2: Definitiens
~'lalla J.Je.c,.c,e"-'c: n r'O'lnt1'es -nd had been -p'"\"-'oved I Sectien3:Standing-
..... m ~ r r . -' 0 ........ 'd d y' : Sectien 4: Pewers .of the Hearing Examiner
as a legal newspaper by order of the Superior I .sect!en5: Di~qualificationorRefusalefHearingExaminer
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COUT't of sald ClallamJJerfeT'$.on County of' the I Section 7: RecordingtheHearing
r.ta te Of' Wa sh 1. ngt,.., n :Sect~on 8:... Obtélining C.oPies
0 ...< I. : Section 9: Testimony
That the annexed is a tT'ue copy of a legal I ¡Sect!on10:F¡igþtsofParties:
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:!.nSeT'tlon aE, 1t was publlshed ln regular :!.ssues I iedy)
(and not in supplement f'oT'm) of' said newspaper I !~:~~:~gÌ~!~~ÞÄabiJity
UJB s T'e1}ul-al'-1y d i ~ t-'f'-i-b-ut-e-è-~~it s subs c r i beT's ---- ~~tiørt44'.1õffeetive.Hate---,-. --
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during all of said peY'iod. The publishing date I . ., .
cited is the last day Or publication. I
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,.JEFF CO. COMMISSJLEGAL
PO BOX 1220
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REFERENCE: 4900354
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The undersigned being riT'st duly sworn on oath,
deposes and says:
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Please publish 1 time: January 19,2003
Bill to Jefferson County Commissioners Office
1820 Jefferson PO Box 1220
Port Townsend, W A 98368
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN that a public hearing is scheduled by the Jefferson County
Board of Commissioner to be held Monday, February 3,2003 at 10:30 a.m. in the
Commissioners Chamber, Lower Level, County Courthouse, 1820 Jefferson Street (PO Box
1220), Port Townsend, W A 98368.
This public hearing is scheduled for the Commissioners to take comments for and against the
proposed ordinance establishing procedural rules for the Hearing Examiners as summarized
below. Any person wishing to comment on this proposed ordinance may provide verbal
comments at the above scheduled public hearing or submit written comments to the Jefferson
County Board of Commissioners at the above address. For further infonnation on, or questions
about the proposed ordinance, contact the Jefferson County Department of Community
Development at (360) 379-4450. For a copy of the complete text of the proposed ordinance,
contact the Jefferson County Commissioners Office at 360-385-9100.
Dan Titterness, Chair
JEFFERSON COUNTY BOARD OF'COMMISSIONERS
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In the Matter of an Ordinance Adopting Procedural Rules for Hearings Before the
Jefferson County Hearing Examiner(s)
Section 1: Conflicts among authorities
Section 2: Definitions
Section 3: Standing
Section 4: Powers of the Hearing Examiner
Section 5: Disqualification or Recusal of Hearing Examiner
Section 6: Evidence
Section 7: Recording the Hearing
Section 8: Obtaining Copies
Section 9: Testimony
Section 10: Rights of Parties
Section 11: Ex Parte Communications Prohibited (and Remedy)
Section 12: Severability
Section 13: SEP A
Section 14: Effective Date
Approved as to form only:
I ) IS )03