Ordinance 09-023 Amending Hearing Examiner Rules CITY OF SPOKANE VALLEY
SPOKANE COUNTY,WASHINGTON
ORDINANCE NO.09-023
AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY,
WASHINGTON AMENDING ORDINANCE 07-015 SPOKANE VALLEY MUNICIPAL CODE
SECTIONS 18.20, 18.20.020,AND APPENDIX B AND ADDING NEW SECTIONS 18.20.030,040,
050, AND 060, CONCERNING THE HEARING EXAMINER APPOINTMENT, POWERS AND
DUTIES, REMOVAL, EX PARTE COMMUNICATIONS AND CONFLICTS OF INTEREST
AND THE HEARING EXAMINER SCHEDULING RULES AND RULES OF CONDUCT.
WHEREAS, on June 9, 2009, the City Council, by motion, sent the revised Hearing Examiner rules of
procedure to the Planning Commission for review and recommendations;and
WHEREAS,the Planning Commission met, held a public hearing on August 13, 2009, and forwarded to
Council their recommendation that the proposed Hearing Examiner Ordinance changes and rules of
procedure be adopted;and
WHEREAS, this matter was scheduled for a first reading on the 15th of September, 2009, and second
and final reading on the 22nd of September,2009; and
WHEREAS, this amendment is consistent with the Spokane Valley Comprehensive Plan; and bears a
substantial relationship to the public health, safety and welfare and protection of the environment.
NOW,THEREFORE,THE CITY COUNCIL SPECIFICALLY ORDAINS AS SET FORTH BELOW:
Section One: SVMC chapter 18.20 shall be amended as follows:
Chapter 18.20
HEARING EXAMINER
Sections:
18.20.010 Authority.
18.20.020 Appointment
18.20.030 Powers and Duties
18.20.040 Removal
18.20.050 Ex Parte Communications
18.20.060 Conflict of Interest.
18.20.010 Authority.
The hearing examiner system is established in accordance with the provisions of RCW 35A.63.170,
36.70B.120(3)and Chapter 58.17 RCW et seq.(Ord. 07-015 § 4, 2007).
18.20.020 Appointment.
A. The hearing examiner is appointed by the city manager with regard only for qualifications for the
duties of the office. The city manager alternatively may contract for hearing examiner services or may
appoint one or more hearing examiners pro tem. .
B. The qualifications for the office of hearing examiner include a license to practice law in the state
of Washington, expertise in land use law and planning and the training and experience necessary to
conduct administrative or quasi-judicial hearings and to issue decisions and recommendations on land use
planning and regulatory matters.
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18.20.030 Powers and Duties.
A.The hearing Examiner shall be under the administrative supervision of the City Manager.
B. The hearing examiner shall have the following powers and duties:
1. Annually provide a written report to the city manager, city council and director of the
community development department that states the number and type of hearings conducted and decisions
issued during the past year, the outcome of such decisions, recommendations for improving the hearing
examiner system, and pertinent observations and recommendations regarding land use policies and
development regulations.
2. Upon request, meet with the city manager, city council or director of community development
department to discuss the written report.
3. Receive and examine available information, make site visits, take official notice of matters,
conduct public hearings, prepare a record thereof,and enter findings,decisions or recommendations.
4. As a part of the conduct of public hearings the hearing examiner shall have the authority to:
a.Conduct pre-hearing conferences;
b. Require the submittal of information;
c. Schedule and continue hearings;
d. Rule on all evidentiary and procedural matters, including motions and objections
appropriate to the proceedings;
e.Receive evidence and cause preparation of the record;
f. Regulate the course of hearings and the conduct of the parties and their agents;
g. maintain order during the hearing process;
h. render decisions and issue written findings and conclusions;
i. include in a decision the conditions of approval necessary to ensure that the application
complies with the applicable criteria for its approval; and
j. Revoke any approval for failure to comply with the conditions imposed by the hearing
examiner where specifically authorized by the UDC or state law.
5.The hearing examiner shall hear the following matters:
a. Applications for variances;
b.Conditional use permits;
c. Special use permits;
d. Conditional use permits and variances under the shoreline master program;
e. Preliminary plats;
f. Appeals from any administrative decision of the department of community development or
the building official in the administration or enforcement of the Spokane Valley uniform development
code or other land use code or regulation;
g. Appeals on State Environmental Policy Act(SEPA)determinations;
h. Site-specific zone changes of property, including any environmental determination (under
SEPA);
i.Planned unit developments, including any environmental determination(under SEPA);and
j. Any other applications or appeals that the city council may refer by motion or ordinance,
specifically declaring that the decision of the hearing examiner can be appealed to the city council.
6. All hearings before the hearing examiner shall be scheduled and conducted in the manner set
forth in Appendix B.
7. Appeals of any decision of the hearing examiner shall be as is set forth in Chapter 17.90
SVMC.(Ord. 07-015 § 4,2007).
18.20.040 Removal
The hearing examiner or hearing examiner pro-tem may be removed by the city manager without
cause; or, if serving under a contract,according to the terms or upon its expiration.
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18.20.050 Ex Parte Communications
A. No person may communicate ex parte, directly or indirectly, with the hearing examiner. The
hearing examiner may not communicate exp arte with opponents or proponents of any application unless
the hearing examiner make the substance of such communication part of the public record and provides
the opportunity for any party to rebut the substance of such communication as provided by law. The
hearing examiner may reopen the hearing record prior to a final decision to address such matters.
B. This section does not prohibit ex parte communication regarding procedural matters,
communication by the hearing examiner with his/her staff or the city attorney's office, communication by
the examiner for the sole purpose of conveying information regarding the specifics of an application, or
communication by the examiner with county departments for the purpose of obtaining information or
clarification, so long as the information or clarification received by the examiner is made part of the
record.
18.20.060 Conflict of Interest
The hearing examiner may not participate in a public hearing or decision-making process where such
participation would constitute a conflict of interest, pursuant to chapter 42.23 RCW. Similarly, they may
not participate in a public hearing or decision-making process where such participation would violate the
appearance of fairness doctrine, set forth in chapter 42.36 RCW, unless the parties to such hearing or
decision consent to or waive their right to object to such participation.
Section Two: Appendix B shall be amended as follows:
Appendix B
Hearing Examiner Scheduling Rules and Rules of Conduct
A. Scheduling of Hearings.
B.Notice of Hearing—Effect of Notice.
C. Staff Reports on Applications.
D. Site Inspections.
E.Presentation of Evidence
F.Reopening or Continuing Hearings
G. Dismissal of Application
H.Record of Hearing
I. Decision
J. Reconsideration,Clerical Errors
A. Scheduling of Hearings.
1. The department, in coordination with the hearing examiner, shall prepare an official agenda
indicating the dates and times that matters will be heard. The official agenda shall comply with all time
limits set forth in RCW 36.70B.110.
2. When practical, minor applications, such as a variance or matters that take less time, shall be
heard at the beginning of the day's agenda.
3. The hearing examiner may consolidate applications involving the same or related properties for
hearing.
B.Notice of Hearing—Effect of Notice.
1. Each public notice required for the hearing of an application shall conform to applicable statutory
and ordinance requirements. The notice should contain a statement that the hearing will be conducted in
the manner set forth in Appendix B.
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3. A person is deemed to have received notice if the person appears at the hearing, or submits
written comments on the merits of the application, and the person fails to object to the lack of notice
promptly after the person obtains actual knowledge of the hearing date.
4 Disqualification.If required notice is not given and actual notice is not received, the hearing
examiner may reschedule the hearing or keep the record open on the matter to receive additional
evidence.
C. Staff Reports on Applications.
1 .The department shall coordinate and assemble the comments and recommendations of other City
departments and commenting agencies, and shall make a written staff report to the hearing examiner on
all applications.
2. At least seven calendar days prior to the date of the scheduled public hearing,the staff report shall
be filed with the office of the hearing examiner and mailed by first class mail or provided to the applicant.
At such time,the department shall also make the report available for public inspection. Upon request, the
department shall provide or mail a copy of the report to any requesting person for the cost of reproduction
and mailing.
3. If the staff report is not timely filed or furnished, the hearing examiner may at his/her discretion
continue the hearing,considering the prejudice to any party and the circumstances of the case.
4. The hearing examiner may make recommendations to the department on the format and content
of staff reports submitted to the hearing examiner.
D. Site Inspections.
1. The hearing examiner may make site inspections, which may occur at any time after the staff
report on an application has been filed with the hearing examiner and before the examiner renders a final
decision.The hearing examiner need not give notice of the intention to make an inspection.
2 The inspection and the information obtained from it shall not be construed as new evidence or
evidence outside the record. If an inspection reveals new and unanticipated information, the hearing
examiner may, upon notice to all parties of record, request written response to such information or reopen
the hearing to consider the information.
E.Presentation of Evidence
1. The format of the public hearing shall be organized so that the testimony and written evidence
can be presented quickly and efficiently. The format will generally be as follows:
a. a brief introduction of the matter by the hearing examiner;
b. a report by division staff including introduction of the official file on the application and
its procedural history, an explanation of the application, including the use of visual aids, and the
recommendation of the division on the application;
c. the submittal of testimony and documents by the party with the burden of proof at the
hearing,typically the applicant on an initial application or the appellant in the case of an appeal; followed
by persons in support of such party's position;
d. the submittal of testimony and documents by opposing parties;
e. rebuttal;
f. questions and clarifications;
g. closure of the hearing;
h. closure of the record and continuation of the matter for final decision.
2. All reasonably probative evidence is admissible by the hearing examiner. The hearing examiner may
exclude all evidence that is irrelevant, immaterial or unduly repetitious. The judicial rules of evidence are
not strictly applied, but may be used by the examiner for guidance. The hearing examiner shall accord
such weight to the evidence as he/she deems appropriate.
3. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by
reference, at the hearing examiner's discretion. The examiner may require that the original of a document
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be produced. A party submitting documentary material at the hearing should make copies available at the
hearing for review by the opposing party.
4. The hearing examiner may take official notice of judicially cognizable facts; federal, state and
local laws, ordinances or regulations; the County's Comprehensive Plan and other adopted plans or
policies of the county; and general, technical and scientific facts within the examiner's specialized
knowledge; so long as any noticed facts are included in the record and referenced or are apparent in the
examiner's final decision.
5. The hearing examiner may require that testimony be given under oath or affirmation. All
testimony taken by the hearing examiner in an appeal under section 11.10.170 of the Spokane County
Code shall be under oath.
6. The hearing examiner may allow the cross-examination of witnesses. The hearing examiner is
authorized to call witnesses and request written evidence in order to obtain the information necessary to
make a decision. The hearing examiner may also request written information from or the appearance of a
representative from any county department having an interest in or impacting an application.
7. The hearing examiner may impose reasonable limitations on the number of witnesses to be heard
and the nature and length of their testimony to avoid repetitious testimony, expedite the hearing or avoid
continuation of the hearing.
8. The hearing examiner may cause the removal of any person who is being disruptive to the
proceedings, or continue the proceedings if order cannot be maintained. The examiner shall first issue a
warning if practicable.
9. No testimony or oral statement regarding the substance or merits of an application is allowable
after the close of the public hearing. No documentary material submitted after the close of hearing will be
considered by the hearing examiner unless the examiner has left the record open for the submittal of such
material and all parties are given an additional time to review and rebut such material.
F. Reopening or Continuing Hearings
1. The hearing examiner may reopen or continue a hearing to take additional testimony or evidence,
or other compelling cause, provided a final decision has not been entered.
2. If the hearing examiner announces the time and place of the continued hearing on the record
before the hearing is closed, no further notice is required. If the hearing is reopened after the close of the
hearing, all parties must be given at least five days noticed of the date, time, place and nature of the
reopened hearing.
3. Motions by a party for continuous or to reopen a hearing must state the reasons therefore and be
made as soon as reasonably possible. The motion must be submitted in writing unless made at the
hearing. The hearing examiner may continue or reopen a hearing on his/her own motion, citing the
reasons therefore.
4. If the decision of the hearing examiner rests upon issues of fact or law not raised by either party
at time of hearing, the examiner shall continue and/or reopen the hearing to a later date to allow the
parties an opportunity to comment and/or present evidence on those issues of fact or law.
G. Dismissal of Application
1. The hearing examiner shall conduct the public hearing based on the completed application. If the
hearing examiner deems that the application has been substantially changed since it was deemed
complete, the examiner shall dismiss the application without prejudice and direct that a new application
be submitted by the applicant and appropriate fees paid therefore. If the hearing examiner determined
that the proposal has been changed but not substantially, the examiner may continue the hearing to give
reviewing agencies an opportunity to review the changes made and make recommendations deemed to be
necessary under applicable rules and regulations.
2. The hearing examiner may dismiss an application pursuant to a request by the applicant to withdraw
an application, or for failure to the applicant to attend required hearings or provide requested information.
If the applicant notified the division of building and planning in writing of the desire to withdraw an
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application prior to notice of hearing being mailed to the persons entitled thereto, the dismissal shall be
allowed without prejudice, and noted in the application file. If the request for withdrawal of an
application is received after such notice being mailed and before a final decision is rendered, the
application shall be dismissed with prejudice with the same effect as a denial of the application on the
merits, in that the same or similar application cannot be considered by the hearing examiner for a one year
period commencing with the date the initial application was deemed complete.
H. Record of Hearing
1. The hearing examiner shall establish and maintain a record of all proceedings and hearings
conducted by the examiner, including an electronic recording capable of being accurately transcribed and
reproduced. Copies of the recording and any written portions of the record shall be made available to the
public on request for the cost of reproduction or transcription,as determined by the chief examiner.
2. The record shall include,but is not limited to:
a. the application;
b. department staff reports;
c. all evidence received or considered by the hearing examiner;
d. the final written decision of the hearing examiner;
e. affidavits of notice for the hearing;
f. the environmental determination regarding the application;
g. the electronic recordings of the hearings and proceedings by the hearing examiner; and
h. the departmental file for the application, if incorporated into the record by the examiner.
3. The hearing examiner may authorize a party to have the proceedings reported by a court reporter
and have a stenographic transcription made at the party's expense. The hearing examiner may also cause
the proceedings to be reported by a court reporter and transcribed.
4. The hearing examiner shall have custody of the hearing record and shall maintain such record
until the period for appeal of the examiner's final decision has expired or the record is transmitted to court
or the board of county commissioners pursuant to an appeal of the examiner's final decision.
I. Decision
1. The decision of the hearing examiner shall be in writing; include findings and conclusions based
on the record to support the decision, set forth the manner in which the decision would carry out the
Comprehensive Plan and the development regulations in the UDC, and include the contents specified in
SVMC 17.80.130(3).
2. The hearing examiner shall render a final decision within ten (10) working days following the
conclusion of all testimony and hearings, unless a longer time period is mutually agreed to in writing by
the applicant and the Examiner.
3. Notice of the decision shall be provided pursuant to SVMC 17.80.130(4).
J. Reconsideration,Clerical Errors
1. Any aggrieved party of record may file a written petition for reconsideration with the hearing
examiner within 10 calendar days following the date of the hearing examiner's written decision. The
petitioner for reconsideration shall mail or otherwise provide a copy of the petition for reconsideration to
all parties of record on the date of filing. The timely filing of a petition for reconsideration shall stay the
hearing examiner's decision until such time as the petition has been disposed of in writing by the hearing
examiner.
2. The grounds for seeking reconsideration shall be limited to the following:
a. The hearing examiner exceeded the hearing examiner's jurisdiction;
b. The hearing examiner failed to follow the applicable procedure in reaching the hearing
examiner's decision;
c. The hearing examiner committed an error of law;
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a. The hearing examiner exceeded the hearing examiner's jurisdiction;
b. The hearing examiner failed to follow the applicable procedure in reaching the hearing
examiner's decision;
c. The hearing examiner committed an error of law;
d. The hearing examiner's findings, conclusions and/or conditions are not supported by the
record;
e. New evidence which could not reasonably have been produced and which is material to
the decision is discovered;or
f. The applicant proposed changes to the application in response to deficiencies identified in
the decision.
3. The petition for reconsideration must:
a. Contain the name, mailing address, and daytime telephone number of the petitioner, or
the petitioner's representative, together with the signature of the petitioner or of the petitioner's
representative;
b. Identify the specific findings, conclusions, actions, and/or conditions for which
reconsideration is requested;
c. State the specific grounds upon which relief is requested;
d. Describe the specific relief requested; and
e. Where applicable, identify the specific nature of any newly discovered evidence or
changes proposed.
4. The petition for reconsideration shall be decided by the same hearing examiner who rendered the
decision, if reasonably available. The hearing examiner shall provide notice of the decision on
reconsideration in accordance with SCC 30.72.062. Within 14 days the hearing examiner shall:
a. Deny the petition in writing;
b. Grant the petition and issue an amended decision in accordance with the provisions of
SCC 30.72.060 following reconsideration;
c. Accept the petition and give notice to all parties of record of the opportunity to submit
written comment. Parties of record shall have 10 calendar days from the date of such notice in which to
submit written comments. The hearing examiner shall either issue a decision in accordance with the
provisions of SCC 30.72.060 or issue an order within 15 days after the close of the comment period
setting the matter for further hearing. If further hearing is ordered,the hearing examiner's office shall mail
notice not less than 15 days prior to the hearing date to all parties of record;or
d. Accept the petition and set the matter for further open record hearing to consider new
evidence, proposed changes in the application and/or the arguments of the parties. Notice of such further
hearing shall be mailed by the hearing examiner's office not less than 15 days prior to the hearing date to
all parties of record. The hearing examiner shall issue a decision following the further hearing in
accordance with the provisions of SCC 30.72.060.
5. A decision which has been subjected to the reconsideration process shall not again be subject to
reconsideration; provided that a decision which has been revised on reconsideration from any form of
denial to any form of approval with preconditions and/or conditions shall be subject to reconsideration.
6. The hearing examiner may consolidate for action, in whole or in part, multiple petitions for
reconsideration of the same decision where such consolidation would facilitate procedural efficiency.
7. Clerical mistakes and errors arising from oversight or omission in hearing examiner decisions
may be corrected by the hearing examiner at any time either on the examiner's 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 mailed to all parties of record. This shall not extend the appeal period fro the decision.
Section Three: Compliance with RCW 36.70A.106. This amendment has been provided to the
Washington State Department of Commerce pursuant to RCW 36.70A.106 on the 1 S` day of October,
2009.
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Section Four: The adoption of this amendment is necessary to protect the health, safety and welfare of
the general public and the environment.
Section five: Severability. If any section, sentence,clause or phrases of this Ordinance should be held to
be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality
shall not affect the validity or constitutionality of any other section,clause or phrase of this Ordinance.
Section Six: Effective Date: This Ordinance shall be in full force and effect five (5) days after
publication of this Ordinance, or a summary thereof occurs in the official newspaper of the City as
provided by law.
Passed by the City Council this 22nd day of September,2009.
I �
ichard M. Munson,Mayor
41 -"ristme Bainbrid_e, ity Clerk
Approved as to Form:
die
Office.a the City Attorney
Date of Publication: /0 ——"*.37)
Effective Date: Jd — 9-
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