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HomeMy WebLinkAbout3765 Ordinance ORDINANCE NO.3 7 6 AN ORDINANCE of the City of Pasco, Washington, Creating Chapter 2.19 Entitled "Hearing Examiner" Expanding and Relocating the Provisions for the Office of Hearing Examiner; Adopting Chapter 25.84 Entitled "Land Use Hearings by Examiner"; and Amending Section 23.07.070 "Appeals" WHEREAS, the City of Pasco has pursuant to RCW 35A.63.170, adopted a hearing examiner system for the hearing of land use applications; and WHEREAS, the City has a need, and historically has used the hearing examiner for the hearing of appeals of administrative decisions or determinations of such additional areas as animal control, vehicle impoundment decisions and criminal forfeiture proceedings; and WHEREAS, the present provisions for the hearing examiner are located within the zoning code(PMC Title 25); and WHEREAS, it would be beneficial to relocate the provisions in regard to the hearing examiner to the administrative portions of the Municipal Code and to clarify the authorization of the hearing examiner to hear appeals of additional administrative decisions, the provisions for the hearing examiner should be moved from the zoning code to the general administration portions of the Municipal Code, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO HEREBY ORDAIN AS FOLLOWS: Section 1. That a new Chapter 2.19 entitled "Hearing Examiner" of the Pasco Municipal Code shall be and hereby is enacted and shall read as follows: CHAPTER 2.19 HEARING EXAMINER Sections 2.19.010 Purpose. 2.19.020 Creation of Hearing Examiner 2.19.030 Appointment and Terms. 2.19.040 Qualifications. 2.19.050 Freedom from Improper Influence. 2.19.060 Conflict of Interest. 2.19.070 Rules. 2.19.080 Powers. 2.19.090 Public Hearing. 2.19.100 Examiner's Decision. Ordinance-1 2.19.110 Notice of Examiner's Decision. 2.19.120 Appeal from Examiner's Decision. 2.19.010 PURPOSE. The purpose of this Chapter is to establish a hearing examiner system for the application of land use regulatory controls, appeal of administrative determinations and decisions and including those administrative decisions and determinations made pursuant to Chapter 43.21C RCW (SEPA), animal code appeals, vehicle and personal property forfeiture hearings, vehicle impoundment hearings, and such other determinations and appeals as be required by the City and permitted by law. This system is adopted to: A) Insure procedural due process and appearance of fairness in administrative and regulatory hearings. B) Provide an efficient and effective decision making and appellate system which integrates the public hearing and decision-making process. 2.19.020 CREATION OF HEARING EXAMINER. The office of Pasco Hearing Examiner, hereinafter referred to as "examiner" is hereby created. The examiner or examiners shall interpret, review, and render decisions on land use regulations, conduct hearings thereon; hear and determine appeals of administrative decisions and determinations, including appeals of administrative decisions or determinations pursuant to 43.21C RCW (SEPA); animal code appeals, vehicle and personal property forfeiture hearings, vehicle impoundment hearings, and such other determinations and appeals as be required by the City and permitted by law, or imposed by other ordinances of the City of Pasco. 2.19.030 APPOINTMENT AND TERMS. The City Manager may appoint one or more examiners for renewable terms of one (1) year; however, said appointment may be terminated by either party upon sixty (60) days advanced notice. Such appointments may be made by professional service contract. Examiners may also be contracted to serve on an as- needed basis. 2.19.040 QUALIFICATIONS. Examiners shall be appointed solely with regard to their qualifications for the duties of their office and will have such training and experience as will qualify them to conduct administrative or quasi-judicial hearings on regulatory enactments and to discharge the other functions conferred upon them. Examiners shall hold no other elective or appointed office or position in the City of Pasco. 2.19.050 FREEDOM FROM IMPROPER INFLUENCE. No person shall attempt to influence an examiner in any manner pending before him/her except publicly at a public hearing duly called for such purpose, or to interfere with an examiner in the performance of his/her duties in any other way; PROVIDED, that this Section shall not prohibit the City Attorney from rendering legal services to the examiner. 2.19.060 CONFLICT OF INTEREST. No examiner shall conduct or participate in any open record hearing, decision or recommendation in which the examiner has a direct or Ordinance-2 indirect substantial financial or family interest, or concern in which the examiner has had substantial prehearing contacts with proponents or opponents wherein the issues were discussed. This is not intended to prohibit necessary or proper inquiries on matters such as scheduling, but any such contacts are to be entered into the official record of the hearing. Whenever possible, such inquiries and the responses to such inquiries shall be in writing. 2.19.070 RULES. The examiner shall have the power to prescribe rules for the scheduling and conduct of hearings and other procedural matters related to the duties of his office. Such rules shall provide for rebuttal, and may authorize the examiner to limit the time allowed to parties testifying on an equal basis, and time limits on rebutting. Any person desiring to question other parties testifying at the hearing shall direct such questions to the examiner, who shall rule on whether or not such questions are to be answered and who shall answer them. 2.19.080 POWERS. The examiner shall receive and examine available information, conduct public hearings and prepare a record thereof, and enter decisions as provided for herein. The examiner, subject to the appropriate conditions and safeguards as provided by the Pasco Municipal Code, shall hear and decide: A) Land use decisions including variances, review of administrative actions, waiver of violations, extension of use on border of district, and administrative exceptions as provided in PMC 25.84.020. B) Administrative Decisions. Appeals of administrative decisions or determinations may be heard by the examiner as directed by the City Manager, City Council or by Ordinance. C) SEPA Appeals. Appeals of administrative decisions and determinations made pursuant to Chapter 43.21C RCW may be heard by the examiner. D) Vehicle Impounds. The examiner shall conduct vehicle impound hearings as provided in PMC Chapter 10.18. E) Criminal Seizure and Forfeiture Hearings. The examiner may, as designee of the Chief Law Enforcement Officer of the City of Pasco, conduct seizure and forfeiture hearings as provided in RCW 10.105.010. F) Animal Code - - Wild, Potentially Dangerous or Dangerous Animals. The examiner shall hear the appeal of any owner of an animal determined by the Poundmaster to be a dangerous or potentially dangerous animal as provided in Chapter 8.02 of the Pasco Municipal Code. G) Other Powers. In the performance of duties prescribed by this Chapter or other ordinances, examiners may: 1) Administer oaths and affirmations, examine witnesses, rule upon offers of proof, receive relevant evidence, and conduct discovery procedures which may include Ordinance-3 propounding interrogatories and taking oral depositions pursuant to Washington State Court Rules; PROVIDED, that no person shall be compelled to divulge information which he could not be compelled to divulge in a court of law. 2) Upon the request of any other party, or upon his own volition, issue, and cause to be served subpoenas to the attendance of witnesses and for production of examination of any books, records, or other information in the possession or under the control of any witness; PROVIDED,that such subpoenas shall state the name and address of the witness sought, and if for production of books, documents or things, shall specifically identify the same and the relevance thereof to the issues involved. 3) Regulate the course of the hearing in accordance with this and other applicable ordinances. 4) Hold conferences for the settlement or simplification of the issues by consent of the parties. 5) Dispose of procedural requests or similar matters. 6) Take any other action authorized by ordinance. In case of failure or refusal without lawful excuse of any person duly subpoenaed to attend pursuant to said subpoena, or to be sworn, or to answer any material and proper question, or to produce upon reasonable notice any material of proper books or records or other information in his possession and under his control, the examiner may invoke the aid of the City Attorney who shall apply to the appropriate court for an order or other court action necessary to secure enforcement of the subpoena. 7) The examiner is hereby empowered to act in lieu of the Board of Adjustment, and such officials, boards or commissions as may be assigned. Wherever existing ordinances, codes or policies authorize or direct the Board of Adjustment, or other officials, boards or commissions to undertake certain activities which the examiner has been assigned, such ordinances, codes or policies shall be construed to refer to the examiner. 2.19.090 PUBLIC HEARING. Prior to rendering a decision, the examiner shall hold an open record public hearing thereon with proper notice according to the procedures for hearing notification as prescribed. Such notice shall include an invitation to any interested parties to submit information in writing in advance of the hearing if unable to be present at the hearing, and an invitation to review any information submitted during the seven (7) days preceding the hearing. The examiner presiding at the hearing shall admit and give probative affect to evidence which possesses probative value commonly accepted by reasonably prudent men in the conduct of their affairs and shall give affect to the rules of privilege recognized by law. All evidence including records and documents in the possession of the City which the examiner desires to consider shall Ordinance-4 be offered and made a part of the record. After all interested parties have had an opportunity to speak, in accordance with the examiner's rules for conducting a hearing,the examiner shall either close the hearing, continue the hearing to a specified date, or invite additional testimony restricted only to issues which, in the opinion of the examiner, there is need for additional testimony, and thereafter the hearing shall be closed or continued to a specified date. A continuing hearing to a specified date may be restricted to testimony or evidence on specific aspects of the case. No additional information may be submitted after the close of the hearing, unless, in the opinion of the examiner, additional opportunity for testimony is warranted. In such case, the hearing may be re-opened upon seven (7) days written notice to all parties who participated at the first hearing. Once legal notice has been given, no matter shall be postponed over the objection of any interested party, except for good cause shown. Continuances may be granted at the discretion of the examiner: PROVIDED, interested parties in attendance shall be given an opportunity to testify prior to the continuance. The applicant shall be given opportunity to testify prior to the continuance. The applicant shall pay an amount equal to one-half(1/2) the original application fee for any hearing postponed or continued by request of the applicants after legal notice has been given: PROVIDED, that this requirement shall not apply where the request is based upon new information presented at the hearing. 2.19.100 EXAMINER'S DECISION. The examiner shall render a written decision within ten (10) working days of the conclusion of a hearing, unless a longer period is agreed to in writing by the applicant. The decision shall include at least the following: A) Findings of Fact and Conclusions of Law based upon and supported by the record. B) A decision and/or order based upon the findings granting, conditionally granting, or denying the relief requested. C) A statement that the decision will become final in twenty-one (2 1) calendar days unless appealed to the Franklin County Superior Court, together with a description of the appeal procedure. 2.19.110 NOTICE OF EXAMINER'S DECISION. Not later than three (3) working days following the rendering of a written decision, copies thereof shall be mailed to the applicant and to the other parties of record in the case. "Parties of record" shall include the applicant and all other persons who specifically request notice of decision by signing a register provided for such purpose at the public hearing, or otherwise provide written request for such notice. 2.19.120 APPEAL FROM EXAMINER'S DECISION. Except for impound hearing decisions provided in PMC 10.18.045, where appeals shall be to the Pasco Municipal Court, all other decisions of the hearing examiner shall be final and conclusive unless a timely appeal thereof is filed with the Superior Court of Franklin County by an aggrieved party within twenty-one (21) calendar days from the date of issuance of the decision in the manner required by law. Ordinance-5 Section 2. That Section 23.07.070 entitled "Appeals" of the Pasco Municipal Code shall be and hereby is amended and shall read as follows: 23.07.070 APPEALS. (a) Except for permits and variances issued pursuant to RCW 90.58 (Shoreline Management Act), when any nonexempt action, not requiring a decision of the City Council, is conditioned or denied on the basis of SEPA by a nonelected official, the decision may be appealed to the Gity Cou il Hearing Examiner. (b) Such appeal may be perfected by the proponent or an aggrieved party by giving notice to the responsible official. Appeals on threshold determinations shall be filed within twenty-one (2 1) days or prior to the lapse of any comment period on a threshold determination under WAC 197-11-340(2). All other appeals shall be filed within twenty-one (21) days. (1) The appeal shall be filed in writing and shall contain the name and address of the person filing the appeal and the name of the organization or agency represented, if any. (2) The appeal shall set forth the specific reason, rationale, and/or basis for the appeal. (3) Payment of the appeal fee in the amount of$200.00 shall occur at the time the appeal is filed. (c) If the appeal has been timely filed and complies with the requirements of (b) above, the City Ceia ei Hearing Examiner shall conduct an open appeal hearing into the merits of the appeal at which time the City Counei' Hearing Examiner shall hear and receive testimony, documentary evidence, and arguments from the appellant(s) solely on the issues raised or identified by the appeal. (1) The person(s) filing the appeal shall have the burden of going forward with the evidence and the ultimate burden of persuasion. (2) Notice of any open appeal hearing held pursuant to this section shall be provided as specified in Section 22.88.015. (3) The Gity Gatuiefl Hearing Examiner may continue the open appeal hearing from time-to-time without fiirther mail or delivered notice. (4) The City G,,tmei' Hearing Examiner shall maintain an electronic record of the testimony and arguments presented and a record of any physical evidence/documents presented. Ordinance-6 (5) The City Couneil Hearing Examiner's decision shall be rendered within ten (10) working days of the conclusion of an open appeal hearing unless a longer period is agreed to by the appellant. This will be the effective.date of the decision. (6) The City Couneil Hearing Examiner's decision shall include findings of fact and conclusions in support of the decision. (7) The Git , r-oun il Hearing Examiner's decision under this section may be to grant or deny the appeal in whole or in part, or to remand the threshold determination to the responsible official for reconsideration. (8) Appeal hearings held by the Gity Couneil Hearing Examiner pursuant to this section shall be de nova. (9) The Q: y Couneil Hearing Examiner's decision shall become final unless appealed by an aggrieved party within twenty-one (21) working days from the effective date of the decision. (d) Appeal of the final decision of the City GouReil Hearing Examiner under this section shall be to the Superior Court of Franklin County. (Ord. 2886 Sec. 1 (part), 1992.) (e) SUBSTANTIAL WEIGHT ACCORDED RESPONSIBLE OFFICIAL. The procedural determinations may be the City's responsible official shall carry substantial weight in any appeal proceeding under this chapter. (f) RECORD. For any appeal to Superior Court under this chapter, the City shall provide for a record that shall consist of the following: (1) Findings and conclusions; (2) Testimony under oath; and (3) A taped or written transcript, the cost of which shall be borne by the appellant. (g) EXHAUSION OF REMEDIES. SEPA appeal procedures, as provided herein, must be utilized prior to judicial review of the SEPA decision. (Ord. 3297, Sec. 8, 1988; Ord. 2512 Sec. 1 (part), 1984.) Section 3. That Chapter 25.84 entitled "Hearing Examiner System" of the Pasco Municipal Code shall be and hereby is repealed in its entirety and replaced in its entirety as stated in Section 4 of this Ordinance below. Section 4. That a new Chapter 25.84 entitled "Land Use Hearings by Examiner" of the Pasco Municipal Code shall be and hereby is adopted and shall read as follows: Ordinance-7 CHAPTER 25.84 LAND USE HEARINGS BY EXAMINER Sections 25.84.010 Purpose. 25.84.020 Land Use Decision Authority. 25.84.030 Land Use Application 25.84.040 Report of Community Development Department for Land Use Application. 25.84,010 PURPOSE. The purpose of this Chapter is to establish a system of applying land use regulatory controls which will best satisfy the following basic needs: A) To assure procedural due process and appearance of fairness in certain land use regulatory hearings; and B) To provide an efficient and effective land use regulatory system, which integrates the public hearing and decision-making process for certain land use matters by adopting a hearing examiner system as provided by RCW 35.63.130 in accordance with Chapter 2.19 of this Code. 25.84.020 LAND USE DECISION AUTHORITY. The hearing examiner shall receive and examine available information, conduct public hearings, and prepare a record thereof, and enter findings of fact, conclusions and a decision as provided for herein. The hearing examiner shall hear and decide the following land use decisions: A) Variances. Applications for variances from the terms of this Title; PROVIDED, that any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privilege inconsistent with the limitations upon other properties in the vicinity and zoning which the subject property is situated, and that the following circumstances are found to apply: 1) Because of special circumstances applicable to the subject property, including size, shape, topography, location of surroundings, the strict application of the zoning ordinance is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification. 2) That the granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated. 3) The special circumstances applicable to the subject property were not created through the action(s) of the applicant or any predecessor in interest. Ordinance-8 B) Review- Administrative Action. Appeals may be heard by the examiner, where it is alleged by the applicant that there is error in any order, requirement, permit, decision or determination made by the City Planner in the administration or enforcement of this Title. Where the street or lot lay out actually on the ground, or as recorded, are different from the street and lot lines as shown on the zoning map, the examiner, after notice to the owners of the property, and after public hearings, shall interpret the map in such a way as to carry out the intent and purposes of this Title. In case of any questions as to the location of any boundary line between zoning districts, a request for interpretation of the zoning map may be made to the examiner, and a determination shall be made by the examiner. C) Waiver of Violations. Recognizing the fact that a building may be erected in good faith with every intent to comply with the provisions of this Title in respect to the location of the building upon the lot and the size and location of required yards, and that it may later be determined that such building does not comply in every detail with such requirements, although not violating the spirit or intent of the zoning ordinance, the examiner may issue a waiver of violation subject to such conditions as will safeguard the public health, safety, convenience and general welfare. D) Extension of Use on Border of District. The examiner may hear and approve the extension of a use or building into a more restricted zone classification immediately adjacent thereto, but not more than thirty (30) feet beyond the dividing line of the two (2) zone classifications, and under such conditions as will safeguard development in the more restricted district. E) Administrative Exceptions. An administrative exception not to exceed one (1) foot of any dimensional standard pertinent to front yard, side yard, rear yard, flanking street, and building line may be granted by administrative action of the examiner without public hearing and without posting or public notices. 25.84.030 LAND USE APPLICATION. Applications for permits or approvals within the jurisdiction of the hearing examiner shall be presented to the City Planner. The City Planner shall accept such applications only if applicable filing requirements are met. The City Planner shall be responsible for assigning a date for and assuring due notice of public hearing for each application, which date and notice shall be in accordance with the statute or ordinance governing the application. 25.84.040 REPORT OF COMMUNITY DEVELOPMENT DEPARTMENT FOR LAND USE APPLICATION. For any land use issue coming before the examiner, the Department of Community Development shall coordinate and assemble the reviews of other City Departments, governmental agencies, and other interested parties and shall prepare a report summarizing the factors involved and the department's finding and recommendations. At least seven(7) calendar days prior to the scheduled hearing, the report shall be filed with the examiner and copies thereof shall be mailed to the applicant and made available for public inspection. Copies thereof shall be provided to interested parties upon payment of reproduction costs. In the Ordinance-9 event that information to be provided by the applicant or other parties outside of City control has not been provided in sufficient time for filing seven (7) days in advance of the hearing, the Community Development Department may reschedule the hearing and notify interested parties. Section 5. This Ordinance shall take full force and effect five (5) days after its approval, passage and publication as required by law. PASSED by the City Council of the City of Pasco, Washington and approved as provided by law this 3 0-d' day of 2006. dI,t4'C'0— Joyce s n Mayor ATTEST: APPROVED AS TO FORM: Webster U. Jackson Le d B. Kerr City Clerk `ity Attorney i Ordinance- 10