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HomeMy WebLinkAbout2626 OrdinanceORDINANCE NO. 2626 AN ORDINANCE creating the position of hearing examiner, establishing procedures for appointment and removal, establishing general qualifications and duties, and procedures to be followed by the hearing examiner and parties appealing such decisions; and repealing and re-enacting Chapter 22.16 of the Pasco Municipal Code. WHEREAS, Upon recommendation of staff and after due consideration by the City Council, the City Council has determined that the Board of Adjustment established in Chapter 22.16 PMC should be replaced by a hearing examiner system, authorized by RCW 35A.63.170, and that the duties and responsibilities currently placed with the Board of Adjustment be placed with a hearing examiner system as set forth below; NOW, THEREFORE, The City Council of the City of Pasco, Washington, do ordain as follows: Section 1: Chapter 22.16 of the Pasco Municipal Code is hereby repealed in its entirety so as to abolish the Board of Adjustment and its jurisdiction, and re-enacted to provide for a hearing examiner system, as set forth below: CHAPTER 22.16 HEARING EXAMINER SYSTEM Sections: 22.16.010 Purpose. 22.16.020 Creation of Land Use Hearing Examiner. 22.16.030 Appointment and Terms. 22.16.040 Qualifications. 22.16.050 Removal. 22.16.060 Freedom from Improper Influence. 22.16.070 Conflict of Interests. 22.16.080 Rules. 22.16.090 Powers. Pr -1- 22.16.100 Applications. 22.16.110 Report of Community Development Department. 22.16.120 Public Hearing. 22.16.130 Examiner's Decision. 22.16.140 Notice of Examiner's Decision. 22.16.150 Appeal from Examiner's Decision. 22.16.160 City Council Consideration. 22.16.170 Appeal to Superior Court. 22.16.010 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: (1) To insure procedural due process and appearance of fairness in certain land use regulatory hearings, and (2) To provide an efficient and effective land use regulatory system which integrates the public hearing and decision-making process for certain land use matters. 22.16.020 CREATION OF LAND USE HEARING EXAMINER. The office of Pasco Municipal Land Use Hearing Examiner, hereinafter referred to as "examiner", is hereby created. The examiner shall interpret, review, and implement land use regulations and policies as provided in this Chapter or by other ordinances of the City of Pasco. 22.16.030 APPOINTMENT AND TERMS. The City Manager, may appoint one or more examiners for terms which shall initially expire one (1) year following the date of original appointment and thereafter expire four (4) years following the date of each re-appointment. Such appointments may be made by professional service contract. Examiners pro tem (i.e., substitute) may also be contracted for to serve in the event of absence or inability of the examiner to act. 22.16.040 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 -2- 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 of position in the City of Pasco. 22.16.050 REMOVAL. An examiner may be removed from office for cause by the City Manager. 22.16.060 FREEDOM FROM IMPROPER INFLUENCE. No person, shall attempt to influence an examiner in any manner pending before him, except publicly at a public hearing duly called for such purpose, or to interfere with an examiner in the performance of his duties in any other way; PROVIDED, that this Section shall not prohibit the City Attorney from rendering legal services to the examiner. 22.16.070 CONFLICT OF INTEREST. No examiner shall conduct or participate in any hearing, decision or recommendation in which the examiner has a direct or indirect substantial financial or family interest, or concerning which the examiner has had substantial prehearing contacts with proponents or opponents wherein the issues were discussed. Nor, on appeal from or review of an examiner's decision, shall any member of the legislative body who has such an interest or who has had such contacts participate in the consideration thereof. 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. 22.16.080 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 -3- shall answer them. 22.16.090 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 this Chapter and Title 22 of the Pasco Municipal Code, shall hear and decide: (1) 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: (a) 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; (b) 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; and (c) The special circumstances applicable to the subject property were not created through the action(s) of the applicant or any predecessor in interest. (2) 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 an administrative official 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. -4- 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. (3) 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. (4) Extension of Use on Boarder 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. (5) 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. (6) Other Powers. In the performance of duties prescribed by this Chapter or other ordinances, examiners may: (a) Administer oaths and affirmations, examine witnesses, rule upon offers of proof, receive relevant evidence, and conduct discovery procedures which may include 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; (b) Upon the request of the planning department or 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 -5- 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; (c) Regulate the course of the hearing in accordance with this and other applicable ordinances; (d) Hold conferences for the settlement or simplification of the issues by consent of the parties; (e) Dispose of procedural requests or similar matters; (f) 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 hearing 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. (g) 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. 22.16.100 APPLICATIONS. Applications for permits or approvals within the jurisdiction of the hearing examiner shall be presented to the Director of Community Development. The Director shall accept such applications only if applicable filing requirements are met. The Director 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. 22.16.110 REPORT OF COMMUNITY DEVELOPMENT -6- DEPARTMENT. On 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 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. 22.16.120 PUBLIC HEARING. Prior to rendering a decision on any land use matter listed in Section .090, the examiner shall hold at least one (1) public hearing thereon with proper notice according to the procedures for hearing notification as prescribed by Chapter 35.63 RCW. 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 resonably 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 Department of Community Development which the examiner desires to consider shall be offered and made a part of the record. After all interested parties have had an opportunity to speak, in accordance with the hearing 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 -7- 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 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. 22.16.130 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: (1) Findings of Fact and Conclusions of Law based upon and supported by the record. Such Findings and Conclusions shall also set forth the manner by which the decision would carry out and conform to the City's comprehensive plan, and other official policies, objectives and land use regulatory enactments. (2) A decision on the application to grant, deny or grant with such conditions, modification and restrictions as the examiner finds reasonable to make the application compatible with its environment, the comprehensive plan, or other official policies and objectives, and land use regulatory enactments. Examples of the kinds of conditions, modifications and restrictions which may be imposed include, but are not limited to, additional set backs, screenings in the form of fencing or landscaping, easements, dedications or -8- additional right-of-way and performance bonds. (3 ) A statement that the decision will become final in ten (10) calendar days unless appealed to the City Council, together with a description of the appeal procedure. 22.16.140 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. 22.16.150 APPEAL FROM EXAMINER'S DECISION. The decision of the examiner as to those applications listed in Section .090 shall be final and conclusive unless a timely appeal therefrom is filed with the examiner by an agrieved party within ten (10) days. Such appeal shall contain a brief statement of the reason why error is assigned to the examiner's decision, and shall be accompanied by a fee of Thirty-Five Dollars ($35.00). The timely filing of an appeal shall stay the effective date of the examiner's decision until such time as the appeal is adjudicated by the City Council or is withdrawn. Within five (5) working days following the timely filing of an appeal, notice thereof and of the date, time and place for City Council consideration shall be mailed to the proponent and to all other parties of record. Such notice shall additionally indicate the deadline for submittal of written comments as prescribed in Section .110. 22.16.160 CITY COUNCIL CONSIDERATION. The City Council may accept, modify or reject the examiner's decision, or any Findings or Conclusions therein, or may remand the decision to the examiner for further hearing. A decision by the City Council which modifies or rejects shall not be made until the City Council has held a properly advertised public hearing, and shall be supported by Findings and Conclusions showing that the examiner's decision was inconsistent with the facts -9- 41, / Aar- 4&A..., A - f - - a n By City Clerk Ev available to the examiner. If it appears to the City Council that there is additional information which should have been supplied to examiner, or otherwise feels that the examiner should reconsider his decision, the City Council shall remand the decision to the examiner for further consideration and may specify information to be considered or to be provided by city departments, or others. 22.16.170 APPEAL TO SUPERIOR COURT. The action of the City Council in approving, modifying or rejecting a decision of the examiner shall be final and conclusive unless within thirty (30) days from the date of such action an aggrieved party files his appeal or petition for extraordinary writ with the Superior Court for Franklin County. Section 2: This ordinance shall take effect five (5) days after passage and publicaton. PASSED By the City Council and approved by the Mayor this 20 day of October„ 1986. ATTEST: APP OVED AS TO FORM: nIv Or, Lt I la Greg Aeubstello, City At orney By -10- DATED This 22nd day of October, 198 LLS, City Clerk SUMMARY OF CITY OF PASCO ORDINANCE 2626 AN ORDINANCE creating the position of hearing examiner, establishing procedures for appointment and removal, establishing general qualifications and duties, and procedures to be followed by the hearing examiner and parties appealing such decisions; and repealing and re-enacting Chapter 22.16 of the Pasco Municipal Code. Section 1 of the ordinance repeals existing Ch. 22.16 PMC in its entirety so as to abolish the Board of Adjustment and its jurisdiction, and re-enacts the chapter to provide for a hearing examiner system under Chapter 22.16 of the Pasco Municipal Code titled HEARING EXAMINER SYSTEM and containing the following sections. 22.16.010 Purpose. 22.16.020 Creation of Land Use Hearing Examiner. 22.16.030 Appointment and Terms. 22.16.040 Qualifications. 22.16.050 Removal. 22.16.060 Freedom from Improper Influence. 22.16.070 Conflict of Interest. 22.16.080 Rules. 22.16.090 Powers. 22.16.100 Applications. 22.16.110 Report of Community Development Department. 22.16.120 Public Hearing. 22.16.130 Examiner's Decision. 22.16.140 Notice of Examiner's Decision. 22.16.150 Appeal from Examiner's Decision. 22.16.160 City Council Consideration. 22.16.170 Appeal to Superior Court. Section 2 states that the ordinance shall take effect five (5) days after its passage and publication. The ordinance was passed on the 20th day of October, 1986. The full text of the ordinance will be mailed upon request made to the Pasco City Clerk. Ctri-(!itg P0 BOX 2608 PASCO, WASHINGTON (509) 582-1500 DATE 120586 LEGAL NO 001938 ACCOUNT NO 50550 DESCRIPTION ORDINANCE 2626 99302-2608 LEGAL ADVERTISING INVOICE TIMES 001 LINES 76 SOLD TO CitN of Pasco PO Bo x: 293 Pasco wa 99301 TOTAL $ 53.20 NOTICE- This is an invoice for legal advertising space Please pay from this Invoice as no statement will be rendered Please detach at perforation and return with payment AFFIDAVIT OF PUBLICATION COUNTY OF BENTON SS STATE OF WASHINGTON MARY JO HENRY , being duly sworn, deposes and says, I am the Legal Clerk of the Tr-City Herald, a daily newspaper That said newspaper is a legal newspaper and has been approved as a legal newspaper by order of the superior court in the county in which it is published and it is now and has been for more than six months prior to the date of the publication hereinafter referred to, published countinually as a daily newspa- per in Benton County, Washington That the attached is a true copy of a ORDINANCE 2626 as it was printed in the regular and entire issue of the Tr-City Herald itself and not in a supplement thereof, 001 time(s), commencing on 120586 , and ending on 120586 , and that said newspaper was regulary distributed to its subscribers during all of this period SUBSCRIBED AND SWORN BEFORE ME THIS / 0-64 DAY OF ka OUILIA-C61) , Ne6 SUPAMARY OF CITY OF PASCO ORDINANCE 2828 AN ORDINANCE cre- ating the position of hearing examine'', establishing pro- cedures for appointment and removal, establishing general qualifications and duties arid procedures to be follov v)cl by the hearing examiner and parties ap- pealing such decisions, and repealing and re-enact- ing Chapter 22 16 of the Pasco Municipal Code Section 1 of the ordi- nance repeals existing Ch 22 16 PMC in its entirety so as to abolish the Board of Adjustment and its jurisdic- tion, and re-enacts the chapter to provide for a hearing examiner system under Chapter 22 16 of the Pasco Municipal Code ti- tied HEARING EXAMINER SYSTEM and containing the following sections ' 22 16 010 Purpose 22 16 020 Creation of Land Use Hearing Exam- iner 22 16 030 Appointment and Terms 22 16 040 Qualifications 22 16 050 Removal 22 16 060 Freedom from Improper Influence 22 16 070 Conflict of In- terest 22 16 080 Rules 22 16 090 Powers 22 16 100 Applications 22 16 110 Report of Community Development Department 22 18 120 Public Hear- ing 22 16 130 Examiner's Decision 22 16 140 Notice of Ex- aminer a Decision 22 16 160 Appeal from Examiner's Decision 22 16 160 City Council Consideration 22 16 170 Appeal to Su- perior Court Section 2 states that the ordinance shall take effect five (5) days after its pas- sage and publication The ordinance was passed on the 20th day of October, 1986 The full text of the ordi- nance will be mailed upon request made to the Pasco City Clerk DATED This 22nd day of October 1986 -8-Evelyn Wells City Clerk LEGAL NO 001938 - December 5, 1986 1 Notary public/in and for the State of Wash- ington, residing at Kennewick 0 COMMISSION EXPIRES CITY of CITY ATTORNEY 1509) 545-3406 Sean 726-3406 P. O. BOX 293 412 WEST CLARK PASCO, WASHINGTON 99301 November 4, 1986 Tri City Herald P.O. Box 2608 Pasco, Washington 99302 Attn: Rochelle Dear Rochelle: Please publish Ordinance Nos. 2626 and 2627 on the following date: November 7, 1986 Please send two (2) Affidavits of Publication for each. Sincerely yours, Evelyn Wells City Clerk ew