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HomeMy WebLinkAbout13-19r RESOLUTION NO. I 'J - I l A RESOLUTION of the City Council of the City of Port Angeles, Washington, adopting Hearing Examiner Rules and Procedures. WHEREAS, the Port Angeles Municipal Code (PAMC) contains a provision for the appointment and authority of Hearing Examiner to hear and decide land use actions and appeals of land use and other administrative decisions; and WHEREAS, the City Manager selected Sound Law Center as the entity to provide Hearing Examiner services; and WHEREAS, the Port Angeles Municipal Code allows the Examiner to draft Rules and Procedures for conducting public hearings; and WHEREAS, Sound Law Center in their capacity as the Hearing Examiner has submitted Rules and Procedures in accordance with PAMC 2.18.070; and WHEREAS, PAMC 2.18.070 states such Rules and Procedures are subject to Council confirmation or amendment by resolution. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Port Angeles, Washington confirms the Rules and Procedures applicable to public hearings before the Hearing Examiner, prepared by Sound Law Center and attached hereto as Exhibit A. PASSED by the City Council of the City of Port Angeles at a regular meeting of Council held on the 2nd day of July 2019. ATTEST: By: Kari Martinez -Bailey, Ci ler APPROVED AS TO FORM: By. Wil iam E. Bloor, City At omey -1- Sissi Bruch, Mayor RULES OF PROCEDURE FOR PROCEEDINGS BEFORE THE HEARING EXAMINER OF THE CITY OF PORT ANGELES, WASHINGTON CHAPTER I: HEARINGS ON PERMIT APPLICATIONS This Chapter applies to open record hearings on land use applications. SECTION 1.1: DEFINITIONS "PAMC" means the Port Angeles Municipal Code. "Appellant" means a person, organization, association, or other similar group who files a complete and timely appeal of a decision or other appealable action in accordance with the Port Angeles Municipal Code. "Applicant" means a person (or persons) who is the owner of the subject property or the authorized representative of the owner of the subject property, and who has applied for a land use permit. "Calendar Day" means each day of the calendar week. When the last day of a stated period should fall on a Saturday, Sunday, or National, State, or City holiday, the stated period shall run until the end of the following working day. "City" means the City of Port Angeles, Washington. "City Council" means the Port Angeles City Council "Clerk of the Hearing Examiner" means a person designated by the City of Port Angeles to assist the Hearing Examiner in his/her duties. "Comprehensive Plan" means the Comprehensive Plan that has been adopted by the City of Port Angeles. "County" means Clallam County, Washington. "Ex parte communication" means written or oral communications to the Hearing Examiner about a matter pending before the Hearing Examiner, not included in the record and made outside of a hearing. "Hearing" means the proceeding at which the public has the opportunity to provide written and oral testimony and the testimony becomes part of the record. The hearing creates the record through testimony and submission of evidence and information. "Hearing Examiner" or "Examiner' means the Hearing Examiner or the Hearing Examiner Pro Tempore of the City of Port Angeles. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 1 of 18 "Interested Person" means any individual, partnership, corporation, association, or public or `— private organization of any character that may be affected by proceedings before the Hearing Examiner and shall include any party in a contested case. The City's administrative staff shall be considered an Interested Person and shall have the same rights as any other Interested Person. "Motion" means an oral request during the course of a hearing or a written request made to the Hearing Examiner for an order or other ruling. "Notice of Decision" means the written document distributed by the City that communicates a decision or recommendation on an action before the Hearing Examiner. RCW 36.708.130. The date on which a land use decision is issued is three days after a written decision or recommendation is mailed by the City or, if not mailed, the date on which the City provides notice that a written decision or recommendation is publicly available. RCW 36.70C. 040(a). "Open Record Appeal Hearing" means an administrative hearing that creates the record on appeal through written and oral testimony and submission of evidence and information. "Open Record Hearing" means a hearing held under chapter 36.7013 RCW and conducted by the Port Angeles Hearing Examiner who is authorized by the City to conduct such hearings, that creates the record through testimony and submission of evidence and information, under procedures prescribed by the City by ordinance or resolution. "Order" means a written determination of the Hearing Examiner, which directs a party to the proceedings to act or to refrain from acting. "Person" means any individual, firm, association, partnership, corporation or any entity, public or private. "Party of record" means: a. A person who has testified at the open record hearing on the application, or who submitted substantive written comments on the application (excluding persons who have only signed petitions or mechanically produced form letters), or who, prior to the rendering of the decision, requested notice of the decision. RCW 36.708.130. b. The applicant, or applicant's representative; c. The property tax payer as identified by the records available from the Clallam County assessor's office; d. The City's administrative staff. "Record" means the oral testimony and written exhibits submitted at a hearing. The electronic recording of the proceeding shall be included as part of the record. At the discretion and order of the Hearing Examiner, the record may be supplemented after the closing of testimony. "RCW" means the Revised Code of Washington. "Staff Report" means the document prepared by the City Planning staff.. "Working Day" means any day for which the City's offices are open for normal business matters. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 2 of 18 SECTION 1.2: JURISDICTION The City Council has authorized the Hearing Examiner to prescribe rules and regulation for the conduct of hearings. The Hearing Examiner's jurisdiction is limited to those issues where ordinance or other appropriate authority grants the Hearing Examiner the authority to hold hearings, make decisions or recommendations, and issue orders. SECTION 1.3: EX PARTE COMMUNICATION 1.3.1 No person, nor his or her agent, employee, or representative, who is interested in a particular petition or application currently pending before the Hearing Examiner shall communicate ex parte, directly or indirectly, with the Hearing Examiner concerning the merits of that or a related petition or application. This rule shall not prohibit ex parte communication concerning procedural matters. All allowed ex parte procedural communications shall be directed to the Clerk of the Examiner. Any material not submitted in this manner will not be considered a part of the record established on that application or petition. 1.3.2 The Hearing Examiner shall not communicate ex parte directly or indirectly with any interested person, nor his or her agent, employee, or representative, with regard to the merits of a petition or application that is pending before the Hearing Examiner, or a factually related petition or application. 1.3.3 If prohibited ex parte communication is made to or by the Hearing Examiner, such communication shall be publicly disclosed, and proper discretion shall be exercised by the Hearing Examiner on whether to disqualify himself or herself as Examiner for that particular hearing. SECTION 1.4: NATURE OF PROCEEDINGS 1.4.1 Expeditious Proceedings It is the policy of the Office of the Hearing Examiner that, to the extent practicable and consistent with requirements of law, hearings shall be conducted expeditiously. In the conduct of such proceedings the Hearing Examiner, City staff, and all parties, or their agents, shall make every effort at each stage of a proceeding to avoid delay. 1.4.2 Frequency The Clerk of the Examiner shall schedule hearings in coordination with the Hearing Examiner. There may be more than one case scheduled to commence at the same time, and in such event the Hearing Examiner shall have discretion in setting the agenda. 1.4.3 Format The format for a hearing will be of an informal nature yet designed in such a way that the evidence and facts relevant to a particular proceeding become available to the Hearing Examiner and easily ascertainable by a reviewing body. The format will allow development of a record by parties. 1.4.4 Site Visit RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OFADMINISTRA TIVE DECISIONS (July 2018) Page 3 of 18 When necessary in the judgment of the Hearing Examiner, the Hearing Examiner may inspect a site prior or subsequent to the hearing. The site visit is not part of the record. Failure to inspect the site will not render the Hearing Examiner's decision void. 1.4.5 Record of Hearing a. The City shall make an electronic recording of all hearings in an audio format. Hearings shall be electronically recorded and such recordings shall be a part of the record. No minutes of the hearing will be kept. Copies of the electronic recordings of a particular proceeding shall be made available to the public within three (3) working days of a request. The requester shall pay the reasonable cost of such copying. b. Copies of any written materials in the record may be obtained by any interested person who shall be responsible for paying the cost of reproducing such material. 1.4.6 Computation of Time Computation of any period of time prescribed or allowed by these rules, ordinances of the City of Port Angeles, and laws of the State of Washington shall begin with the first day following that on which the act or event initiating such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday, or a national, state, or City holiday, the period shall run until the end of the next following working day. SECTION 1.5: RIGHTS AND RESPONSIBILITIES OF PARTIES 1.5.1 Rights of City The City staff shall have the right to present evidence and testimony, object, and make motions, arguments, recommendations, and all other rights essential to a fair hearing. 1.5.2 Rights of Applicant Every applicant shall have the right of notice, cross-examination, presentation of evidence, objection, motion, argument, and all other rights essential to a fair hearing. Further, an applicant shall have the right to timely access to the City staff report. The Hearing Examiner may limit the time allowed to parties testifying on an equal basis, may establish time limits for initial or rebuttal evidence, and may limit the number of witnesses to be heard. Cross-examination is permitted as necessary for a full disclosure of the facts, but the Hearing Examiner shall control the amount and style of cross- examination. 1.5.3 Rights of Parties of Record Every party of record shall have the right to present evidence and testimony at hearings. The right of persons to cross-examine, object, and submit motions and arguments shall be at the discretion of the Hearing Examiner. The Hearing Examiner may impose reasonable limitations on the number of witnesses heard, and the nature and length of their testimony. 1.5.4 Responsibilities of City Staff RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 4 of 18 The City staff shall provide a report consistent with the provisions of Rule 1.7.6, provide notice of hearings, present materials at the hearings, and provide documentation relevant to the case. Staff reports should be available to the public five (5) calendar days before the hearing. 1.5.5 Responsibilities of Applicant Whenever possible the Applicant shall provide the Hearing Examiner with material that supports his or her case prior to the hearing, be prepared for questions by the Hearing Examiner, and treat all who participate in these proceedings courteously. All supporting materials shall be provided to the Hearing Examiner and City Planning Staff a minimum of five (5) calendar days before the hearing. 1.5.6 Responsibilities of All Participants, Witness and Observers Parties, witnesses, or observers shall conduct themselves with civility and deal courteously with all who participate in the proceedings. Failure to do so will result in removal from the hearing at the discretion of the Hearing Examiner. SECTION 1.6: PRESIDING OFFICIALS 1.6.1 Presiding Officials a. The Hearing Examiner shall preside over the hearings. b. The Hearing Examiner shall have all of the authority and duties as granted to him or her in state statutes, the PAMC, and other local ordinances. Included in the duties of the Hearing Examiner are the following: to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. The Hearing Examiner shall have all powers necessary to that end, including the following: i. To administer oaths and affirmations; ii. To rule upon offers of proof and receive evidence; iii. To regulate the course of the hearings and the conduct of the parties and their agents; iv. To question any party presenting testimony at the hearing; v. To hold conferences for settlement, simplification of the issues, or any other proper purpose; vi. To require briefs on legal issues; vii. To allow limited discovery if it is not unduly burdensome, will not unnecessarily delay the proceedings, and the information is not otherwise available; viii. To consider and rule upon all procedural and other motions appropriate to the proceedings; and ix. To make and file recommendations or decisions. c. In the performance of his or her adjudicative functions, the Hearing Examiner shall not be subject to the supervision or direction of any elected official, officer, employee or agent of any municipal department. 1.6.2 Presence of Legal Counsel at Hearings or Public Meetings RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 5of18 a. All parties participating in the hearings may be represented at the hearings by legal counsel of their choice. b. At the request of any department and discretion of the Hearing Examiner, a representative of the City Attorney's Office may be present at the hearings or public meetings to advise on matters of law and procedure. c. Attorneys engaged in the representation of clients before the Hearing Examiner shall conduct themselves in accordance with all applicable Rules of Professional Conduct, including the display of courtesy to other members of the bar, witnesses, and all other persons present in the hearing room. d. All forms of legal authority including briefs, staff reports, and other legal memoranda upon which a party of record will be relying or presenting at the hearing must be submitted to the Hearing Examiner's office at least five (5) days in advance of the scheduled hearing date. The above mentioned documents shall be available to the public, at least five (5) days in advance of the scheduled hearing date. SECTION 1.7: CONDUCT OF HEARINGS 1.7.1 Notice Requirements of Hearings and Filings a. All notice, time requirements, and methods of notification shall be consistent with the provisions as set forth in the PAMC, as applicable, in addition to the provisions of this Section. b. Affidavit of Notice: An affidavit attesting to the notice given of a hearing (including dates and places of publication, and list of addresses) shall be part of each record. 1.7.2 Oath or Affirmation All testimony before the Hearing Examiner shall be given under oath or affirmation to tell the truth. An interpreter acting on behalf of any interested person shall take an oath that a true interpretation of the interested person's testimony shall be made. 1.7.3 Content of the Record The record of a hearing conducted by the Hearing Examiner shall include, but not be limited to, the following materials.- a. aterials: a. The application or petition; b. The departmental staff report; c. All evidence received, which shall include oral testimony given at the hearing, all exhibits, other materials admitted as evidence, and any written material submitted pursuant to Hearing Examiner order; d. A statement of all materials officially noticed; RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 6 of 18 e. A decision or a recommended decision containing the findings and conclusions of the Hearing Examiner; f. Recordings made on electronic equipment; and g. An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA) (if applicable). 1.7.5 Development of Record A hearing usually will include, but not be limited to, the following elements: a. A brief introductory statement of the Hearing Examiner's process; b. A report by City staff that may include introduction of the request, reference to visual aids, and a summary of the recommendation of the department; c. Testimony by the applicant and cross-examination of the witnesses; d. Testimony of interested parties; e. Opportunity for cross-examination and rebuttal; and f. An opportunity for questions by the Hearing Examiner. 1.7.6 Content and Form of Staff Reports The City staff report on a land use application should include the following, if relevant to the application: a. A list of the names and addresses of the owner and applicant of the subject property and his/her property interest in the property that is the subject of the hearing. b. A brief summary of the requested action and the citation of the ordinance controlling the request. c. A common description of the subject property and a legal description of the subject property. d. A statement identifying applicable City zoning code regulations. e. A technical data summary of the Comprehensive Plan designation and zoning designation of the subject property; the current development of the subject property and the adjoining properties; topographical information; geological and soils information; information on the vegetation on the property; and any other relevant scientific, environmental or engineering information. f. The current access to the subject property and the proposed access to the subject property. g. An in-depth analysis of the proposed project. This analysis may include, but not be limited to, the following elements of review: i. natural features; ii. character and design, including population figures; iii. human resources; iv. housing; v. economic development; vi. transportation; vii. community facilities, services and institutions; viii. government jurisdiction boundaries; ix. neighborhoods; x. land use plans; and xi. land use regulations. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 7 of 18 h. A history of the requested action and a history and vicinity map of the development in the surrounding properties. In making the analysis, the staff shall refer to applicable ordinances as often as possible. i. A summary of any other requested land use permits in the area. j. A description of the compatibility and impact of the proposal on the existing development and the probable character of the proposal. k. A summary of the reports or recommendations of any other agencies consulted. I. Appropriate maps of the subject property. If photographs of the site are available the applicant is encouraged to provide color reproductions that shall be part of the staff report. m. The result of the determination pursuant to the State Environmental Policy Act. n. Staffs conclusions and recommendations. The staff report shall be filed with the Hearing Examiner at least five (5) calendar days prior to the scheduled hearing and copies thereof mailed to the applicant and made available for public inspection. Copies thereof shall be provided to all interested parties upon payment of reproduction costs. 1.7.7 Continuances of Hearings a. Hearing Examiner: If the Hearing Examiner finds that more information is necessary in order to make a decision or recommendation, or he or she is unable to hear all of the public comments on the matter, the hearing may be continued to a specified date. If the hearing is continued and the Hearing Examiner publicly announces the specific date, time, and place before adjournment, no further notice of the hearing need be given. Continuances shall be consistent with the provisions of the PAMC but shall be granted for a period of no longer than thirty (30) calendar days. At the Request of a Party Any party of record may request continuance of a hearing. The request, if made prior to the hearing, must be in writing to the Hearing Examiner and to the City and state reasonable grounds for a continuance. If the request is made orally at the hearing it must be based on reasonable grounds. The Hearing Examiner shall have discretion to grant or deny the request for continuance. 1.7.8 Evidence a. Burden of proof. In each proceeding, the applicant shall have the burden of proof to show compliance with applicable laws and regulations of Washington State and the City of Port Angeles. b. Admissibility. The hearing generally will not be conducted in strict adherence to Rules of Evidence. Any relevant evidence shall be admitted if it is the type that possesses probative value 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. The Hearing Examiner shall have discretion on the admissibility of all evidence. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 8 of 18 c. Copies. Documentary evidence may be received in the form of copies of excerpts, if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original. It is advisable to provide extra copies of all documents to the Hearing Examiner. d. Judicial notice. The Hearing Examiner may take judicial notice of judicially cognizable facts and may take notice of general, technical, or scientific facts within his or her specialized knowledge. The Hearing Examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding. e. The Hearing Examiner may request a document to be filed after the close of public testimony. Only those documents referred to at the hearing may be submitted and only those specifically requested by the Hearing Examiner. Additional evidence may only be submitted upon a Request for Reconsideration based on new evidence not reasonably available at the time of the hearing. If additional evidence is submitted with a Request for Reconsideration, it will be considered only upon a showing of significant relevance and good cause for delay in its submission. All parties of record will be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments. f. All parties will be allowed opportunity to make a record of evidence admitted or denied during the course of the hearing. This record shall include offers of proof. SECTION 1.8: WITHDRAWAL OF APPLICATION 1.8.1 Withdrawal Prior to Notice of Hearing If an applicant provides written notification to the City of a request to withdraw the application before official notice of the hearing is given, the withdrawal shall be granted and the hearing will not be held. 1.8.2 Withdrawal Made Any Other Time Withdrawal requests made at any time other than that mentioned in Section 1.8.1 shall be granted at the sole discretion of the Hearing Examiner. 1.8.3 Refund of Application Costs Upon Withdrawal Upon withdrawal of the application, refund of any costs associated with the application process shall be at the sole discretion of the City. SECTION 1.9: DECISIONS AND RECOMMENDATIONS 1.9.1 Written Decisions or Recommendation For applications on which the Hearing Examiner has final approval authority, a written report of findings, conclusions, and decision shall be sent to all parties of record. The Hearing Examiner's decision or recommendation shall be submitted within ten (10) working days following the conclusion of all testimony and hearings, unless a longer period is mutually agreed to by the City, Applicant, and Hearing Examiner. The findings, conclusions and decision or recommendation may indicate how the decision or recommendation carries out the goals, policies, plans, and requirements of the PAMC, and other policies and objectives of the City. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 9 of 18 1.9.2 Content of Decision or Recommendation A decision or recommendation shall include a statement of: a. The Hearing Examiner's decision; b. The nature and background of the proceeding. c. Findings. The findings shall be based exclusively on the evidence presented in the hearing and those matters officially noticed. The findings shall consist of a concise statement of each fact found to support the review criteria. A statement of any threshold determination made under chapter 43.21 RCW shall be included. d. Conclusions. Conclusions shall include a resolution of the review criteria based upon the findings. The conclusions may reference legal criteria, if applicable. The conclusions may make reference to the Comprehensive Plan, as well as to the effect of both approval and denial on property in the vicinity, on businesses, if relevant, and on the general public. e. The appropriate rule, order, or relief. The decision or recommendation shall be based upon a consideration of the whole record and supported by reliable, probative, and substantial evidence. All decisions may include conditions of approval, including the time limit after which any approval shall expire if not utilized. 1.9.3 Procedure for Reopening Hearing a. At any time prior to the filing of the final decision or recommendation, the Hearing Examiner may reopen the proceeding for the reception of further evidence. All parties of record who participate at the hearing shall be given notice of the consideration of such evidence and granted an opportunity to review such evidence and file rebuttal arguments. b. If within ten (10) calendar days after the hearing any party of record petitions the Hearing Examiner for a reopening of the hearing, the Hearing Examiner shall have discretion to reopen the hearing to consider new testimony or new evidence that was unavailable at the time of the hearing. c. Reconsideration [Reserved] 1.9.4 Correction of Clerical Errors Any party of record who participated at the hearing may request at any time correction of a clerical error in the decision by notifying the Clerk to the Hearing Examiner of the error and proposed correction. The Hearing Examiner shall have discretion to issue a corrected decision. Such a corrected decision shall not stay the effect of a decision or substance of the conclusions of the Hearing Examiner's decision. SECTION 1.10: APPEALS OF DECISIONS The decision of the hearing examiner shall be final unless an appeal is filed pursuant to the PAMC. SECTION 1.11: CONFLICTS These Rules of Procedure are adopted under the authority granted by the Port Angeles City Council to supplement the requirements set forth in the PAMC. Any conflict between the rules and the provisions of the PAMC will be decided consistent with the provisions of the PANIC. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page /0 of 18 CHAPTER II: RULES OF APPEAL OF ADMINISTRATIVE DECISIONS This chapter applies to appeals of administrative decisions that affirm, reverse, or remand a land use permit application. SECTION 2.1: DEFINITIONS "PAMC" means the Port Angeles Municipal Code. "Appellant" means a person, organization, association, or other similar group who files a complete and timely appeal of a decision or other appealable action in accordance with the Port Angeles Municipal Code. "Applicant" means a person (or persons) who is the owner of the subject property or the authorized representative of the owner of the subject property, and who has applied for a land use permit. "Calendar Day means each day of the calendar week. When the last day of a stated period should fall on a Saturday, Sunday, or National, State, or City holiday, the stated period shall run until the end of the following working day. "City" means the City of Port Angeles, Washington. "City Council" means the Port Angeles City Council. "Clerk to the Hearing Examiner" means a person designated by the City of Port Angeles to assist the Hearing Examiner in his/her duties. "Comprehensive Plan" means the Comprehensive Plan that has been adopted by the City of Port Angeles. "County" means Clallam County, Washington. "Ex parte communication" means written or oral communications to the Hearing Examiner about a matter pending before the Hearing Examiner, not included in the record and made outside of a hearing. "Hearing" means the proceeding at which the public has the opportunity to provide written and oral testimony and the testimony becomes part of the record. The hearing creates the record through testimony and submission of evidence and information. "Hearing Examiner" means the Hearing Examiner or the Hearing Examiner Pro Tempore of the City of Port Angeles. "Interested Person" means any individual, partnership, corporation, association, or public or private organization of any character that may be affected by proceedings before the Hearing RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 11 of 18 Examiner and shall include any party in a contested case. The City's administrative staff shall be considered an Interested Person and shall have the same rights as any other Interested Person. "Motion" means an oral request during the course of a hearing or a written request made to the Hearing Examiner for an order or other ruling. "Notice of Decision" means the written document distributed by the City that communicates a decision or recommendation on an action before the Hearing Examiner. RCW 36.708.130. The date on which a land use decision is issued is three days after a written decision or recommendation is mailed by the City or, if not mailed, the date on which the City provides notice that a written decision or recommendation is publicly available. RCW 36.70C. 040(a). "Open Record Appeal Hearing" means an administrative hearing that creates the record on appeal through written and oral testimony and submission of evidence and information. "Open Record Hearing" means a hearing held under chapter 36.7013 RCW and conducted by the Port Angeles Hearing Examiner who is authorized by the City to conduct such hearings, that creates the record through testimony and submission of evidence and information, under procedures prescribed by the City by ordinance or resolution. "Order" means a written determination of the Hearing Examiner, which directs a party to the proceedings to act or to refrain from acting. "Person" means any individual, firm, association, partnership, corporation or any entity, public or private. "Party of record" means: a. A person who has testified at the open record hearing on the application, or who submitted substantive written comments on the application (excluding persons who have only signed petitions or mechanically produced form letters), or who, prior to the rendering of the decision, requested notice of the decision. RCW 36.708.130. b. The applicant, or applicant's representative; c. The property tax payer as identified by the records available from the County assessor's office; d. The City's administrative staff. "Record" means the oral testimony and written exhibits submitted at a hearing. The electronic recording of the proceeding shall be included as part of the record. At the discretion and order of the Hearing Examiner, the record may be supplemented after the closing of testimony. "RCW" means the Revised Code of Washington. "Staff Report" means the document prepared by the City's Planning staff. "Working Day" means any day for which the City's offices are open for normal business matters. SECTION 2.2: PRESIDING OFFICIALS 2.2.1 Presiding Officials a. The Hearing Examiner shall preside over the hearings. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 12 of 18 b. The Hearing Examiner shall have all of the authority and duties as granted to him or her in state statutes, the PAMC, and other local ordinances. Included in the duties of the Hearing Examiner are the following: to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. The Hearing Examiner shall have all powers necessary to that end, including the following: i.. To administer oaths and affirmations; ii. To rule upon offers of proof and receive evidence; iii. To regulate the course of the hearings and the conduct of the parties and their agents; iv. To question any party presenting testimony at the hearing; v. To hold conferences for settlement, simplification of the issues, or any other proper purpose; vi. To require briefs on legal issues; vii. To allow limited discovery if it is not unduly burdensome, will not unnecessarily delay the proceedings, and the information is not otherwise available; viii. To consider and rule upon all procedural and other motions appropriate to the proceedings; and ix. To make and file recommendations or decisions. c. In the performance of his or her adjudicative functions, the Hearing Examiner shall not be subject to the supervision or direction of any elected official, officer, employee or agent of any municipal department. SECTION 2.3: FILING 2.3.1 Compliance with Rules All appeals must comply with the Rules and with the requirements established in the applicable PAMC ordinance(s) and/or RCW 36.70C.040 (as it exists now or as amended) under which the appeal is filed. 2.3.2 Timeliness To be considered timely, an appeal from an administrative decision must be received by the City no later than fifteen (15) days after the notice of the decision or after other notice that the decision has been made and is appealable. Such an appeal must be filed with the Clerk to the Examiner. 2.3.3 Fee Appeals shall be accompanied by the appropriate filing fee as required by the PAMC Fee Schedule. 2.3.4 Contents All appeals shall be filed in accordance with the PAMC. An appeal shall be in writing and should contain the following: RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 13 of 18 a. A heading in the words: "Before the Hearing Examiner, or City Council", whichever is appropriate. b. A caption reading: "Appeal of " giving the names of all appellants participating in the appeal; c. A brief statement setting forth the legal interest of each of the appellants; d. A brief statement in concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant; e. A brief statement in concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed, modified or otherwise set aside; f. The signatures of all parties named as appellants, and their official mailing addresses; g. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal. 2.3.5 Briefs Briefs or other memoranda of law may be submitted by the parties in support of or in response to an appeal. Each party is permitted one (1) primary brief not exceeding fifteen (15) double-spaced pages in length. In addition, the appellant may submit a reply brief not exceeding ten (10) pages in length. The Hearing Examiner may, at his or her discretion, waive or modify these page limits at the request of either of the parties in order to accommodate complex legal and factual issues. Briefs must be limited to the specific issues set forth in the appellant's statement of appeal. 2.3.6 Motions Motions and responses to motions are not to exceed fifteen (15) double-spaced pages in _ length without prior approval of the Hearing Examiner. 2.3.7 Proposed Findings and Conclusions The Hearing Examiner may request proposed Findings and Conclusions to be submitted at the option of the parties. SECTION 2.4: DISMISSAL 2.4.1 An appeal may be dismissed without a hearing if the Hearing Examiner determines that it fails to state a claim for which the Hearing Examiner has jurisdiction to grant relief, or it is without merit on its face, frivolous, or brought merely to secure delay. 2.4.2 Any party may request dismissal of all or part of an appeal at any time with notice to all parties. The Hearing Examiner may make a ruling on a motion to dismiss based upon written arguments or may call for oral arguments. 2.4.3 When decision or action being appealed is withdrawn by the issuing department, the appeal becomes moot and shall be dismissed. SECTION 2.5: PREHEARING CONFERENCE 2.5.1 The Hearing Examiner may, on his or her own order, or at the request of a party, hold a conference prior to the hearing to consider: RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 14 of' 18 a. Identification, clarification, and simplification of the issues; b. Disclosure of witnesses to be called and exhibits to be presented; c. Motions; and d. Other matters deemed by the Hearing Examiner appropriate for the orderly and expeditious disposition of the proceedings. 2.5.2 Prehearing conferences may be held by telephone conference call. 2.5.3 The Hearing Examiner shall give written or oral notice to all parties of any prehearing conference. 2.5.4 All parties of record have the right to be represented at any prehearing conference. Representation is not required. 2.5.5 Following the prehearing conference, the Hearing Examiner may issue an order reciting the actions taken or ruling on motions made at the conference that shall be controlling on all participants. 2.5.6 At the hearing the Hearing Examiner shall develop for the record the time, purpose and result of the conference. If any orders have been issued they will be part of the record. 2.5.7 In the event that a prehearing conference is not held, the Hearing Examiner may issue a prehearing order with procedural information including identification of the parties; date and time of the hearing appeal; issues identified in the appeal statement; a request and date for submission of lists of witnesses and documents; cross-examination of witnesses; and an order of presentation. 2.5.8 Prehearing orders may not be appealed until the Hearing Examiner issues an appeal decision. SECTION 2.6: WITHDRAWAL 2.6.1 Only the appellant may withdraw an appeal. 2.6.2 Where an appeal is made by several persons, a group, organization, corporation, or other entity, withdrawal shall be made by the person who had been designated as the party representative. 2.6.3 An appellant's Request to Withdraw shall be granted as a matter of right and the appeal dismissed. 2.6.4 Upon withdrawal of the appeal, refund of any costs associated with the appeal process shall be at the discretion of the Hearing Examiner. SECTION 2.7: PARTY REPRESENTATIVE When a party consists of more than one individual, or is a group, organization, corporation, or other entity, the party shall designate an individual to be its representative and inform the RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 15 of 18 Hearing Examiner's office of the name, address, and telephone number of the designated -- representative. The rights of such an appellant shall be exercised by the person designated as the party representative. Notice or other communication to the party representative is considered to be notice or communication to party. SECTION 2.8: NOTICE OF HEARING 2.8.1 Contents The Notice of Hearing should include: a. Appellant name and project name (if applicable) b. The legal authority and jurisdiction for the hearing; c. The street address of the subject property or a description in non -legal terms of the property's location. d. A brief description of the decision of the Director that is being appealed. e. A statement of the scope of the appeal including a summary of the specific errors alleged in the letter of appeal. f. The date, time and place of the appeal hearing before the Hearing Examiner. 2.8.2 Time Notice of the hearing shall be given within the time required by applicable ordinance(s). If the time for Notice of Hearing is not specified by the applicable ordinance(s), or applicable ordinances conflict, minimum notice shall be fourteen (14) calendar days before the scheduled hearing date. 2.8.3 Responsibility The City shall be responsible for serving the Notice of Hearing for appeals. 2.8.4 Record of Notice A copy of the Notice of Hearing shall be made part of each record. SECTION 2.9: PARTIES' RIGHTS AND RESPONSIBILITIES 2.9.1 Although appellants and applicants have the right to be represented by an attorney, representation by an attorney is not required. 2.9.2 Where a party has designated a representative, the representative shall exercise the rights of the party. 2.9.3 Parties, witnesses, and observers shall conduct themselves with civility and deal courteously with all who participate in the proceedings. Failure to do so will result in removal from the hearing at the discretion of the Hearing Examiner. SECTION 2.10: CONTINUANCES 2.10.1 Hearing Examiner If the Hearing examiner finds that more information is necessary in order to make a decision or recommendation, or he or she is unable to hear all of the public comments on the matter, the hearing may be continued to a specified date. If the hearing is continued and the Hearing Examiner publicly announces the specific date, time, and place before adjournment, no further notice of the hearing need be given. Continuances RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND -- APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 16 of 18 shall be consistent with the provisions of the PAMC but shall normally be granted for a period of no longer than thirty (30) calendar days. 2.10.2 At the Request of a Party or Parties Any party of record may request continuance of a hearing. a. The request, if made prior to the hearing, must be in writing and state reasonable grounds for a continuance. b. The request for continuance must be submitted to the Hearing Examiner and all parties of record a minimum of ten (10) days prior to the date of the hearing. Other parties may submit a response to the request for continuance a minimum of five (5) days prior to the date of hearing. c. The parties may submit a joint request for continuance to the Hearing Examiner a minimum of three (3) working days prior to the date of the hearing. d. More than one request for continuance per party is disfavored. e. If the request is made orally at the hearing it must be based on reasonable grounds. f. The Hearing Examiner shall have discretion to grant or deny the request for continuance. SECTION 2.11: DEFAULT The Hearing Examiner may dismiss an appeal by an Order of Default where the appellant, without good cause, fails to appear or is unprepared to proceed at a scheduled and properly noticed hearing. SECTION 2.12: HEARING FORMAT 2.12.1 Appeal hearings, although generally informal in nature, shall have a structured format and shall be conducted in a manner deemed by the Hearing Examiner to make the relevant evidence most readily and efficiently available to the Hearing Examiner and to provide the parties a fair opportunity for hearing. 2.12.2 The order of an appeal hearing will generally be as follows: a. Hearing Examiner's introductory statement; b. Appellant's argument; c. Applicant's presentation; d. City's presentation; e. Rebuttal; and f. Closing argument of parties. 2.12.3 Notwithstanding the provisions of the PAMC, the order of hearing may be modified or a different order established as the Hearing Examiner deems necessary for a clear and fair presentation. The order of the hearing may also be modified as agreed upon by the parties, with the Hearing Examiner's approval. 2.12.4 The order of presentation at hearing shall not alter or shift any burden(s) or presumption(s) established by applicable law(s). SECTION 2.13: HEARING EXAMINER DECISION A decision of the Hearing Examiner on appeal shall include, but not be limited to, a statement regarding the following: RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 17 of 18 a. Background. The nature and background of the proceeding, including identification of party representatives participating in the hearing, prehearing determinations, and other similar information. b. Findings. The individual facts that the Hearing Examiner finds relevant, credible, and requisite to the decision, based on the record of proceedings. c. Conclusions. Legal and factual conclusions based upon specific provisions of law and the findings of fact. d. Decision. The Hearing Examiner's decision as to outcome of the appeal (affirm wholly or in part, reverse, or modify the decision appealed) based upon a consideration of the whole record and supported by substantial evidence in the record. e. The Hearing Examiner shall hear evidence from all affected parties and shall render a decision on the appeal within ten (10) working days of the close of the hearing record. SECTION 2.14: RECORD 2.14.1 The record of an appeal shall include: a. The application or petition; b. The departmental staff reports; c. All evidence received which shall include oral testimony given at the hearing, all exhibits, and other materials admitted as evidence; d. A statement of all matters officially noticed; e. A decision or a recommended decision containing the findings and conclusions of the Hearing Examiner; f. Recordings made on electronic equipment; and g. An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA)(if applicable). 2.14.2 The Hearing Examiner's administrative file on an appeal case may include other information or materials that are not part of the evidentiary record. SECTION 2.15: RECONSIDERATION [RESERVEDI SECTION 2.16: CORRECTION OF CLERICAL ERRORS Any party of record who participated at the hearing may request at any time correction of a clerical error in the decision by notifying the Clerk to the Hearing Examiner of the error and proposed correction. The Hearing Examiner shall have discretion to issue a corrected decision. Such a corrected decision shall not stay the effect of a decision or substance of the conclusions of the Hearing Examiner's decision. RULES OF PROCEDURE FOR LAND USE APPLICATIONS AND APPEAL OF ADMINISTRATIVE DECISIONS (July 2018) Page 18 o f 18