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ORD 79-34 EMPLOYMENT OF JUDICIAL OFFICERSAN ORDINANCE (HEREINAFTER HEARINGS PROCEDURE ORDINANCE)' AUTHORIZING THE EMPLOYMENT OF JUDICIAL OFFICERS TO SERVE AS HEARING EXAMINERS WITHIN THE CITY OF WINSLOW: ESTABLISHING THE PROCEDURES FOR CONDUCTING CERTAIN PUBLIC HEARINGS, PROVIDING FOR THE APPOINTMENT AND COMPENSATION OF JUDICIAL OFFICERS TO BE DESIGNATED "HEARING EXAMINERS", AND REPEALING ORDINANCES 69-19, 76-19, 77-22, 77-23, 77-24, 78-25, 78-26, SECTIONS 4, 5~ AND 6 OF ORDINANCE 77-1 AND SECTION 8 OF WINSLOW ORDINANCE 77-7. The City Council of the City of Winslow DO ORDAIN as follows: SECTION 1. POLICY Because public hearings in quasi-judicial and administrative matters generally involve disputed issues, it is determined that it is in the best interests of the residents of the City of Winslow to create judicial officers (hereinafter "HEARING EXAMINERS") whose ~uty shall be judicial in nature and established by Court Rules as adopted by the Municipal Court or fixed by this Ordinance all pursuant to the provisions of RCW 35A.63.170. Whenever any Ordinance of the City of Winslow requires a public hearing, except as set forth in Section 4 hereof, such hearings shall be conducted according to the procedures established herein. SECTION 2. APPOINTMENT OF HEARING EXAMINER The Hearing Examiner shall be appointed by the Mayor, confirmed by the City Council, and shall serve for a term of four (4) years. The appointed Hearing Examiner shall be removed only upon conviction of misconduct or malfeasance in office or because of physical or mental disability rendering him or her incapable of performing the duties of his or her office. The compensation of the Hearing Examiner shall be determine~ by the City Council but may not be diminished during his or her term of office. The office of the Hearing Examiner may be abolished before termination of the term if the City enters into a joint intergovernmental agreement with any other - 1 - City or Kitsap County to provide for a joint Hearing Examiner procedure. The Hearing Examiner shall be deemed a Judge Pro Tem of the Municipal Court and the office shall constitute a division thereof. The duties and responsibilities of the Hearing Examiner shall be judicial in nature and shall be fixed by court rule of the Municipal Court or by Ordinance of this City. SECTION 3. NON-INTERFERENCE No person shall interfere with or attempt to influence the Hearing Examiner in the performance of his or her duties except at a public hearing, nor shall the Hearing Examiner discuss the merits of any pending cases with any other persons except at a public hearing. Any violation of this provision shall be deemed a misdemeanor and may be punished by a fine of not more than five hundred dollars ($500.00) or imprisonment in the City jail for not more than six (6) months, or both such fine and imprisonment. SECTION 4. LEGAL COUNSEL FOR HEARING EXAMINER General legal advice to the Hearing Examiner will be provided by the City Attorney except that in a contested case wherein the City will be represented by the City Attorney, the Hearing Examiner may, with the concurrence of the Municipal Judge, appoint independent counsel to render legal advice to the Hearing Examiner, the cost of which shall be borne by the City. SECTION 5. CONSOLIDATION OF HEARINGS Whenever an individual project involves applications for two or more separate kin~s of approval or permits requiring hearings under the provisions of this Ordinance, such applications may be consolidated and considered at the same hearing. - 2 - SECTION 6. LEGISLATIVE PUBLIC HEARINGS All requests for amendments to the Comprehensive Plan, Official Zoning Map, or Official Zoning Ordinance initiated by the City Council or any City Official in his or her official capacity shall be first sent to the Planning Agency for review. Upon receipt of any request, or upon its own initiative, the Planning Agency shall, within forty-five (45) days of receipt thereof, hold a public hearing on the request, prepare its Written Findings, Conclusions and Recommendation on the request, and shall. transmit them to the City Council for final action. In addition, at the date of such transmittal to the City Council, the Planning Agency shall give notice of its Findings, Conclusions and Recommendat]on to any ~nterested person who so requests at the time of the public hearing. Upon receipt by the City Council of the Recommendation of the Planning Agency, the City Council may, but is not required to, hold ~dditional public hearings in the same manner as provide~ herein. In addition, for a period of thirty (30) days following its receipt of the Findings, Conclusions and Recommendation of the Planning Agency, the City Council shall permit those interested parties who requested notice of the Recommendation of the Planning Agency, to submit additional written information including briefs regarding the requested amendment. If such parties desire to submit a verbatim transcript of the Planning Agency public hearings, they may do so, providing that they pay all costs incurred by the City in transcribing and copying the same. In addition, the Council may, if it so desires, call for oral argument. Thereafter, the City Council shall consider the Findings, Conclusions and Recommendation of the Planning Agency as well as all further informat]on and arguments submitted by interested parties and shall either accept, reject, modify or send back to the Planning Agency for further consideration the Recommendation received from the Planning Agency. - 3 - In those instances where the City Council rejects or modifies the Recommendation of the Planning Agency, it shall prepare written Findings and Conclusions supporting its decision. In those instances where the City Council accepts the Recommendation of the Planning Agency, it may adopt by reference the Planning Agency's Findings and Conclusions and may make any additional Findings it deems necessary. Upon acceptance or modification of any Recommendation for amendment to the Official Zoning Map, Zoning Ordinance or Comprehensive Plan, the City Council shall adopt the necessary Ordinance which shall be transmitted to the City Clerk and posted or published in the manner provided by law. SECTION 7. QUASI-JUDICIAL ADVISORY HEARINGS All applications for Rezones, Planned Unit Developments, Development in Zones of Special SigDificance and Permits issued pursuant to the Shorelines Management Act which under the terms thereof or the regulations of the Department of Ecology require a Public Hearing, shall be referred to the Planning Agency for review and Recommendat]on. Within thirty (30) days after referral of any application to the Planning Agency, the Planning Agency shall review said application and prepare a formal Recommendation which shall be transmitted to the Hearing Examiner along with all pertinent written materials in the record as developed by the Planning Agency and/or the City Engineer. With].n thirty (30) days of his or her receipt of the Recommendation of the Planning Agency, the Hearing Examiner shall conduct a Public Hearing on such application in the manner provided by this Ordinance. Within thirty (30) days of the completion of the Public Hearing, the Hearing Examiner shall make Findings, Conclusions and Recommendation which shall be transmitted to the City Council. A copy of the Findings, Conclusions and Recommendation shall be transmitted to the applicant as well as to major participants in the hearing, as designated by the Hearing Examiner. - 4 - Upon receipt of the Findings, Conclusions and Recommendation of the Hearing Examiner, the City Council may, but is not required to, hold additional public hearings in the same manner as provided herein. In addition, for a period of thirty (30) days following its receipt of the Findings, Conclusions and Recommendation of the Hearing Examiner, the City Council shall permit those interested parties who requested notice of the Recommendation of the Hearing Examiner to submit additional written informat]on, including legal briefs, regarding the application. If such parties desire to submit a verbatim transcript of the public hearing held by the Hearing Examiner they may do so, providing that they pay all costs incurred by the City in transcribing and copying the same. In addition, the Council may, if it so desires, call for oral argument. Thereafter, within sixty (60) days of its receipt of the Findings, Conclusions and Recommendation of the Hearing Examiner or within thirty (30) days of the completion of any additional public hearings held by the City Council, whichever is later, the City Council shall take final act]on on the application and may affirm, modify or reject the Recommendation of the Hearing Examiner or refer the matter back to the Hearing Examiner for further hearings and recommendation. On any action taken on applications for permits issued pursuant to the Shorelines Management Act, the City Council shall prepare written Findings, Conclusions and a final Order and shall transmit the same to all persons who submitted written comments OD the application. On all other applications submitted under the provisions of this section, the City Counci]_ shall follow the applicable procedure set forth below: (A) In those instances where the City Council determines to approve the Findings, Conclusions and Recommendation of the Hearing Examiner, it may by reference adopt the Hearing Examiner's Findings and Conclusions as its own and may make any additional Findings it deems necessary. - 5 - (B) In those instances where the City Council determines to modify or reject the Findings, Conclusions and Recommendation of the Hearing Examiner, it shall prepare its own written Findings and Conclusions in support of its decision. Any decision of the Cjty Council shall be final unless an adverse party, within ten (10) days after such decision is made, appeals the decision to the Superior Court for Kitsap County. SECTION 8. ADMINISTRATIVE HEARINGS All petitions for variances from tbe Zoning Ordinance, Conditional Use Permits, and other land use decisions designated by the City Council shall be filed with the City on forms provided by the City. The petitions shall then be transmitted to the Planning Agency for review and recommendation. Within thirty (30) days after receipt thereof, the Planning Agency shall prepare a formal recommendation on the application and refer the matter to the Hearing Examiner for public hearing along with all pertinent written materials in the record as developed by the Planning Agency and/or the City Engineer. All administrative hearings held and all hearings on appeals of administrative decisions made by the City in the course of administering the Shoreline Management Act and Winslow Ordinance 77-1, the SEPA Ordinance (Winslow Ordinance 76-1), and the Short Plat Ordinance (Winslow Ordinance 75-7 as amended by Winslow Ordinance 77-23), shall be conducted by the Hearing Examiner without prior referral to the Planning Agency. All administrative hearings and a]] appeals of administrative decisions made in the course of administering the Uniform Building Code (Winslow Ordinance 78-28), shall be held in accordance with the procedures set forth in Winslow Ordinance 78-28. All appeals of other administrative decisions shall be referred directly to the City Council for determination of the - 6 - necessity of holding a public hearing. In the event the City Council deems a public hearing necessary, it shall refer the matter directly to the Hearing Examiner for public hearing in accordance with this section. In those instances where the City Council deems no public hearing necessary, it shall. render a decision on the appeal, which decision shall be appealable to Kitsap County Superior Court. Upon completion of any public hearing held pursuant to this section, the Hearing Examiner shall make Findings, Conclusions and a decision on the application. A copy of the Findings, Conclusions and Recommendation shall be transmitted to the applicant as well as to major participants in the hearing, as designate~ by the Hearing Examiner. Any ~ecision of the Hearing Examiner shall be final unless w~thin ten (10) days after filing of said decis]on, either the applicant or other interested party appeals the decision to the City Council, or the City Council by majority vote determines to review the decision of the Hearing Examiner. Upon either the receipt of any Notice of Appeal or the determination of the City Council by majority vote to review the Hearing Examiner's decis]on, the decision of the Hearing Examiner, together with the complete recor~ thereof, shall be transmitted to the City Council. For a period of thirty (30) days following the appeal of or determination to review the decision of the Hearing Examiner, the City Council shall permit interested parties to submit additional written information, including legal briefs regarding the appealed decision. If such parties desire to submit a verbatim transcript of the public hearing held by the Hearing Examiner, they may do so, providing that they pay all costs incurred by the City in transcribing and copying the same. In addition, the Council may, if it so desires, permit oral argument on the appeal. At the conclusion of this thirty (30) day period, the City Council shall at a public meeting, either regularly scheduled or specially called, hear any oral argument which it bas - 7 - requested or permitted and review the complete record, the Findings, Conclusions and decision of the Hearing Examiner and any additional written materials submitted by interested parties. The City Council shall then accept, modify, reject or refer back to the Hearing Examiner for further proceedings any decision of the Hearing Examiner. In those instances where the City Council determines to accept the Findings, Conclusions and Recommendation of the Hearing Examiner, it may by reference adopt the Hearing Exam]ner's Findings and Conclusions as its own. In those instances where the City Council determines to modify or reject the Findings, Conclusions an~ Recommendation of the Hearing Examiner, ].t shall prepare its own written Findings and Conclusions in support of its ~ecision. Any decision of the City Council shall be final unless an adverse party, within ten (10) days after such decision is made, appeals the decision to the Superior Court for Kitsap County. SECTION 9. PROCEDURE FOR COMMENCING APPEAL No appeal contemplated under the terms of this Ordinance shall be considered commeDced until the applicant has filed with the appropriate appellate body a written notice of appeal, together with a precise statement of the questions to be considered on appeal. SECTION 10. SCOPE OF REVIEW OF THE CITY COUNCIL AND HEARING EXAMINER ON APPEALS OF ADMINISTRATIVE DECISIONS In reviewing the a~ministrative decisions made by officers and employees of the City of Winslow, the City Council and the Hearing Examiner shall have the following review: The applicable body shall review de novo the procedures followed by the official or employee in reaching his or her decision and shall determine whether those procedures fulfill the requirements imposed by law. - 8 - The applicable body shall determine whether any declaration o£ negative significance made by an officer or employee is clearly erroneous. The applicable body shall determine whether any decision made by an officer or employee after full compliance with all applicable procedural and legal requirements is arbitrary and capricious. SECTION 11. OTHER HEARINGS (A) All hearings relating to the subdivision of land shall be held in accordance with the provisions of Winslow Ordinance 77-7. (B) All hearings relating to the existence of signs within the City of Winslow shall be held in accordance with the provisions of Winslow Ordinance 79-9. (C) All hearings relating to the annexation of land by the City of Winslow shall be held in accordance with RCW 35A.14. SECTION 12. MODIFICATION OF DECISIONS At any time after filing its decision, the deciding body may correct the decision to eliminate typographical, clerical and any other errors which are obvious on the face of the decision. The deciding body shall make no substantive modification of its decision without additional public hearing for which notice has been given as set forth in Section 11 of this Ordinance. SECTION 13. NOTICE Notice of the time, place, and purpose of hearings held pursuant to this Ordinance on the following topics shall be given in the following manner: (A) Annexations. Notice shall be given in accordance with the requirements of RCW 35A.14. (B) Appeals of General Administrative Decisions not Otherwise Specifically Enumerated in this Section 11. - 9 - Hearings on all Other Administrative Matters not Specifically Enumerated in this Section 11. Amendments to the Zoning Map and Zoning Ordinance Proposed by a City Official in his Official Capacity. Short Plats. Variances from the Sign Ordinance. Amendments to the Comprehensive Plan. Notice shall be given by publication in a newspaper of general circulation in the City not less than ten (10) days before the date of the proposed hearing. (C) Variances from the Zoning Ordinance. Conditional Use Permits. Planned Unit Developments. Development in Zones of Special Significance. Rezones. Notice shall be given as in Paragraph (B) above and in addition shall be given by public posting in at ]_east three conspicuous locations in the vicinity of the property involved. Such notice shall be given in not less than ten (10) days before the date of proposed hearing. (D) Subdivision of Land. Paragraphs B and C above. Notice shall be given as in In addition, the notice shall include a legal description of the location of the proposed subdivision and either a vicinity location sketch or a location description in nonlegal language. (E) Matters Arising Pursuant to the Shorelines Management Act. Notice shall be given by publication at least once a week on the same day o£ the week for two consecutive weeks in a newspaper of general circulation within the county and city. In addition notice shall be giveD by one of the following methods: (1) MailiDg to the latest recorded real property owners as shown by the records of the County Assessor within at least three hundred (300) feet of the boundary of the property upon which the substantial development is proposed; - 10- (2) Posting in a conspicuous manner on the property upon which the project is to be constructed, or; (3) Any other manner deemed appropriate by the Planning Commission to accomplish the objectives of reasonable notice to the adjacent landowners and to the public. Such notices shall include a statement that within thirty (30) days of the final publicat]on any interested person may submit his written views upon the application to the Planning Commission or Dotify the Planning Commission of his desire to receive a copy of the action taken upon the application. (F) Matters Arising Pursuant to the SEPA Ordinance (76-11). Notice shall be given by publication at least once a week on the same day of each week for two consecutive weeks in a newspaper of general circulation in the County and City. In addition, for hearings regarding proposed actions of a project nature, notice of the hearing, shall be given by one of the following methods: (1) Mailing to the latest recorded real property owners, as shown by the records of the County Treasurer, who share a common boundary line with the property upon which the project is proposed through United States mail, first class, postage prepaid. (2) Posting of the notice in a conspicuous manner on the property upon which the project is to be constructed. (G) Amendment of Notice Provisions in other Ordinances. The notice provisions of other Ordinances, which notice provisions are inconsistent with the applicable provisions of this Section 11 are deemed amended to conform to the provisions of this Sect]on 11. SECTION 14. FEES In order to partially defray the costs of reviewing applications an~ conducting the hearings required under the provisions of this Ordinance, fees shall be imposed upon the applicants. Fees shall be imposed as set forth in Paragraphs - 11 - 12 (A) through 12 (I) below, except that whenever applications for two or more types of action are consolidated and considered at the same hearing, only one of the applicable fees shall be imposed, whichever is greater. (A) REZONES: A sum of $200.00 plus $10.00 for each acre of property to be rezoned. (B) PLANNED UNIT DEVELOPMENTS: A sum of $200.00 plus $10.00 for each acre of property contained in the proposed Planned Unit Development. (C) PERMITS ISSUED PURSUANT TO THE SHORELINES MANAGMENT ACT: A sum of $200.00. (D) DEVELOPMENT IN A ZONE OF SPECIAL SIGNIFICANCE: A sum of $200.00 plus $10.00 per acre for each acre of property within the proposed development. (E) VARIANCES: A sum of $75.00 if the proposed variance effects less than 10% of the subject property. The sum of $100.00 if the proposed variance effects 10% or more of the subject property. (F) CONDITIONAL USE PERMITS: A sum of $200.00 plus $10.00 per acre for each acre of property for which the conditional use is to be granted. (G) APPLICATIONS FOR OTHER LAND USE DECISIONS ADMINISTERED PURSUANT TO PARAGRAPH 1 OF SECTION 8 OF THIS ORDINANCE: A sum of $200.00 plus $10.00 per acre for each acre subject to the decision plus $15.00 to offset the cost of preparation of an Environmental Checklist. (H) APPLICATIONS FOR OTHER ADMINISTRATIVE HEARINGS AND APPEALS OF ADMINISTRATIVE DECISIONS ADMINISTERED PURSUANT TO PARAGRAPHS 2 AND 4 OF SECTION 8 OF THIS ORDINANCE: A sum of $50.00 plus such other costs as the Hearing Examiner may impose at the time of his or her final decision. The He~ring Examiner shall have discretion to assess against the non-prevailing party the actual cost of the public hearing. In those instances where the applicant is represented at the hearing and the City feels it necessary to require the attendance of its - 12 - own attorney, the Hearing Examiner shall require any non-prevailing applicant to reimburse the City for the attorney's fees the City has incurred for its attorney's preparation for and attendance at the hearing. (I) PETITIONS FOR ANNEXATION: A sum of $200.00 plus $10.00 per acre for each acre for which annexation is proposed. SECTION 15. REPEAL OF PRIOR ORDINANCES Winslow Ordinances 69-19, 76-19, 77-22, 77-23, 77-24, 78-25, 78-26 and Sections 4, 5, and 6 of Winslow Ordinance 77-1, and Section 8 of Winslow Ordinance 77-7, are hereby repealed. SECTION 16. SEVERABILITY It is the intention of the City Council that each separate provision of this Ordinance shall be deemed independent of all other provisions herein, and it is further the intention of the City Council that if any provision of this Ordinance be declared invalid, all other provisions hereof shall remain valid and enforceable. SECTION 17. EFFECTIVE DATE This Ordinance shall be in full force and shall take effect five (5) days after its publication or posting as required by law. PASSED by the City Council of the City of Winslow, ATTEST: ~ ~ · - 13 - ~ '~ APPROV. D S TO FORMS: V~ ~ R S OF MCKISSON, LEHNE AND ASSOCIATES CITY ATTORNEYS MEMO Dear Councilmembers, The Hearing Examiner Ordinance has been placed on the December 3rd Council Agenda for reconsideration. It appears that the items that were verbally presented at the Nove~er 16th meeting should be open for public comment and further Council discussion. Enclosed in your Council packet is a complete copy of the draft Hearing Examiner Ordinace. I have sent Walt a copy of it for his input which I will present at the meeting. Please be prepared to discuss any and all oarts of the draft ordinance. If you have proposed revisions which are extensive it always helps to have a written copy. The major reason that this ordinance was redrafted was to incorporate all of the various amendments to the original ordinance and the original ordinance all in one place, Thanks, Alice ~