RES 2003-14 HEARING EXAMINER RECOMMEDED RULES OF PROCEDURERESOLUTION NO. 2003-14
A RESOLUTION of the City of Bainbridge Island, Washington,
adopting recommended rules of procedure for the office of the Hearing
Examiner; repealing Resolution No. 97-42.
WHEREAS, the office of the Hearing Examiner is established by Chapter 2.38
BIMC to conduct certain quasi-judicial matters and hearings; and
WHEREAS, rules of procedure will facilitate and expedite such matters and
hearings; and
WHEREAS, the rules of procedure attached as Exhibit A are intended to be
consistent with Chapter 2.16 BIMC, relating to land use permit review and appeal
procedures; now, therefore
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND,
WASHINGTON, DOES RESOLVE THAT:
Section 1. The City Council adopts the Rules of Procedure attached as Exhibit
A to this resolution as recommended rules of procedure for the conduct of hearings
before the Hearing Examiner. The Hearing Examiner shall adopt these rules in their
entirety, modify them as desired or develop a new set of Rules of Procedure; provided,
that if the Hearing Examiner does not adopt modified or new Rules of Procedure within
30 days of being confirmed by the City Council, the Hearing Examiner shall be
deemed to have adopted the Rules of Procedure attached as Exhibit A. The adopted
Rules shall be binding upon the conduct of the Examiner.
Section 2. Resolution No. 97-42 is repealed.
PASSED by the City Council this 23rd day of April 2003.
APPROVED by the Mayor this 25' day of April 2003.
Darlene Kordonowy,
ATTEST/AUTHENTICATE:
USAN P. KASPER, City Clerk
FILED WITH THE CITY CLERK: April 4, 2003
PASSED BY THE CITY COUNCIL: April 23, 2003
RESOLUTION NO: 2003-14
EXHIBIT A
RULES OF PROCEDURE FOR
PROCEEDINGS BEFORE THE HEARING EXAMINER
OF CITY OF BAINBRIDGE ISLAND, WASHINGTON
CHAPTER I: GENERAL
SECTION 1: APPLICATION
This Chapter applies to all hearings that are required by the City Code to be held before
the Hearing Examiner.
SECTION 2: NATURE OF PROCEEDINGS
2.1 Expeditious Proceedings
It is the policy of the Hearing Examiner that, to the extent practicable and
consistent with requirements of law, all hearings shall be conducted
expeditiously. In the conduct of such proceedings the Examiner, City staff, and
all parties, or their agents, shall make every effort at each stage of a proceeding
to avoid delay.
2.2 Frequency
Hearings before the Examiner shall be scheduled on an as -needed basis. Each
matter shall be noted to commence at a particular time.
2.3 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 will be easily
ascertainable by a reviewing body. The format will allow development of a
record by parties.
2.4 Site Inspection
When deemed necessary by the Hearing Examiner, the Examiner may inspect
the site prior or subsequent to the hearing.
2.5 Record of Hearing
a. Record. Hearings shall be electronically recorded and such recordings
shall be a part of the official case record. Copies of the electronic
recording of a particular proceeding shall be made available to the public
five business days after a request. The reasonable cost of such copying
shall be paid by the requester. No minutes of the hearing will be kept.
b. Copies of any written materials in the record may be obtained by any
person upon payment of the cost of reproducing the material.
2.6 Computation of Time
Computation of any period of time prescribed or allowed by these rules shall
begin with the first day following that on which the act or event initiating the
period of time occurred. When the last day of the period so computed is a
Saturday, Sunday or a city, national or state holiday, the period shall run until
the end of the next following business day.
SECTION 3: DEFINITIONS
"Appellant" means a person, organization, association or other similar group
who files a complete and timely appeal of a decision.
"Applicant" means a person 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 or approval.
"BIMC" means City of Bainbridge Island Municipal Code.
"Comprehensive plan" means the comprehensive plan that has been adopted by
the city.
"City" means City of Bainbridge Island, Washington.
"Hearing" means the proceeding at which testimony or documents are presented
as evidence to the examiner or council.
"Examiner" means the hearing examiner of the City of Bainbridge Island.
"Party of interest" means any individual, partnership, corporation, association,
or public or private organization that may be affected by proceedings before the
examiner. The term includes a "party of record" as defined herein.
"Notice of decision" means a written document that communicates a decision of
the administrator, examiner or council.
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"Party of record" means:
a. For an open record hearing on a permit application:
1. the applicant;
2. the city; and
3. a person who testifies at the hearing or who submits written
testimony for consideration at the hearing.
b. For an open record appeal of an administrative decision:
1. the applicant;
2. the appellant;
3. the city;
4. any intervenors allowed by the hearing examiner to join as a
party.
"Record" means the oral testimony and written exhibits submitted at the
hearing. The tape recording of the proceeding shall be included as part of the record.
SECTION 4: PARTIES' REPRESENTATIVE REQUIRED
When a parry 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 Examiner of the name, address and telephone number of
that designated representative. The rights of such party shall be exercised by the
person designated as the parry representative. Except as otherwise provided in these
rules, notice or other communication to the party representative is considered to be
notice or communication to party.
SECTION 5: PRESIDING OFFICER
The Hearing Examiner shall preside over the hearing. The Hearing Examiner shall
have all of the authority and duties granted to the Examiner in state statutes, the City
code, and other City ordinances. Included in the duties of the 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 Examiner has all
powers necessary to that end, including the following:
a. to administer oaths and affirmations;
b. to issue subpoenas;
C. to rule upon offers of proof and receive evidence;
d. to regulate the course of the hearings and the conduct of the parties and
their agents;
e. to question any party at the hearing,
f. to hold conferences for settlement, simplification of the issues, or any
other proper purpose;
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g. to require briefs on legal issues;
h. to consider and rule upon all procedural and other motions appropriate to
the proceedings; and
i. to make and file recommendations or decisions.
SECTION 6: CONFLICTS
These rules of procedure are adopted to supplement the requirements of the City code.
In the event that there are any conflicts between these rules and the provisions of the
City code, the provisions of the City code shall prevail.
CHAPTER II: OPEN RECORD HEARINGS ON PERMIT APPLICATIONS
SECTION 1: APPLICATION
This Chapter applies to open record hearings on land use applications that are required
by the City Code to be held before the Hearing Examiner.
SECTION 2: RIGHTS OF PARTIES
2.1 Rights of City
The City staff shall have the right to present evidence and testimony, cross-
examine witnesses, object, and make motions, arguments, and
recommendations.
2.2 Rights of Applicant
Every Applicant shall have the right to notice of the hearing, present evidence
and testimony, cross-examine witnesses, object, and make motions and
arguments.
2.3 Rights of Parties of Record
All Parties of Record have the right to present evidence and testimony, cross-
examine witnesses, object, and make motions and arguments.
2.4 Presence of Legal Counsel at Hearings or Meetings
a. Although representation by legal counsel is not required, all parties
participating in the hearings may be represented at any stage of the
proceeding by legal counsel of their choice.
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b. At the request of the City staff or the Examiner, a representative of the
City Attorney's Office may be present at any stage of the proceedings to
advise on matters of law and procedure.
2.5 Notwithstanding the provisions of paragraphs 2.1, 2.2, and 2.3, the Examiner
may impose reasonable limitations on the number of witnesses heard, and on the
nature and length of their testimony. Cross-examination is permitted as
necessary for a full disclosure of the facts, but the Examiner shall control the
amount and style of cross-examination.
SECTION 3: RESPONSIBILITIES OF PARTIES
3.1 Responsibilities of City Staff
The City staff shall provide a staff report consistent with the City code. The
staff report shall be available for review and copying at least seven days prior to
the hearing. The City staff shall also present materials at the hearings; provide
the Examiner with documentation relevant to the proceedings, and be courteous
to all persons participating in the proceedings.
3.2 Responsibilities of Applicant
The Applicant shall, seven days prior to the hearing: provide the Examiner with
written material that supports the application; be prepared for questions by the
Examiner; and, be courteous to all persons participating in the proceedings.
3.3 Responsibilities of Other Parties of Interest
All persons who attend a hearing shall conduct themselves with civility and deal
courteously with all involved in the proceedings. Failure to do so may result in
the Examiner removing the person from the hearing.
3.4 All briefs and other legal memoranda upon which a Party of Record knows the
party will be presenting at the hearing must be submitted to the Examiner and
all Parties of Record at least seven days in advance of the scheduled hearing
date. The above mentioned documents shall be available to the public at least
seven days in advance of the scheduled hearing date. This paragraph does not
prohibit the Examiner from allowing a party to submit materials at a later date.
SECTION 4: CONDUCT OF HEARINGS
4.1 Affidavit of Notice
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An affidavit attesting to the notice given of a hearing (including dates and places
of publication and list of those mailed to) shall be part of each official case
record.
4.2 Preheating Conference
a. The Examiner may, on his/her own order, or at the request of a Party of
Record, hold a conference prior to the hearing. At the preheating
conference, the Examiner may require:
1. Identification, clarification, or simplification of the issues;
2. Disclosure of witnesses to be called and exhibits to be presented;
3. Presentation of motions to be decided;
4. Other matters deemed by the Examiner to be appropriate for the
orderly and expeditious disposition of the proceedings.
b. Preheating conferences may be held by telephone conference call.
C. The Examiner shall give notice to all parties of record of any preheating
conference. Notice may be written or oral.
d. All Parties of Record shall be present at any prehearing conference
unless the party waives the right to be present or represented at the
conference.
e. Following the preheating conference, the Examiner shall issue an order
reciting the actions taken or ruling on motions made at the conference.
4.3 Oath or Affirmation
All testimony before the Examiner shall be given under oath or affirmation to
tell the truth. The Examiner shall administer the oath or affirmation.
4.4 Content of the Record
The record of a hearing conducted by the Examiner shall include, but not be
limited to, the following materials:
a. the application;
b. the Departmental staff reports;
C. all evidence received which shall include oral testimony given at the
hearing, and 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 Examiner;
f. official recordings made on electronic equipment; and
g. an environmental determination made pursuant to the State
Environmental Policy Act of 1971 (SEPA) (if applicable).
4.5 Development of Record at the Hearing
A hearing will usually include, but not be limited to, the following elements: a
brief introductory statement by the Examiner regarding the procedures before
the Examiner; an introductory statement by the City staff that may include
submission of the staff report with exhibits, reference to visual aids and a
summary of the staff recommendation, testimony and submission of other
evidence by the Applicant, testimony of Parties of Interest; opportunity for
cross-examination and rebuttal; and, opportunity for questions by the Examiner.
4.6 Content and Form of Staff Reports
The staff report on a land use application shall include the following:
a. Names and addresses of the owner(s) and Applicant(s) 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 a statement as to
which code regulations apply to the application
C. A common description of the subject property and a legal
description of the subject property. If necessary due to length, the
legal description may be included as an appendix.
d. A summary of the Comprehensive Plan designation and zoning
designation of the subject property; the current uses on the subject
property and the adjoining properties; topographical information;
geological and soils information; information on the vegetation on
the property, information on available services and utilities, and
other site characteristics.
e. The current and proposed access to the subject property.
f. An analysis of the proposed project as to its consistency with the
relevant criteria for review of the application.
g. A summary of any other requested land use permits in the area.
h. A summary of recommendations made by any agencies consulted
on the project, and a list of any reports submitted by the agencies.
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i. Maps as specified in the submittal requirements contained in the
zoning chapter(s) relevant to the specific development application.
j. The result of the determination pursuant to the State
Environmental Policy Act (SEPA).
k. Staffs recommendations as to the consistency of the application
with the relevant criteria and any necessary conditions that should
be applied to any approval of the application.
1 A brief summary of issues raised in public comment, with copies
of written comments attached.
4.7 Continuances of Hearings
a. If, in the opinion of the Hearing Examiner, more information is
necessary in order to make a recommendation or decision, or the
Examiner is unable to hear all of the public comments on the matter, the
Examiner may continue the hearing to a specified date.
b. Any Party of Record may request continuance of a hearing. The
request, if made prior to the hearing, must be in writing and state
reasonable grounds for a continuance. The Examiner shall have
discretion to grant or deny the request for continuance.
C. If the hearing is continued prior to the commencement of the hearing, the
new hearing time and place shall be posted on the door of the hearing
facility on the original hearing date. If the hearing is continued to a
specific time and place during the hearing, the new hearing time and
place shall be posted on the City's website.
4.8 Evidence
a. Burden of proof. In each proceeding for review of an application, the
Applicant shall have the burden of proof to show compliance with
applicable laws and regulations of Washington State and City of
Bainbridge Island.
b. Admissibility. The hearing generally will not be conducted according to
strict legal rules relating to evidence and procedure. Any relevant
evidence shall be admitted if it is the type that possesses value commonly
accepted by reasonably prudent persons in the conduct of their affairs.
The Examiner shall have discretion on the admissibility of all evidence.
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C. Copies. Documentary evidence may be received in the form of copies if
the original is not readily available. Upon request, parties shall be given
opportunity to compare the copy with the original. The party offering
the document into evidence shall provide an extra copy of the document
to the Examiner as a working copy.
d. Judicial notice. The Examiner may take judicial notice of generally
accepted facts. The Examiner shall not take judicial notice of any
disputed adjudicative facts that are at the center of the proceeding.
e. The Examiner may request that a document be filed after the close of
public testimony. Only those documents referred to at the hearing may
be submitted after the hearing and only those specifically requested by
the Examiner. If a document is submitted after the close of public
testimony, the Examiner may allow other Parties of Record a reasonable
opportunity to comment on the document.
f. After the public hearing is closed, additional evidence may only be
submitted upon a motion for reconsideration based on new evidence not
reasonably available at the time of the hearing. If additional evidence is
submitted with a motion for reconsideration, the additional evidence 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.
g. 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 5: WITHDRAWAL OF APPLICATION
If the Applicant requests that the application be withdrawn at any time prior to
the issuance of a decision by the Hearing Examiner, the application shall be
withdrawn. The Applicant shall remain responsible for the payment of fees and
costs already incurred by the City with respect to the application.
SECTION 6: RECOMMENDATIONS/DECISIONS
6.1 Written Recommendations
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For applications heard by the Examiner that require Council approval, a written
report of findings, conclusions and recommendations shall be forwarded to the
Council and the Parties of Record, within the time allowed by law or agreed to
by the Applicant and City. The findings, conclusions and recommendations
shall indicate how the recommendation meets the relevant goals, policies, plans
and requirements of the City code and other policies and objectives of the City
including the Comprehensive Plan.
6.2 Written Decisions
For all applications where the Examiner has final approval authority, a written
report of findings, conclusions and decision shall be forwarded to all Parties of
Record, within the time allowed by law or agreed to by the Applicant and the
City. The findings, conclusions and decision shall indicate how the decision
meets the relevant goals, policies, plans and requirements of the City code and
other policies and objectives of the City, including the Comprehensive Plan.
6.3 Content of Recommendation or Decision. The Examiner's recommendation or
decision shall include:
a. Summary of the Proceedings. This shall include a list of all exhibits
received and all persons who testified. A summary of testimony should
be given if relied upon in a Finding.
b. Findings. These shall be statements of verifiable fact relevant to the
criteria for review of the application. The findings shall be based
exclusively on the evidence presented in the hearing and those matters
officially noticed. A finding shall be made on each contested issue of
fact. Findings shall reference a specific exhibit or testimony in support
of the finding. On contested issues of fact, findings shall clearly
summarize all exhibits or testimony presented and shall reference the
specific exhibit or testimony used to support the finding.
C. Conclusions. Each conclusion shall be supported by a reference to a
Finding of Fact. The conclusions shall reference specific provisions of
the law and regulations when relevant to the decision.
d. Decision or Recommendation. A decision or recommendation on an
application may be to approve, deny or approve with conditions. Every
recommendation or decision shall be based upon a consideration of the
whole record and supported by substantial evidence.
6.4 Procedure for Reconsideration and Reopening Hearing
a. At any time prior to the filing of the final decision or recommendation,
the Examiner may reopen the proceeding for the submission of further
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evidence. All Parties of Record who participated 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. Reconsideration.
1. Any Party of Record may file a written request with the Examiner for
reconsideration of the Examiner's recommendation or decision within ten
(10) working days of the date of the Examiner's recommendation or
decision. The request shall explicitly state the alleged errors of
procedure or fact. The request may also include direction to a specific
issue that was inadvertently omitted from the Examiner's
recommendation or decision.
2. The Examiner shall act within five (5) working days after the date of the
filing of the request for reconsideration by either denying the request,
approving the request by modifying or amending the recommendation or
decision based on the established record, requesting written responses
from other Parties of Record, or setting the matter for an additional
hearing.
3. If an additional hearing is required the notice of said hearing shall be
mailed to all Parties of Record not less than five (5) working days prior
to the date of the new hearing.
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CHAPTER III: OPEN RECORD APPEAL HEARING
OF ADMINSTRATIVE DECISIONS
SECTION 1: APPLICATION
This chapter applies to open record appeals of administrative decisions that approve,
deny, or condition a land use permit application. An open record appeal hearing is one
where evidence is submitted for the record for the first time.
SECTION 2: PARTIES RIGHTS AND RESPONSIBILITIES
2.1 Although Appellants and Applicants have the right to be represented by an
attorney, representation by an attorney is not required.
2.2 All parties and others participating in and observing hearings shall conduct
themselves with civility and deal courteously with all persons involved in the
proceedings.
SECTION 3: FILING
3.1 Compliance with Rules
All appeals must comply with this chapter and with the requirements established
in the applicable City of Bainbridge Island ordinance(s) under which the appeal
is filed.
3.2 Timeliness
To be considered timely filed, an appeal must be received by the City Clerk or
other person designated in the City code no later than the last day of the appeal
period.
3.3 Fee
Any filing fee as required by the City shall accompany an appeal.
3.4 Contents
An appeal must be in writing, identify the decision appealed and the date of the
decision, and contain a summary of the grounds for the appeal.
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3.5 Appeal by Petition
Appellants may appeal by "petition", in which multiple persons or entities sign
one appeal statement. In the case of an appeal by petition, the Appellants shall
pay only one appeal fee. The Appellants shall comply with Chapter I, Section 4
of these Rules and designate one individual to be its representative for purposes
of the appeal proceedings; provided, that the City shall provide notice of the
appeal hearing to each Appellant signing and providing an address on the appeal
statement.
SECTION 4: DISMISSAL
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 Examiner has jurisdiction
to grant relief, or it is without merit on its face, frivolous, or brought merely to
secure delay.
4.2 Any Party of Record may request dismissal of all or part of an appeal at any
time with notice to all parties. The Examiner may make a ruling on a motion to
dismiss based upon written arguments or may call for oral arguments.
4.3 When decision or action being appealed is withdrawn by the issuing
Department, the appeal becomes moot and shall be dismissed.
SECTION 5: WITHDRAWAL
5.1 An appeal may be withdrawn only by the Appellant.
5.2 Where an appeal is made by several persons, a group, organization,
corporation, or other entity, withdrawal shall be made by the person who was
designated as the parry representative.
5.3 An Appellant's request to withdraw the appeal shall be granted as a matter of
right and the appeal dismissed.
SECTION 6: DEFAULT
6.1 The 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.
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SECTION 7: NOTICE OF HEARING
7.1 Contents
The notice of hearing given to Applicant and Appellant shall be given in
accordance with the City code.
7.2 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, the minimum notice shall be 10
days.
7.3 Responsibility
The Hearing Examiner shall be responsible for serving notice of hearing for
appeals.
7.4 Record of Notice
A copy of the notice of hearing shall be made part of each official case record.
SECTION 8: PREHEARING CONFERENCE
8.1 Prehearine Conference
a. The Examiner may, on his/her own order, or at the request of a Party of
Record, hold a conference prior to, the hearing. At the prehearing
conference, the Examiner may require:
1. Identification, clarification, or simplification of the issues;
2. Disclosure of witnesses to be called and exhibits to be presented;
3. Presentation of motions to be decided;
4. Other matters deemed by the Examiner to be appropriate for the
orderly and expeditious disposition of the proceedings.
b. Preheating conferences may be held by telephone conference call.
C. The Examiner shall give reasonable notice to parties of any preheating
conference. Notice may be written or oral.
d. All Parties of Record shall be represented at any prehearing conference
unless they waive the right to be present or represented.
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e. Following the prehearing conference, the Examiner shall issue an order
reciting the actions taken or ruling on motions made at the conference.
SECTTON 9: HEARING FORMAT
9.1 Appeal hearings, although generally informal in nature, shall have a structured
format and shall be conducted in a manner deemed by the Examiner to make the
relevant evidence most readily and efficiently available to the Examiner and to
provide the parties a fair opportunity for hearing.
9.2 The order of an appeal hearing will generally be as follows:
a. Examiner's introductory statement;
b. Background presentation by City staff,
C. Appellant's presentation;
d. City staff's presentation;
e. Applicant's presentation;
f. Rebuttal;
g. Closing argument of parties.
9.3 Notwithstanding the above provisions, the order of hearing may be modified or
a different order established as the Examiner deems necessary for a clear and
fair presentation.
9.4 The order of presentation at hearing shall not alter or shift any burden(s) or
presumption(s) established by applicable law(s).
SECTION 10: RECORD
10.1 The record of an appeal shall include:
a. The administrative decision or action being appealed;
b. Appeal statement;
C. Record of proceedings of decisionmaker;
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d. Tape recording of appeal hearing;
e. Written arguments submitted by parties.
f. The Departmental staff reports;
g. All evidence received which shall include oral testimony given at the
hearing, all exhibits and other materials admitted as evidence;
h. A statement of all matters officially noticed;
i. A decision or a recommended decision containing the findings and
conclusions of the Examiner; and
j. An environmental determination made pursuant to the State
Environmental Policy Act of 1971 (SEPA) (if applicable).
10.2 The Examiner's administrative file on an appeal case may include other
information or materials which are not part of the evidentiary record.
SECTION 11: EXAMINER'S DECISION
11.1 A decision of the Examiner on an appeal shall include, but not be limited to, a
statement regarding the following:
a. Background. The nature and background of the proceeding, including
identification of party representatives participating in the hearing,
preheating determinations, and other similar information.
b. Findings. The individual facts that the Examiner finds relevant,
credible, and requisite to the decision, based on the record of
proceedings.
C. Conclusions. Legal conclusions based upon specific provisions of law
and the findings of fact.
d. Decision. The Examiner's decision as to outcome of the appeal (affirm,
modify, reverse, or remand) based upon a consideration of the whole
record and supported by substantial evidence in the record, including any
conditions imposed as part of the decision.
e. Right to Appeal. A statement of the right a person with standing to
appeal the decision.
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SECTION 12: RECONSIDERATION
12.1 Reconsideration shall be granted by the Examiner on a showing of one or more
of the following:
a. Irregularity in the proceedings by which the moving party was prevented
from having a fair hearing;
b. Newly discovered evidence of a material nature which could not, with
reasonable diligence, have been produced at hearing;
C. Clear mistake as to a material fact.
12.2 Motions for reconsideration must be filed within ten (10) working days of the
date of the Examiner's decision. Unless otherwise specifically provided by the
applicable ordinance(s), the time for appealing a decision shall begin to run
upon the issuance of a decision on a motion for reconsideration that was filed in
a timely manner.
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