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RES 97-42 RULES AND PROCEDURES FOR THE OFFICE OF HEARING EXAMINERRESOLUTION NO. 97-42 A RESOLUTION of the City of Bainbridge Island, Washington, adopting rules of procedure for the office of the Hearing Examiner. WHEREAS, the office of the Hearing Examiner is established by BIMC 2.38 for the consideration of certain quasi-judicial matters and the holding of hearings; and WHEREAS, roles of procedure will facilitate and expedite such matters and hearings; now, therefore THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES RESOLVE THAT: Section 1. The Rules of Procedure for the conduct of hearings before the Hearing Examiner as set out in the Rules of Procedure attached to this resolution are adopted as the Rules of Procedure for the office of the Hearing Examiner. PASSED by the City Council this 5th day of January, 199~'. DWIGHT SUTTON, May"O~ ATTEST/AUTHENTICATE: SUSAN P. KASPER, City Clerk FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. 97-42 November 27, 1997 January 5, 199~ RULES OF PROCEDURE FOR PROCEEDINGS BEFORE THE EXAMINER OF CITY OF BAINBRIDGE ISLAND, WASHINGTON CHAPTER I: OPEN RECORD HEARINGS ON PERMIT APPLICATIONS Application of these Rules This Chapter applies to open record heatings on land use applications. SECTION 1: 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. "BI]VIC" means City of Bainbridge Island Municipal Code. "Council" means the City Council of City of Bainbridge Island. "Comprehensive Plan" means.the Comprehensive Plan that has been adopted by the City of Bainbridge Island. "City" means City of Bainbridge Island, Washington. "Ex parte communication" means written or oral communications to the Examiner or Council about a matter pending before the Examiner or Council not included in the public record and made outside of a hearing. "Hearing" means the proceeding at which testimony and exhibits of evidence are presented to the Examiner or Council. "Examiner", means the'Heatings 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 or Council. The term includes a "party of record" as defined herein. Rules OfProcedure Page 1 12/97 "Notice of Decision" means a written document that communicates a decision of the Administrator, Examiner or Counifl. "Party of Record" means: ao a person who testifies at a hearing; the Applicant; persons submitting written testimony about a matter pending Examiner or Council; the City. before the "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 2: .HJRISDICTION Jurisdiction of the Administrator, the Examiner and the Council is limited to those issues where ordinance or other appropriate authority grants the authority to make a decision, recommendation, or issue an order. 3.1 a. Co SECTION 3: EX PARTE COMMUNICATION No person, nor his or her agent, employee, or representative, who is interested in a particular petition or application currently pending before the Examiner or Council shall communicate ex parte, directly or indirectly, with the Examiner or Council concerning the merits of that or a factually related petition or application. This rule shall not prohibit ex parte communications concerning procedural matters. The Examiner or Council shall not communicate ex pane directly or indirectly with any person, nor his or her agent, employee or representative, interested in a particular petition or' application that is pending before the Examiner or Council with regard to the merits of that, or a factually related petition or application. If a prohibited ex parte communication is made to or by the Examiner or member 6f the Council, such communication shall he publicly disclosed, and proper discretion shall be exercised on whether to disqualify himself or herself for that particular heating. Rules of Procedure Page 2 12/97 SECTION 4: NATURE OF PROCEEDINGS 4.1 Ex?xlitious Proceedings 4.2 4.3 4.4 4.5 It is the policy of the Council and the 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 Council, the Examiner, City staff, and all parties, or their agents, shall make every effort at each stage of a proceeding to avoid delay. Frea_ueocy Hearings will normally be scheduled at 10:00 a.m. on the third Friday of each month. Each case shall be noted to commence at a particular time. 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 become available easily ascertainable by a reviewing body. The format will allow development of a record by parties. View Trip When necessary, the Examiner or Council may inspect the site prior or subsequent to the hearing. The view trip is not part of the record. Failure to inspect the site will not render the recommendation or decision void. Record of Hearin~ ao Record. Hearings shall be electronically recorded and such recordings shall be a part of the official case record. Copies of the electronic recordings of a particular proceeding shall be made available to the public within three business days of a request. The reasonable cost of such copying shall be paid by the requester. No minutes of the hearing will be kept. Copies of any written materials in the record may be obtained by any person who shall be responsible for paying the cost of reproducing such material. Rules ofProcedure Page 3 12/97 4.6 Computation of Time Computation of any period of time prescribed or allowed by these rules, ordinances of the City of Bainbridge Island and 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 City, national or State holiday, the period shall run until the end of the next following business day. In accordance with state statutes, a decision is not deemed final until three days following the date of the postmark of the mailing of the decision by the City. SECTION 5; RIGHTS AND RESPONSIBILITIES OF PARTIES 5.1 Rights of City_ The City staff shall have the right to present evidence and testimony, object, make motions, arguments, recommendations and all other rights essential to a fair hearing, 5.2 Ri£hts of Avplicant Every Applicant shall have the right of notice, cross-examination, presentation of evidence, objection, motion, argument, and ali other rights essential to a fair hearing. Further, the Applicant shall have right to timely access of the City's staff report. The Examiner or Council 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 or Council shall control the amount and style of cross-examination. 5.3 Rights of Parties of Interest Every party shall have the fight to present evidence and testimony at hearings. The right of parties to cross-examine, object, and submit motions and arguments shall be at the discretion of the Examiner or Council. The Examiner or Council may impose reasonable limitations on the number of witnesses heard and the nature and length of their testimony. 5.4 Res_~)onsibilities Of City_ Staff .. The City Staff shall: provide a staff report consistent with Rule 7.6; provide notice of hearings; present materials at the hearings; provide the Examiner or Council with documentation relevant to the case; and, be courteous to all who participate in these proceedings. Rule~ofProcedure Page 4 12/97 5.5 Responsibilities of Aoolicant and Appellant The Applicant shall, prior to the hearing: provide the Examiner or Council with material that supports his/her case; be prepared for questions by the Examiner or Council; and, be courteous to all who participate in these proceedings. An Appellant shall be required to provide a specific and understandable written statement of the issues of appeal. Such statement shall be submitted prior to the hearing. 5.6 Responsibilities of Citizens All persons who attend a hearing shall conduct themselves with civility and deal courteously with all involved in the proceedings. Failure to do so will result in removal from the hearing. SECTION 6: PRESIDING OFFICIALS Hearings shall be presided over by the Examiner or the presiding member of the Council, as specified in the BllVlC. The Examiner or Council shall have all of the authority and duties as granted him/her in state statutes, BIMC and other City ordinances. Included in the duties of the Examiner or Council are the following: to conduct fair and impartial hearings; to take all necessary action to avoid delay in thee disposition of proceedings; and, to maintain order. He/she shall have all powers necessary to that end, including the following: 2. 3. 4. to administer oaths and affirmations; to issue subpoenas; to nde upon offers of proof and receive evidence; to regulate the course of the hearings and the conduct of the parties and their agents; to question any party at the hearing; to' hold conferences for settlement, simplifieafiQn of the issues, or any other proper purpose; to require briefs on legal issues; to consider and rule upon all procedural and other motions appropriate to the proceedings; and, to make and file recommendations or decisions. Rules ofProcedure Page 5 12/97 6.2 Pre~ence of Legal Counsel at Hearines or Meetings Although representation by legal counsel is not required at the hearings, all parties participating in the hearings may be represented at the hearings by legal counsel of their choice. bo At the request of any department and discretion of the Examiner or Council, a representative of the City of Bainbridge Island Prosecuting Attorney's Office may be present at the hearings or meetings to advise on matters of law and procedure. 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 Examiner or Council's office at least one week in advance of the scheduled hearing date. The above mentioned documents shall be available to the public at least one week in advance of the scheduled hearing date. SECTION 7: CONDUCT OF HEARINGS 7.1 Notice Requirements of Hearings and Filings ao All notice and time requirements and methods of notification shall be consistent with the provisions as set forth in the BI/VIC. bo Affidavit of Notice: An affidavit attesting to the notice given of a hearing (including dates and places of publication and list of those mail~ to) shall be part of each official case record. 7.2 Preheating, Conference The Examiner or Council may, on his/her own order, or at the request of a party of record, hold a conference prior to ~the hearing. The purpose of a prehearing conference is to avoid .surprises at an appeal hearing. The Examiner or Council may require: 2. 3. 4. Identification, clarification, and simplification 9f the issues; Disclosure of wimesses to be.called and exhibits to be presented; Presentation of Motions to be decided; Other matters deemed by the Examiner or Council appropriate for the orderly and expeditious disposition of the proceedings. Rules of Procedure Page 6 12/97 7.3 7.4 bo eo Preheating conferences may be held by telephone conference Call. The Examiner or Council shall give notice to all paxties of any preheating conference. Notice may be written or oral. All parties shall be represented at any preheating conference unless they waive the right to be present or represented. Following the preheating conference, the Examiner or Council may issue an order reciting the actions taken or ruling on motions made at the conference. Oath or Affirmation All testimony before the Examiner or Council shall be given under oath or affirmation to tell the truth. Either the Examiner or Council or the clerk shall administer the oath or affirmation. Content of ~he Record The record of a hearing conducted by the Examiner or Council shall include, but not be limited to, the following materials: ao do the application or appeal petition; the Departmental staff reports; all evidence receive~ which shall include oral testimony given at the hearing, all exhibits and other materials admitted as evidence; a statement of all matters officially noticed; a decision or a recommended decision containing the timings and conclusions of the Examiner or Council; ,. recordings made on electronic equipment; and, an environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA) (if applicable). 7.5 Develonment of Record at the Hearim, A hearing usually will include, but not be limited to, the following elements: a brief introductory statement of the Examiner or Council process by the Examiner or Council; a report by the Departmental staff that may include introduction of the Staff Report with exhibits, r&ference to visual aids and a summary of file recommendation of the Department; testimony by the Applicant .or petitioner; testimony of persons with questions, comments or concerns about an application; opportunity for cross- examination and rebuttal; and, opportunity for questions by the Examiner or Council. Rules of Procedure Page 7 12/97 7.6 Content and Form of Staff Reoorts The staff report on a land use application/nay include the following, /f relevant to the application: 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. A brief summary of the requested action and the citation of the ordinance controlling the request specifying the relevant criteria upon which a decision must be based. A common description of the subject property and a legal description of the subject property. A statement as to which code regulations for City of Bainbridge Island apply to the request. A. 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. fo The current access to the subject property and the proposed access to the subject property. An analysis of the proposed project as to its consistency with the relevant criteria for review of the application. ho A history of the requested action and a history 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. ko The compatibility and impact of the proposal on the existing development and the probable character of the proposal. A summary of the reports or recommendations of any other agencies consulted. 1. Appropriate maps of the subject property. m. The result of the determination pursuant to the State Environmental Policy Act. RuleaofProcedure Page 8 12/97 7.7 7.8 Staff's 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. The staff report shall be distributed to the Examiner or Council, the Applicant and the public. Continuances of Hearin~,s Examiner r n il If, in the opinion of the Hearing Examiner or Council, more information is necessary in order to make a recommendation or decision, or he/she is unable to hear all of the public comments on the matter, the hearing may be continued with a certain date. If continued to a specific time and place, and posted on the door of the hearing room, no further notice of that hearing need be given. At the Request of a Party_ of Record 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 request must be reasonable. The Examiner or Council shall have discretion to grant or deny the request for continuance. Evidence 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. Admissibility. The hearing generally will not be conducted accord, lag 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 or Councli shall have discretion on the admissibility of all evidence. Copies. Documentary evidence may be received in the form of copies 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 an extra copy of all documents to the Examiner or Council as a working copy. Judicial notice. The Examiner or Council may take judicial notice of generally accepted facts. The Examiner or Council shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding. Rules of Procedure Page 9 12/97 The Examiner or Council 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 Examiner or Council. Additional evidence may only be submitted upon a Request for Reconsideration based on new evidence not 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. 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 8: WITHDRAWAL OF APPLICATION OR PETITION 8.1 With~irawal Prior to Service of Official Notice If a withdrawal request is made before the official notice of the hearing is given, the Applicant or petitioner shall notify the City of the withdrawal request and the withdrawal shall be automatically permitted. 8.2 Withdrawal Made Any Other Time If a withdrawal request is made at any time other than that mentioned in 8.1, the Examiner or Council shall use discretion in allow'rog or disallowing the request. SECTION 9: RECOMMENDATIONS / DECISIONS 9.1 Written Recommendations 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. The Examiner submittal shall be within the time allowed by law or agreed to by the Applicant and City of Bainbridge Island..The findings, conclusions and recommendations shall indicate how .the recommendation carries out the goals, policies, plans and requirements of the BIMC and other policies and objectives of the City. Rules ofProcedure Page 10 12/97 9.2 Written Decisions For all applications where the Examiner or Council has final approval authority, a written report of findings, conclusions and decision shall be made and forwarded to all parties of record. The Examiner or Council decision shall be within the time allowed by law or agreed to by the Applicant and the City of Bainbridge Island. The findings, conclusions and decision shall indicate how the decision carries out the goals, policies, plans and requirements of the BIMC and other policies and objectives of the City. 9.3 Content of Recommendation/Decision A recommendation/decision shall include: Summary of the Proceedings. This shall include a list of all exhibits received and all persons who testified. A summary of testimony should not be given unless relied upon in a Finding. 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 heating 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. Conclusions. Each conclusions 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. The Decision or Recommendation. A decision/recommendation on an application for permit approval may be to approve, deny or approve with conditions. Every recommendation/decision shall be based upon a ~nsideration of the whole record and supported by substantial evidence. 9.4 Procedure for Reconsideration and Reo_oenine Hearin~ At any time prior to the filing of the final decision or recommendation, the Examiner or Council 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. Reconsideration. Rules of Procedure Page 11 Any party of record may file a written request with the Examiner or Council for reconsideration within ten (10) working days of the date of the Examiner or Council's recommendation or decision. The request shall explicitly set forth alleged errors of procedure or fact. The request 12/97 may also include direction to a specific issue that was inadvertently omitted from the Examiner or Council's recommendation or decision. The Examiner or Council shall act within five (5) working days after the date of the filing of the request for reconsideration by either denying the request or approving the request by modifying or amending the recommendation / decision based on the established record or setting the matter for an additional hearing. 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 from the date of the Order of Examiner or Council. SECTION 10; APPEALS OF DECISIONS TO COUNCIL When all reconsideration periods have expired and the Examiner has issued a final decision, the decision may be appealed to the Appeals Examiner, Council or to Superior Court as specified in the BIMC. Appeals must be written and filed with the City Clerk within the time required by Ordinance. All appeals must clearly state the alleged errors of fact or law and include a specific request for relief. The reviewing body will not receive any additional testimony or evidence and will only review the record in the closed record appeal. SECTION 11: CONFLICTS These rules of procedure are adopted to supplement the requirements set forth of the BIMC. Any conflicts between these rules and the provisions of the BRdC will be decided consistent with the provisions of the BIMC. Rulea of Procedure Page 12 12/97 CHAPTER H: RULES OF APPEAL FOR OPEN RECORD APPEALS OF ADMINISTRATIVE DECISIONS Aoolication of these Rules This chapter applies to open record appeals of administrative decisions that approve, deny, or condition a land use permit application. An open record appeal is one where evidence is submitted for the record for the first time. SECTION 1: DEFINITIONS See DEFINITIONS, Chapter 1, Section I. SECTION 2: FILING 2.1 Compliance with Rules All appeals must comply with these Rules and with the requirements established in the applicable City of Bainbridge Island ordinance(s) under which the appeal is filed. 2.2 Timeliness To be considered timely filed, an appeal must be received by the City Clerk no later than the last day of the appeal period. , 2.3 Fee Any filing fee as required by the City of Bainbridge Island shall accompany an appeal. 2.4 Contents An appeal must be in writing and contain the following: a. A brief ~tatement as to how the Appellant is significantly affected by or interested in the matter appealed; ., b. A brief statement of the Appellant's issues on appeal, noting Appellant's specific exceptions and objections to the decision or action being appealed; c. The relief requested, such as reversal or modification; Rules of Procedure Page 13 12/97 Signature, address, and phone number of the Appellant, and name and address of Appellant's designated representative, if any. In the event an organization is the Appellant, one person shall be designated as the contact person for all procedural matters related to the appeal. 3.1 3.2 3.3 SECTION 3: DISMISSAL An appeal may be dismissed without a heating if the Examiner or Council determines that it fails to state a claim for which the Heating Examiner or Counc'fl has jurisdiction to grant relief, or it is without merit on its face, frivolous, or brought merely to secure delay. Any party of record may request dismissal of all or part of an appeal at any time with notice to all parties. The Examiner or Council may make a ruling on a motion to dismiss based upon written arguments or may call for oral arguments. When decision or action being appealed is withdrawn by the issuing Department, the appeal becomes moot and shall be dismissed. 4.1 a. bo SECTION 4: PREHEARING CONFERENCE The Examiner may, on his/her own order, or at the request of a party of record hav'mg standing, hold a conference prior to the hearing to structure the scope of the hearing. The Examiner may use the conference for: 1. Identification, clarification, and simplification of the issues;, 2. Argument of Motions Based on Law; 3. Other matters deemed by the Examiner appropriate for the orderly and expeditious disposition of the proceedings. Preheating conferences may be held by telephone conference call. The Examiner shall give reasonable notice to parties of any preheating conference. Notice may be written or oral. . - All parties shall be represented at any preheating conference unless they waive the right to be present or represented. Following the preheating conference, the Examiner may issue an order reciting the actions taken or ruling on motions made at the conference. Rules of Procedure Page 14 12/97 f. At the hearing the Examiner shall develop for the record the time, purpose and result of the conference. 5.1 5.2 5.3 SECTION 5: WITHDRAWAL An appeal may be withdrawn only by the Appellant. 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. An Appellant' s request to withdraw shall be granted as a matter of right and the appeal dismissed. SECTION 6: PARTIES REPRESENTATIVE REQUIRED 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 Examiner or Council's office of the name, address and telephone number of that 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. 7.1 7.2 7.3 SECTION 7: NOTICE OF HEARING Contents The notice of hearing given to Applicant and Appellant shall be given in accordance with the BIMC. 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 10 days. Responsibility The Department shall be responsible for serving notice of hearing for appeals. Rules of Procedure Page 15 12/97 7.4 8.1 8.2' 8.3 9.1 10.1 10.2 Record of Notice A copy of the notice of hearing shall be made part. of each official case record. SECTION 8: PARTIF_,S' RIGHTS AND RF_~PONSIBILITIES Although Appellants and Applicants have the right to be represented by an attorney, representation by an attorney is not required. Where a party has designated a representative, the representative shall exercise the rights of the party. 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 9: DEFAULT The Examiner or Council 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 10: HEARING FORMAT Appeal hearings, although generally informal in nature, shall have a structured format and shall be conducted in a manner deemed by the Examiner or Council to make the relevant evidence most readily and efficiently available to the Examiner or ~Couneil and to provide the parties a fair opportunity for hearing. The order of an appeal hearing will generally be as follows: a. Examiner or Council's introductory statement; b. Background presentation by Department; c. Appellan['s argument; d. Department's presentation; ,. e. Applicant's presentation; Rules of Procedure Page 16 12/97 10.3 10.4 f. Rebuttal; g. Closing argument of parties. Notwithstanding the provisions of the City of Bainbridge Island Code, the order of hearing may be modified or a different order established as the Examiner or Council deems necessary for a clear and fair presentation. The order of presentation at hearing shall not alter or shift any burden(s) or presumption(s) established by applicable law(s). 11.1 SECTION 11: EXAMINER OR COUNCIL'S DECISION A decision of the Examiner or Council on appeal shall include, but not be limited to, a statement regarding the following: a. Back,round. 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 or Council 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 Examiner or CounciPs decision as to outcome of the appeal (affmu, modify, reverse, or remand) based upon a consideration Of the whole record and supported by substantial evidence in the record. SECTION 12: RECORD 12.1 The record of an appeal shall include: a. The application or petition; The Departmental staff reports; . · 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; Rules of Procedure Page 17 12/97 12.2 A decision or a recommended decision containing the findings and conclusions of the Examiner or Council; Recordings made on electronic equipment; and, An environmental determination made pursuant to the State Environmental Policy Act of 1971 (SEPA) (if applicable). The Examiner or Council's administrative file on an appeal, case may include other information or materials which are not part of the evidentiary record. 13.1 13.2 SECTION 13: RECONSIDERATION Reconsideration may be granted by the Examiner on a showing of one or more of the following: Irregularity in the proceedings by which the moving party was prevented from having a fair hearing; 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. Motions for reconsideration must be filed within ten (10) working days of the date of the Examiner or Council's decision. Unless otherwise specifically provided by the applicable ordinance(s), the filing of a motion for reconsideration shall not stop the period provided to appeal the Examiner or Council's decision. , Rules ofProcedure Page 18 12197 CHAPTER HI: RULES OF APPEAL FOR CLOSED RECORD APPEALS OF ADMINISTRATIVE DECISIONS Anolication of these Rules These Rules apply to closed record appeals of administrative decisions that approve, deny, or condition a land use permit application. A closed record appeal is one where no evidence or information is allowed to be submitted and only appeal argument is allowed. SECTION 1: DEFINITIONS See DEFINITIONS, Chapter 1, Section 1. SECTION 2: FILING 2.1 Com 1lance with R les All appeals must comply with these Rules and with the requirements established in 'the applicable City of Bainbridge Island ordinance(s) under which the appeal is fled. 2.2 Timeliness To be considered timely filed, an appeal must be received by the City Clerk no later than the last day of the appeal period. 2.3 Fee Any filing fee as required by City of Bainbridge Island Code shall accompany an appeal. 2.4 Contents An appeal must be in writing and contain the following: a. A brief 'statement as to how the Appellant is significantly affected by or interested in the matter appealed; b.' A brief statement of the Appellant's issues on appeal, noting Appellant's specific exceptions and objections to the decision or action being appealed; c. The relief requested, such as reversal or modification; Rules of Procedure Page 19 12/97 d. Signature, address, and phone number of the Appellant, and name and address of Appellant's designated representative, if any. 3.1 3.2 3.3 SECTION 3: DISMISSAL An appeal may be dismissed without a hearing if the Examiner or Council determines that it fails to state a claim for which the Examiner or Council has jurisdiction to grant relief, or it is without merit on its face, frivolous, or brought merely to secure delay. Any party of record may request dismissal of all or part of an appeal at any time with notice to all parties. The Examiner or Council may make a ruling on a motion to dismiss based upon written arguments or may call for oral arguments. When decision or action being appealed is withdrawn by the issuing Department, the appeal becomes moot and shall be dismissed. SECTION 4: PREHEARING CONFERENCE 4.1 The Examiner or Council may, on his/her own order, or at the request of a party of record, hold a conference prior to the hearing to structure the scope of the hearing. The Examiner may use the conference for: 1. Identification, clarification, and simplification of the issues; Argument of Motions Based on Law; Other matters deemed by the Examiner appropriate for the orderly and expeditious disposition of the proceedings. b. Preheating conferences may be held by telephone conference call The Examiner shall give reasonable notice to parties of any preheating conference. Notice may be written or oral. All parties shall be represented at any preheating conference unless they waive the right ~o be present or represented. . - Following the prehearing conference, the Examiner may issue an order reciting the actions taken or ruling on motions made at the conference. f. At the hearing the Examiner shall devel°p for the record the time, purpose and result of the conference. Rules of Procedure Page 20 12/97 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 had been designated as the party representative. 5.3 An Appellant's request to withdraw shall be granted as a matter of right and the appeal dismissed. 6.1 SECTION 6: PARTIES REPRESENTATIVE REOUIRED 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 Examiner or Council's office of the name, address and telephone number of that 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 7: NOTICE OF HEARING 7.1 Contents The notice of heating given to Applicant and Appellant shall be given in accordance with the BIlvlC 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, minimum notice shall be ten (10) days. 7.3 Responsibility The Department shall be responsible for serving notice of hearing for appeals. 7.4 Record of Notice An affidavit attesting to the notice given of a heating (including date~ and places of publication and list of those mailed to) shall be part of each official case record. Rules of Procedure Page 21 12/97 SECTION 8: PARTIES' RIGHTS AND RESPONSIBILITIES 8.1 Parties have the right to be represented by an attorney. Representation by an attorney is not required. 8.2 Where a party has designated a representative, the representative shall exercise the fights of the party. 8.3 All parties and others participating in and observing hearings shall conduct themselves with civility and deal courteously with all persons involved in the proceedings. 9.1 10.1 SECTION 9: DEFAULT The Examiner or Council 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 10: HEARING FORMAT Appeal hearings, although generally informal in nature, shall have a structured format and shall be conducted in a manner deemed by the Examiner or Council to make the relevant evidence most readily and efficiently available to the Examiner or Council and to provide the parties a fair opportunity for hearing. 10.2 The order of hearing will generally be as follows: Examiner or Council's introductory statement; Background presentation by Department; Appellant's argument; Department's presentation; Applican['s presentation; Rebuttal; . · g. Closing argument of parties. Rules of Procedure Page 22 12/97 10.3 10.4 Notwithstanding the provisions of the City of Bainbridge Island Code, the order of hearing may be modified or a different order established as the Examiner or Council or Council deems necessary for a clear and fair presentation. The order of presentation at hearing shall not alter or shift any burden(s) or presumption(s) established by applicable law(s). 11.1 SECTION 11: EXAMINER OR Council'S DECISION A decision of the Examiner or Council on appeal shall include, but not be limited to, a statement regarding the following: Background. The nature and background of the proceeding, including identification of party representatives participating in the hearing, preheating determinations, and other similar information. Findings. The individual facts that the Examiner or Council fmds relevant, credible, and requisite to the decision, based on the record of proceedings. Conclusions. Legal and factual conclusions based upon specific Provisions of law and the findings of fact. Decision. The Examiner or Council'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. SECTION 12: RECORD , · 12.1The record of an appeal shall include: a. Department's decision or action being appealed; b. Appeal statement; c. Record of proceedings of decisionmaker; d. Tape reCOrding of appeal hearing; . e. Written arguments submitted by parties. 12.2 The Examiner or Council's administrative file on an appeal case may include other information or materials which are not part of the evidentiary record. Rules ofProeedure Page 23 12/97 13.1 13.2 SECTION 13: RECONSIDERATION Reconsideration may be granted by the Examiner or Council on a showing of one or more of the following: Irregularity in the proceedings by which the moving party was prevented from having a fair hearing; 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. Motions for reconsideration must be filed within ten (10) working days of the date of the Examiner or Council's decision. Unless otherwise specifically provided by the applicable ordinance(s), the filing of a motion for reconsideration shall not stop the period provided to appeal the Examiner or Council's decision. Rules of Procedure Page 24 12/97