Document Everett_doc_3b4c46489d

C I T Y O F E V E R E T T Land Use Hearing Examiner ROLE OF THE LAND USE HEARING EXAMINER The Hearing Examiner is an independent official, appointed by City Council, who conducts hearings to apply regulations and procedures adopted by the City Council to specific land use matters. The Everett Municipal Code (EMC, or City Code) authorizes the Hearing Examiner to conduct hearings on land use permit applications and appeals of certain City administrative decisions. The City of Everett contracts with an independent Hearing Examiner, who is not a City employee. The neutrality of the Examiner helps to ensure fairness and due process protection for everyone involved. As the result of each hearing, the Hearing Examiner will issue a decision (or recommendation) based on the testimony and evidence admitted in the record. The Examiner’s decision on a permit application will determine whether the proposed development has been shown to meet all requirements of the applicable EMC provisions and State law. In appeals, the Examiner’s decision will determine whether the City administrative determination under appeal does or does not conform to applicable City Code requirements. Applicants, City departments, other public agencies, and all persons interested in a land use application should participate at the hearing through the submittal of relevant testimony and documents. The party with the burden of proof is the one responsible for providing evidence demonstrating that their position is correct. In the case of an application, an Applicant must meet the burden of proof by providing evidence that shows that the proposal meets applicable criteria for permit approval and all applicable development standards. In the case of an appeal, the Appellant must show through evidence that the City’s administrative decision is inconsistent with applicable City codes. The Hearing Examiner’s recommendations and decisions must be consistent with applicable law in effect at the time a complete application is filed. The Hearing Examiner does not create policy and cannot consider or decide challenges to adopted City Code. Challenges to adopted EMC provisions can only be considered by the City Council. Typically, applications for land use must demonstrate compliance with the regulations in effect on the date the application is deemed complete by the City. The City’s Examiner does not have authority to approve a project that cannot demonstrate compliance with applicable regulations, and similarly, the Examiner lacks authority to deny applications that does demonstrate compliance with applicable regulations. Hearing Examiner Rules of Procedure are adopted to supplement the procedures established in the Everett Municipal Code, for the purpose of providing advance notice and guidance on how matters before the Examiner will be conducted. These rules are intended to address most circumstances that arise in Hearing Examiner proceedings. The possibility exists that an unforeseen situation may occur that does not lend itself to full, literal compliance with these rules. In such cases, the Examiner reserves the right to exercise reasonable and necessary discretion when applying these rules to unusual circumstances. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 I. AUTHORITY The Rules of the Hearing Examiner shall be adopted pursuant to Everett Municipal Code (EMC) 2.23.110. II. APPLICABILITY OF RULES These Hearing Examiner Rules are adopted to supplement the ordinance requirements for matters within the Hearing Examiner's jurisdiction and govern administrative practice and procedure before the Hearing Examiner, except where otherwise provided in City Code. In the event of conflict between these rules and the Everett Municipal Code resulting from amendment, the adopted ordinance shall prevail. III. DEFINITIONS “Administrative decision” – a decision issued by a departmental director of the City of Everett, or a director’s designee, including State Environmental Policy Act (SEPA) environmental threshold determinations. “Appeal” – a challenge to a decision or other action where the City Code authorizes the Hearing Examiner to make a decision on the matter. “Appellant” – any individual, partnership, corporation, association, or public or private organization of any character who files a complete and timely appeal of a decision or other appealable action. “Applicant” – means a person who applies for any permit or approval to do anything governed by the Everett Municipal Code and who has legal standing to apply for a permit or approval on the specific property. “City” – the City of Everett, Washington. “Code” – Regulations adopted by the City of Everett, Washington. This includes the Everett Municipal Code (EMC), the Unified Development Code (UDC), the International Building Code (IBC), and all other technical codes formally adopted by the City Council. “Council” – the Everett City Council. “Departmental Staff” – Staff of the departments of the City of Everett, Washington. “Dispositive Motion” – a request from a party that the Hearing Examiner dispose of all or part of the appeal claim(s) in favor of the requesting party without need for further proceedings. “Everett Municipal Code” or “EMC” – the City of Everett Municipal Code. “Ex Parte Communication” – written or oral communications to the Hearing Examiner about a matter pending before the Hearing Examiner that is made outside of a public hearing. Any such communication must be disclosed in any subsequent proceeding. “Hearing” – the legal proceeding where testimony and evidence are presented to the Hearing Examiner on the record. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 “Hearing Clerk” – the City employee designated or assigned to provide hearing clerk services for the City’s contract Hearing Examiner and Examiner pro tem. The Hearing Clerk acts as liaison between the Examiner, City Staff, and all parties to all matters scheduled for Hearing Examiner hearing, and also keeps the official record of each matter. The Hearing Clerk typically also keeps a list of all necessary contacts and contact information for matters to be heard by the Examiner and issues all orders, rulings, decisions, and recommendations of the Examiner to the parties of record and appropriate City departments. “Hearing Examiner” or “Examiner” – a duly designated Hearing Examiner or the Hearing Examiner Pro Tem of the City of Everett. “Interested person” – any individual, partnership, corporation, association, or public or private organization of any character, significantly affected by or interested in proceedings before the Hearing Examiner, that is not a party to a given proceeding. This status is granted at the discretion of the Examiner. “Motion” – a request made to the Hearing Examiner for an order or other ruling related to legal arguments on a given matter. “Order” – a ruling, instruction, or other directive issued by the Hearing Examiner in response to a request or a motion by a party, or on the Hearing Examiner’s own initiative. “Party” –the applicant, owner(s) of property subject to the application, appellant, and City Staff are considered parties to an appeal. Parties to a proceeding possess greater rights of participation than parties of record, which is a broader classification. “Party of Record” – in addition to the project applicant, owner(s) of the property subject to an application or appeal, the appellant, and the City, a party of record is any person who: • Submits written or verbal comments prior to hearing in response to notice of application and/or notice of SEPA determination, and/or; • Participates in an open record, pre-decision hearing, through submitting timely comments or providing testimony at hearing, and/or; • Requests to be made a party of record prior hearing. • Any person who completes any of the above actions must also provide a complete, legible postal mailing address and/or email address to be considered as a party of record. “Representative” – an individual or firm that is designated by a party to be the official contact person and to speak for that party. A representative is not required to be an attorney. “Unified Development Code” or “UDC” – Title 19 of the City of Everett Municipal Code as adopted in November 2020. See EMC Chapter 19.04, EMC 19.24.100, EMC 15.08.020, EMC 15.02.820, and EMC 1.04.010 for additional relevant definitions. Other Titles and Chapters of the Everett Municipal Code may also contain relevant definitions. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 IV. EX PARTE COMMUNICATIONS A. Application or Appeal. No person, nor any agent, employee, or representative, shall communicate ex parte, directly or indirectly, with the Hearing Examiner, nor the Hearing Examiner communicate with them, outside of the scheduled hearing concerning the merits of any pending application or appeal, or regarding a particular petition or application that is or will be scheduled for hearing before the Examiner. B. Basis for Disqualification. If a substantial ex parte communication is made to or by the Hearing Examiner, such communication shall be publicly disclosed, and proper discretion shall be exercised by the Hearing Examiner on whether to disqualify himself or herself as Hearing Examiner for that matter. C. Office of the Hearing Examiner. All communications to the Hearing Examiner, including procedural inquires, shall be directed to the Office of the Hearing Examiner, via the designated Hearing Clerk. V. POWERS AND DUTIES OF THE HEARING EXAMINER A. Presiding Official. Hearings shall be presided over by a duly designated Hearing Examiner or Hearing Examiner Pro Tem. B. Duties. The Hearing Examiner shall have all of the authority and duties granted in EMC 15.02.080 and otherwise as provided in adopted in the Everett Municipal Code. Included in the authority and duties of the Hearing Examiner are the following: to conduct fair and impartial hearings; to take all necessary action to avoid delay in the disposition of proceedings; and to maintain order. He or she shall have all powers necessary to that end, including the following: 1. To administer oaths and affirmations; 2. To rule upon offers of proof, receive evidence, and making rulings on admissibility of offered evidence; 3. To regulate the course of the hearings and the conduct of the parties and their agents; 4. To question any party presenting testimony at a hearing; 5. To hold conferences for clarification or simplification of the issues, scheduling, and any other proper purpose; 6. To consider and rule upon all procedural and other motions appropriate to the proceeding; 7. To place time limits on testimony; 8. To set page limits on legal briefing; and 9. To issue orders, rulings on motions, recommendations to Council, and final City decisions. C. Quasi-Judicial. Hearings by the Hearing Examiner are quasi-judicial proceedings, which determine the legal rights, duties, or privileges of specific parties in a hearing or other ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 proceeding. Quasi-judicial proceedings involve decisions concerning the application of adopted regulations and policies, not the making of or challenges to adopted regulations and policies which is done through a legislative process. D. Appearance of Fairness. The Hearing Examiner may not participate in hearings in which he or she has a financial interest, has prejudged the issues, or may appear to be biased because of ties with a party to the action or to the property involved. E. Jurisdiction. The Hearing Examiner’s jurisdiction is limited to those issues where ordinance or other appropriate authority grants the power to make a decision or recommendation. If the Examiner lacks jurisdiction, the matter or issue cannot be heard and decided by the Examiner. F. Interference. In the performance of his or her duties, the Hearing Examiner shall not be subject to the supervision or direction of any elected official, officer, employee or agent of any municipal department of the City. G. Disqualification. Should a Hearing Examiner be disqualified for any reason from hearing a given matter, that matter shall be heard by the Hearing Examiner Pro Tem or other alternate duly appointed by the City Council or Council’s designee. H. Presence of Legal Counsel at Public Hearings or Meetings. At the request and discretion of the Hearing Examiner, a representative of the City Attorney shall be present at public hearings or meetings to advise on matters of law and procedure. VI. RIGHTS AND RESPONSIBILITIES OF PARTIES A. Rights of Parties. Parties to a given proceeding before the Examiner shall have the right of due notice, rebuttal, presentation of evidence, objection, motion, argument, and all other rights essential to a fair hearing. The Hearing Examiner may impose reasonable limitations on the number of witnesses heard, and on the nature and length of each witness’s testimony. Cross examination is permitted at the Examiner's discretion as necessary for a full disclosure of the facts. B. Responsibilities of Hearing Participants. Parties, witnesses, and observers shall conduct themselves with civility and deal courteously with all involved in the proceedings. Failure to do so may result in removal from the hearing. C. Filing an Appeal. A timely appeal application shall be accompanied by any required filing fee. Filing of the appeal shall not be complete until both the appeal application form and proof of payment of the required fee have been received by the Office of the Hearing Examiner. For an appeal to be timely, filing must be completed with the City before the appeal period expires. D. Party Representative. When more than one person files a single appeal, or when the appellant is an organization or other entity, the party shall designate an individual to be its representative/spokesperson and provide written notification to the Office of the Hearing ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 Examiner with contact information for the representative. Notice or other communication to the party representative is considered to be notice or communication to the party. E. Legal Counsel. Representation by legal counsel is not mandated by the hearing process, but parties may be represented by legal counsel at all stages of the hearings. Legal counsel shall submit a notice of appearance to the Office of the Hearing Examiner as early as possible. Of note, if legal counsel is retained after a scheduling order is issued following a pre-hearing conference, continuance/amendment of the schedule to accommodate the availability of counsel retained after the pre-hearing conference shall be at the sole discretion of the Examiner. F. Settlement. If the parties to an appeal reach settlement at any time during the appeal process, the appellant shall notify the Office of the Hearing Examiner in writing to withdraw the appeal. The Hearing Examiner does not preside over, nor mediate settlement negotiations between parties. VII. GENERAL HEARING INFORMATION A. Scheduling. Land use hearings are regularly scheduled every other Thursday. Start times are typically either 9:00 am or 1:00 pm. In appeals, alternate scheduling may be arranged subject to availability of the Examiner, City Staff, and facilities, in order to accommodate the availability of Appellant’s counsel and witnesses. B. Expeditious Proceedings. It is the policy of the Office of the Hearing Examiner that, to the extent practicable and consistent with requirements of law, public hearings shall be conducted expeditiously. In the conduct of such proceedings, the Hearing Examiner and all parties, or party agents, shall make every effort at each stage of a proceeding to avoid delay. C. Accessibility and Accommodation. Proceedings before the Hearing Examiner shall be accessible to the greatest extent practicable. If a hearing-impaired or non-English-speaking party requires an interpreter or other accommodation to participate in a hearing fully and fairly, the City will provide a qualified and impartial interpreter, or provide other necessary accommodation. The party shall notify the Office of the Hearing Examiner at least two weeks prior to the hearing to make the arrangements. D. Consolidation. Where practical, feasible, and consistent with City Code, all matters under the jurisdiction of the Hearing Examiner relating to the same matter should be consolidated in one hearing, including a SEPA appeal of an environmental threshold determination on a project that will ultimately be decided following an open record hearing before the Examiner. The Hearing Examiner may order consolidation with or without a request from any party. E. Participation in hearings. The intent is to ensure that every hearing provides participants an opportunity to be heard to the full extent allowed by City Code. Hearing format is structured to ensure that facts relevant to a particular proceeding will become the most readily and efficiently available to the Hearing Examiner. All open record hearings are open to the public and anyone may attend to observe. In permit application hearings, there is an ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 opportunity for public comment; however, the public’s participation is not intended to be equal to that of a project applicant. Members of the public often have multiple pre-hearing opportunities to state their concerns following notices of application and hearing and will also have the opportunity to submit testimony and documents at hearing. In appeal hearings, only parties to the appeal and witnesses called by the parties to the appeal may testify or participate; there is no public comment in appeal hearings. Each individual party is responsible for witness appearance and participation. F. Computation of Time. Computation of any period of time prescribed by these rules shall begin with the first day following the day on which the act or event initiating such period of time occurs. When the last day is a Saturday, Sunday, or national or State holiday, the period shall run until the end of the next business day. G. Discovery. In general, "discovery" as defined in the Washington State Courts Superior Court Civil Rules of procedure is not applicable in the Hearing Examiner process, except where required by City Code. Any public records request(s) made in an attempt to acquire documents for a hearing will follow the timeline and requirements of RCW 42.56, a separate process. The Examiner does not have jurisdiction over the public records request process. It is not always possible to delay a hearing to allow for a public records request to be completed. H. Virtual Hearings. Hearings may be conducted either in person at the City hearing room facility on the eighth floor of the Wall Street Building or virtually on a video-conferencing platform at the City’s discretion. I. Document Submission. The staff report prepared by the appropriate City department and attachments/exhibits will be available to the public five business days in advance of the hearing. In an open record hearing, all parties may submit documents up until the close of the record. Any party who submits documents at an in-person hearing must bring copies for the other parties, the Hearing Examiner, and the City's official record. In the case of virtual hearings, document submission and exchange are typically accomplished either online or by email rather than through hard copies. J. Site view. When necessary to a full understanding of a case, at his or her sole discretion, the Hearing Examiner may inspect the site before or after the hearing. When a site view is conducted, it will be acknowledged in the written decision. The site view will either be taken out of the presence of any interested party, or will be conducted in the presence of representatives of all necessary parties wherever feasible. Where the Examiner is accompanied, no discussion as to the merits of the application and/or appeal may occur during a site view. K. Record of Hearing. All admitted documents and any administrative documents generated through the hearing process (such as sign-in sheets) are considered part of the public record subject to disclosure per RCW 42.56. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 1. Electronic Recording. Hearings shall be electronically recorded and such recordings shall be a part of the official record of each matter. Copies of the electronic recordings of a particular proceeding can be made available to the public on request and the reasonable cost of such copying, if any, shall be paid by the requestor. No official written verbatim transcript of the hearing will be created by the Office of the Hearing Examiner. Individual parties bear the cost of transcription production. 2. Copies. Copies of any written materials in the record may be obtained by any interested person through the City’s public records request procedures. The requestor shall be responsible for paying the cost of reproducing such material. Hearing related documents can also be found on the City of Everett’s website. VIII. CONDUCT OF HEARINGS A. Format of the Hearing. 1. Application. An open record public hearing on a land use application shall include, but not necessarily be limited to, the following: a brief introductory statement by the Hearing Examiner; presentation of the application by the Applicant, with testimony from any witnesses; presentation by City Staff, including analysis of the application’s compliance with criteria for permit approval and applicable developments standards, and a recommendation as to the appropriate outcome; a public comment period; and responses by the City and the Applicant to questions and concerns raised in public comment. The Examiner may ask questions of any person who testifies. 2. Appeal. An open record appeal hearing before the Examiner may include but is not necessarily is not limited to the following: a brief introductory statement by the Examiner; a concise statement of the decision or action appealed from by City Staff; the Appellant's case, including all witnesses; cross examination of appellant witnesses; the City's case, including all witnesses; cross examination of City witnesses; the Applicant's case (if different from Appellant) and all witnesses; cross examination of Applicant witnesses; rebuttal evidence in the same order; and closing statements from Applicant, City, and the Appellant. At the Examiner's discretion, closing arguments may be submitted in writing rather than in verbal statements on the record at the conclusion of the proceedings. B. Oath or Affirmation. All testimony before the Examiner shall be given under oath or affirmation to tell the truth. C. Content of the Record. The record of a hearing conducted by the Examiner shall include, but not be limited to, the following materials: 1. The application or petition for appeal; 2. The staff report; 3. All documentary evidence received, including exhibits submitted by all participants; 4. A statement of any matters officially noticed; 5. The electronic recording of the proceedings; and ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 6. Following deliberation, the findings, conclusions, and decision or recommendation of the Hearing Examiner. D. Evidence. 1. Burden of Proof. a. Application. The applicant bears the burden of proof and must demonstrate that a preponderance of the evidence supports the conclusion that the application satisfies, or can be conditioned to satisfy, all applicable criteria for approval. The applicant, or a representative, must attend the hearing and be prepared to present a case, answer questions from the Hearing Examiner and other parties, and respond to public comment. b. Appeal. Unless otherwise provided by law, the Appellant bears the burden of proof in land use matters. The appellant, or a designated representative, must attend the hearing and be prepared to present a case and to answer questions from the Hearing Examiner and other parties. In many appeals, the Hearing Examiner is required by City Code to accord substantial weight to the decision of the department director that is appealed from. The Hearing Examiner may grant the appeal or grant the appeal with modifications if the Examiner determines that the appellant has carried the burden of proving that the decision is not supported by a preponderance of the evidence or was a clearly erroneous application of applicable regulations. 2. Admissibility. The hearing generally will not be conducted in strict accordance with Superior Court rules of evidence and procedure. At the discretion of the Examiner, relevant evidence will be admitted if it is of the type that possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs. The Examiner has discretion to decide whether offered evidence is relevant, and is authorized to accord weight to admitted evidence according to the Examiner’s professional judgment of its merit. 3. Copies. Documentary evidence may be received in the form of copies or excerpts, or in electronic form. Upon request, at the discretion of the Examiner, parties may be given an opportunity to compare the copy with the original. 4. Official Notice. The Hearing Examiner may take official notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within his or her specialized knowledge. The Hearing Examiner shall not take notice of disputed adjudicative facts that are at the center of a particular proceeding. 5. Post Hearing Document Submission. At the Examiner's discretion, the record may be held open for relevant documents not available at the time of hearing. Only those documents specifically requested by the Examiner will be admitted. The Examiner may allow the designated parties to respond to documents submitted after the close of the record. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 6. Evidence Received After Close of the Record Not Admitted. Except for limited circumstances detailed in the reconsideration section below, evidence not expressly requested by the Examiner will not be admitted after the close of the record. Any documents offered following a hearing and not admitted will be returned to the submitting party, or if sent electronically, will not be included in the official record. E. Continuance of Hearings. 1. Hearing Examiner. If, in the course of a hearing, the Examiner determines information is necessary to make a decision that is not available at the time of the proceedings, the hearing may be continued, or the record held open to allow its post hearing submission. 2. At the Request of a party. Before the date of a scheduled hearing, a party may request continuance of the hearing on reasonable grounds through the Office of the Hearing Examiner. The Hearing Examiner shall have discretion to grant or deny the request for continuance. 3. If the date of the continued proceedings is established on the record at a public hearing, no further notice is required. If the continuance date is determined after adjournment, all parties of record shall be provided not less than 10 days’ notice of the date, time, place, and nature of the subsequent hearing. Such notice shall also be posted at City Hall and the City’s website. IX. Procedures Specific to Appeals A. When the Planning Department receives an appeal, it will be sent to the Hearing Examiner for review upon receipt. The Hearing Examiner will determine if a pre-hearing conference is necessary. If no pre-hearing conference is convened, all parties will agree to a hearing date and document submission timeline through communication with the Office of the Hearing Examiner. This is typically conducted via email through the Hearing Clerk B. The Examiner may, at his or her own discretion or at the request of a party, hold a conference before the hearing to consider: 1. Identification, clarification, and simplification of the issues; 2. Identification of party representatives and additional necessary parties to a given proceeding; 3. Scheduling of the hearing and of pre-hearing document exchange, including motions and legal briefing (if any); and 4. Other matters requested by the parties or deemed by the Examiner appropriate for the orderly and expeditious disposition of the proceedings. C. Pre-hearing conferences may be held by telephone conference call or virtual video conference, or on rare occasion, in person. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 D. Pre-hearing conferences shall be scheduled following communications from the Hearing Clerk to all necessary parties/party representatives to identify the earliest mutually agreeable time and date. E. All parties to a given matter shall be in attendance at the pre-hearing conference unless they waive the right to be present or represented, and are granted permission by the Examiner not to attend. F. Following the pre-hearing conference, the Examiner will typically issue an order memorializing the topics of discussion and agreements reached at the pre-hearing conference. Such an order will include: the identities and contact information for all party representatives; the substance of scheduling discussions, as relevant; required submittals to further the hearing process, such as clarification of the errors alleged in the filed appeal; and the established schedule for document exchange including witness and exhibit lists, motions and responses, legal briefing, and exchange of the exhibits themselves before the hearing. Such an order will contain a document submission timeline and method, which will be binding on all parties and must be adhered to for the submissions to be considered timely filed, unless otherwise specified by the Hearing Examiner. Late submitted documents may be admitted solely at the Examiner’s discretion and only to the extent that any prejudice to other parties can reasonably be accommodated going forward. G. Clarification of Appeal. The appellant shall provide clarification, additional information, or other submittal(s) as the Hearing Examiner deems necessary in order that the issues on appeal be made adequately clear to allow other parties to respond. The Hearing Examiner shall rule on the request of any party for clarification of an appeal. Request for clarification must be made in a timely manner to afford reasonable opportunity for other parties to prepare response(s). If the appellant does not provide necessary clarification as required by the Hearing Examiner, the appeal may be dismissed. H. Dispositive and Other Motions. Motions to limit the scope of issues, or to dispose of some or all issues, raised in an appeal may be offered consistent with a schedule set during the pre- hearing conference. Responses and replies to motions will typically be allowed, depending on time available and the complexity of the legal issues, at the discretion of the Examiner. All motions shall be in writing and shall state the order or relief requested and the grounds for the motion. All motions other than those made during a hearing shall be in writing. The Examiner will typically schedule a ruling on the motion to occur before the parties must exchange witness and exhibit lists. I. Witness and Exhibit lists. Parties will be responsible for the filing of witness and exhibit lists based on the schedule established during the pre-hearing conference, and providing updated lists if additional witnesses or exhibits are offered. These are provided to ensure that all parties can adequately prepare in advance, for the purpose of expediting efficient proceedings. ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 J. Legal Briefing. The Examiner may, at his or her discretion, set page limits on legal briefing. Parties may offer, or the Examiner may request, legal argument in writing on specific issues prior to or after a hearing, if post-hearing briefing schedules are announced at the hearing. K. Avoiding duplication in the record. In order to reduce duplicative exhibits, the Hearing Examiner may request that the parties stipulate to documents contained in the record. L. Dismissal for failure to respond. If, after filing an appeal, an appellant fails to communicate with the Office of the Hearing Examiner in order to set a hearing date or otherwise advance the appeal, the Examiner may either set a hearing date without the concurrence of the appellant by written notice to the appellant’s address, or dismiss the appeal for failure to prosecute the appeal. M. Withdrawal Requests. If an Appellant withdraws their petition after service of official notice of hearing, notice of withdrawal and cancellation of hearing shall be provided in the same manner as the notice of public hearing. The Planning Department shall notify the Office of the Hearing Examiner of any withdrawal at the time of receipt. Notice of withdrawal of an appeal must be submitted to the hearing Examiner's office in writing; email will suffice. Any appeal fee paid will be refunded to the Appellant or representative if the appeal is withdrawn prior to the hearing. N. Dismissal of appeal. 1. Mootness. If the decision or action which is being appealed is withdrawn, the appeal becomes moot and shall be dismissed by the Hearing Examiner with or without a motion by the parties. 2. Default. If the Appellant fails to appear at a scheduled and properly noticed hearing or pre-hearing conference without good cause, or is unprepared to proceed, the Examiner may dismiss the appeal with or without a motion by a party. 3. Request of Party. Any party may request dismissal of all or part of an appeal at any time with notice to all parties. The Hearing Examiner will make a ruling on the motion to dismiss, which will be addressed in the pre-hearing scheduling order. 4. Hearing Examiner Determination. An appeal may be dismissed without a hearing if the Hearing Examiner determines that it fails to state a claim for which the Hearing Examiner has jurisdiction to grant relief; was untimely filed or is incomplete; is without merit and frivolous; or the appealing party lacks standing to bring the appeal forward. X. DECISIONS AND RECOMMENDATIONS A. Written Recommendations or Decisions. A written report of findings, conclusions, and decision or recommendation will be issued within 10 business days after the close of the record. The Examiner will issue the document to the Hearing Clerk, who will distribute to the parties of record and all appropriate City departments. B. Content of Recommendations or Decisions. A decision or recommendation shall include a statement of: ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 1. Procedural Posture. The nature, procedural posture, and background of the proceeding. 2. Findings of Fact. The findings shall be based exclusively on the evidence presented in the hearing and those matters officially noticed. The findings of fact will include a statement of each fact found upon each contested issue. 3. Conclusions. Conclusions shall reference specific provisions of the EMC and other applicable law and shall identify the findings containing evidence upon which each conclusion rests. 4. Decision or Recommendation. The decision or recommendation shall be based upon a consideration of the whole record and shall be supported by reliable, probative, and substantial evidence. C. Post Hearing Procedures. 1. At any time prior to the filing of the decision or recommendation, the Examiner may reopen the proceeding to receive necessary additional evidence. Parties shall be given notice of the consideration of such evidence and, at the Examiner’s discretion, granted an opportunity to review it and respond in writing. (This response opportunity applies to Parties, not to the entire parties of record list.) 2. Clarification. Any party of record may request clarification of an issued decision by submitting a request for clarification that cites to the specific findings, conclusions, conditions, or other section of an issued document for which clarification is sought. The Hearing Examiner shall have discretion to provide clarification. Such clarification shall not stay the effect of a decision or change the issuance date, nor amend the conclusions of the Hearing Examiner’s decision. 3. Reconsideration. a. Request. Any party of record may file a written request with the Examiner for reconsideration as outlined within the Everett Municipal Code (EMC) 15.02.200 within 10 business days of the date of the Examiner’s decision or recommendation. The request shall explicitly set forth alleged errors of procedure or fact. b. New Evidence. If a request for reconsideration is submitted with new evidence not offered prior to the close of the record, the Examiner shall have discretion as to whether or not to consider the new evidence. Typically, new evidence will only be considered if the evidence was unavailable at the hearing and/or the person offering the evidence could not have discovered the evidence prior to the close of the record with reasonable diligence. If the Examiner agrees to consider new evidence, all Parties will be given notice and an opportunity to review such evidence and file written responses. c. Decision on Reconsideration. The Hearing Examiner shall act upon timely reconsideration requests within the timeline established in EMC 15.02.200.E(5); or otherwise within 10 business days after the date of the filing of the request for reconsideration. The Examiner may take any of the following actions: deny the request; request responses from other parties at the Examiner's discretion; issue a ---PAGE BREAK--- Everett Hearing Examiner Rules of Procedure - Land Use (Final) Adopted September 14, 2021 revised decision or recommendation; or reconvene the hearing. If responses from other parties are requested, the Examiner will issue an order establishing a response schedule and the issuance date for the decision on reconsideration. If the hearing is reconvened, notice of reconvened hearing shall be mailed to all parties of record not less than 10 business days prior to the hearing date. A decision on reconsideration shall issue within 15 business days of the conclusion of any of the above post-hearing proceedings (response schedule or reconvened hearing). 4. Clerical Errors. Consistent with EMC 15.02.200.E(8), clerical mistakes in decisions, recommendations, orders, or other parts of the record, and errors arising from oversight or omission, may be corrected by Order on the Hearing Examiner’s initiative, or in response to the motion of a party for correction of scrivener error. Please contact the Office of the Hearing Examiner for a form to request a clerical correction. XI. APPEALS OF FINAL DECISIONS A. When all reconsideration periods have expired, the Hearing Examiner’s decision is the final City action on the matter, unless otherwise allowed in City Code. Any party of record aggrieved by an Examiner's decision constituting the final decision of the City may appeal the decision to Snohomish County Superior Court, except that in the case of final decisions on shoreline permits, appeals shall be filed with the Shoreline Hearings Board. All appeals shall be made pursuant to EMC 15.02.600 consistent with the procedures set forth in the Land Use Petition Act, RCW Chapter 36.70C. B. Any transcript of the Examiner’s proceedings shall be prepared by the appealing party. Upon completion of the transcript, it shall be submitted to the Land Use Hearing Examiner Office for certification. All costs shall be borne by the appealing party. XII. SUPERSEDE These rules supersede all previously adopted rules. Adopted on September 14, 2021.