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4.02 - 1 CHAPTER 4.02 HEARING EXAMINER SECTION: 4.02.010: General Objectives 4.02.020: Creation of the Hearing Examiner 4.02.030: Appointment and Term 4.02.040: Qualifications 4.02.050: Examiner Pro Tem – Duties 4.02.060: Hearing Examiner – Conflict of Interest 4.02.070: Freedom from Improper Influence 4.02.080: Duties of the Examiner – Applications and Decisions 4.02.090: Applications 4.02.100: Report by Planning Department 4.02.110: Public Hearing 4.02.120: Examiner’s Decision – Findings Required 4.02.130: Request for Reconsideration 4.02.140: Appeal of Final Decisions 4.02.150: Reference to Board of Adjustment or Appeals Commission 4.02.010: General Objectives: It is the general objective of this Chapter to: With regard to land use matters to: Provide a single, efficient, integrated, land use regulatory decision-making process and public hearing system; Render land use regulatory decisions; Provide a greater degree of due process in land use regulatory decision-making and public hearings; Separate land use policy formulation from land use policy administration processes; With regard to other matters to: Provide a single, efficient integrated system for hearing appeals of administrative decisions; Provide a forum to hear other matters as established by City code. (Ord. 5321 Sec. 1, 2010) 4.02.020: Creation of the Hearing Examiner: The office of the Hearing Examiner, hereinafter referred to as “Examiner,” is hereby created. The Examiner shall interpret, review, and implement land use regulations as provided in this Title and other ordinances, issues and matters as assigned, delegated and/or referred to the Examiner. The term “Examiner” shall likewise include the Examiner Pro Tem. (Ord. 5321 Sec. 1, 2010) ---PAGE BREAK--- 4.02 - 2 4.02.030: Appointment and Term: The Hearing Examiner shall be appointed by the City Manager and subject to confirmation by the Kennewick City Council. In the event that the appointed Examiner is unable to perform the duties of office for whatever reason, or in the event of a vacancy in office, the City Manager shall appoint an Examiner Pro Tem who shall have the authorities herein provided. (Ord. 5321 Sec. 1, 2010) 4.02.040: Qualifications: The Examiner and the Examiner Pro Tem shall be appointed solely with regard to their qualifications for the duties of the office which shall include, but not be limited to, appropriate educational experience such as in urban planning, land use law, and public administration. (Ord. 5321 Sec. 1, 2010) 4.02.050: Examiner Pro Tem – Duties: The Examiner Pro Tem, in the event of the absence or inability of the Examiner to act, shall have all the duties and powers of the Examiner. (Ord. 5321 Sec. 1, 2010) 4.02.060: Hearing Examiner – Conflict of Interest: The Examiner shall not conduct or participate in any hearing or decision in which the Examiner has a direct or indirect personal interest which might exert such influence upon the Examiner that might interfere with his or her decision-making process. Any actual or potential conflict of interest shall be disclosed by the Hearing Examiner to the parties immediately upon discovery of such conflict. Participants in the land use regulatory process have the right, insofar as possible, to have the Examiner free from personal interest or prehearing contacts on land use regulatory matters considered by him. If such personal or prehearing interest contact impairs the Examiner’s ability to act on the matter, the Hearing Examiner shall so state and shall abstain therefrom to the end that the proceeding is fair and has the appearance of fairness, unless all parties agree in writing to have the matter heard by said Examiner. If all parties do not agree, and the Hearing Examiner must abstain, the City Manager shall be notified and the City Manager shall appoint a Hearing Examiner Pro Tem to sit in the Hearing Examiner’s stead. (Ord. 5321 Sec. 1, 2010) 4.02.070: Freedom from Improper Influence: No Council Member, city official, or any other person shall attempt to interfere with, or improperly influence the Examiner or Examiner Pro Tem in the performance of his or her designated duties. (Ord. 5321 Sec. 1, 2010) 4.02.080: Duties of the Examiner – Applications and Decisions: The Hearing Examiner shall have the following duties with respect to applications of matters submitted before him or her. Decisions of the Hearing Examiner. The Hearing Examiner shall receive and examine available information, conduct open record appeal hearings or open record public hearings, prepare a record thereof, and enter findings of fact and conclusions based upon these facts, which conclusions shall represent the final action on the application, unless appealed further to Superior Court, as specified in this Section for the following: Open record appeal hearings on the following applications and/or administrative decisions: Lot Line Adjustment; (ii) Accessory Apartment; (iii) Parcel Combination; (iv) Home Occupation; Additional Animals; ---PAGE BREAK--- 4.02 - 3 (vi) Comparable Use; (vii) Manufactured Housing In-fill; (viii) Conditional Use Permit; (ix) Site Plan Approval; Short Plat; (xi) Appeals of SEPA determinations; (xii) Business license denials, revocations; (xiii) Appeals from sign permit decisions; and (xiv) Appeals from administrative land use interpretation decisions. Open record public hearings on the following applications: Variance; applications for variances from the terms of the zoning code and subdivision code; (ii) Preliminary Plats; (iii) Shoreline Permits; and (iv) Planned Development Permits. Such other matters as may be designated by the Council. Open record appeal hearing of a department director’s administrative decision when provided in the Kennewick Municipal Code. The Examiner shall have the power to prescribe rules and regulations for the conduct of hearings under this Chapter, subject to review by the City Council. (Ord. 5391 Sec. 1, 2011: Ord. 5321 Sec. 1, 2010) 4.02.090: Applications: Applications requiring a determination by the Hearing Examiner shall be filed with the Planning Department. Within 28 days of receipt of an application, the Planning Department shall determine whether the application is complete. If complete, the application shall be accepted. If not complete, the Planning Department shall request that the applicant provide additional information as necessary to complete the application. Where applicable, this process shall meet the requirements for completion as set forth in KMC 4.12. The applicant shall be advised of the date of acceptance of the application and of the environmental determination, if one is made. The applicant shall be advised of the date of any public hearing at least 15 calendar days prior to the hearing. If pursuant to KMC 4.12, an open record hearing is required and the threshold determination requires public notice pursuant to KMC 4.12, then the threshold determination shall be issued at least 15 days prior to the open record hearing. (Ord. 5321 Sec. 1, 2010) 4.02.100: Report by Planning Department: When such application has been set for public hearing, if required, the Planning Department shall coordinate and assemble the comments and recommendations of other city departments and other governmental agencies having an interest in the subject application and shall prepare a report summarizing the issues involved, Planning Department findings of fact, recommended conditions and/or recommended action. This report shall be transmitted to the Examiner at least five business days prior to the scheduled hearing. Copies of this report shall be sent to the applicant prior to the hearing and shall be made available to the public for the cost of reproduction prior to the scheduled hearing. (Ord. 5391 Sec. 2, 2011: Ord. 5321 Sec. 1, 2010) ---PAGE BREAK--- 4.02 - 4 4.02.110: Public Hearing: Before rendering a decision on any application for which a public hearing is required, the Examiner shall hold a public hearing thereon. Unless otherwise required by the Kennewick Municipal Code, all hearings conducted by the Examiner shall be open record hearings. Notice of the place and time of the public hearing shall be given as provided in the ordinance governing the application. If none is specifically set forth, such notice shall be given in accordance with KMC 4.12. During the public hearing, the Examiner shall have the authority to administer oaths and preserve order. At the close of the testimony the Examiner may close the public hearing, continue the hearing to a time and date certain, or close the public hearing pending the submission of additional information on or before a date certain. Until a final action on the application is taken, the Examiner may dismiss the application for failure to diligently pursue the application after notice is given to all parties of record. If a project consists of different actions which require separate hearings to be held for each action, one consolidated hearing shall be held as required by KMC 4.12. (Ord. 5391 Sec. 3, 2011: Ord. 5321 Sec. 1, 2010) 4.02.120: Examiner’s Decision – Findings Required: Unless the time is extended pursuant to this Section, within 10 business days of the conclusion of a hearing, or the date set for submission of additional information pursuant to this Chapter, the Examiner shall render a written decision, including findings from the record and conclusions therefrom, and shall transmit a copy of such decision by regular mail, postage prepaid, to the applicant and other parties of record in the case who have requested notice of the decision at the public hearing. The person mailing the decision shall prepare an affidavit of mailing, in standard form, and the affidavit shall become a part of the record of the proceeding. In extraordinary cases, the time period for filing the decision of the Examiner may be extended for not more than 20 business days after the conclusion of the hearing if the Examiner finds that the amount and the nature of the evidence to be considered, or receipt of additional information which cannot be made available within the normal decision period, requires the extension. Notice of the extension, stating the reasons therefor, shall be sent to all parties of record in the manner set forth in this Section for notification of the Examiner’s decision. Conditions. The Examiner’s decision may be to grant or deny the application, or the Examiner may require of the applicant such conditions, modifications and restrictions as the Examiner finds necessary to make the application compatible with the environment and carry out the goals and objectives of the Comprehensive Plan, this Title, the development standards and regulations, other codes and ordinances of the City of Kennewick, and the approved preliminary plat, if applicable. Conditions, modifications, and restrictions which may be imposed shall be founded in the body of legislation approved by the City Council. Performance bonds may be required to ensure compliance with the conditions, modifications, and restrictions. Termination of Decision. The City declares that circumstances surrounding land use decisions change rapidly over a period of time. In order to assure the compatibility of a decision with current needs and concerns, any such decision shall be limited in duration, unless the action or improvement authorized by the decision is implemented Any application, approved pursuant to this Chapter, shall be implemented within one year of such approval unless other time limits are prescribed elsewhere. Any application, which is not so ---PAGE BREAK--- 4.02 - 5 implemented, shall terminate at the conclusion of that period of time and become null and void. The Examiner may grant one extension of time for a maximum of one year for good cause shown. The burden of justification shall rest with the applicant. For large-scale or phased projects, the Examiner may, at the time of approval, set forth time limits for expiration which exceed those prescribed in this Section for such extended time limits as are justified by the record of the action. (Ord. 5391 Sec. 4, 2011: Ord. 5321 Sec. 1, 2010) 4.02.130: Request for Reconsideration: The Planning Director, or an interested party affected by the final decision of the Examiner, who asserts that the Hearing Examiner based that decision on an erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing, may make a written request for review by the Examiner within seven calendar days after the written decision of the Examiner has been rendered. The request for reconsideration shall set forth the specific errors relied upon by such appellant, and the Examiner may, after review of the record, take further action as the Examiner deems proper. The Examiner may request further information which shall be provided within 10 business days of the Examiner’s request. The Examiner’s written decision on the request for consideration shall be transmitted to all parties of record within 10 business days of receipt of the request for reconsideration or receipt of the additional information requested, whichever is later. (Ord. 5391 Sec. 5, 2011: Ord. 5321 Sec. 1, 2010) 4.02.140: Appeal of Final Decisions: The Planning Director, or any interested party affected by the Examiner’s written final decision, may appeal the decision to the Benton County Superior Court within 21 days. (Ord. 5321 Sec. 1, 2010) 4.02.150: Reference to Board of Adjustment or Appeals Commission: All references to the Board of Adjustment and the Appeals Commission in previously enacted Ordinances and Resolutions of the City shall hereafter mean the Hearing Examiner. (Ord. 5321 Sec. 1, 2010)