HomeMy WebLinkAbout4778 ORDINANCE NO. 4778
AN ORDINANCE of the City Council of the City of Bremerton, Kitsap County, Washington,
adding a new Chapter 2.13 Administrative Hearing Examiner to the Bremerton
Municipal Code regarding the creation of an Administrative Hearing Examiner
position and describing the duties with regards thereto, amending Bremerton
Municipal Code Sections 2.12.080, 2.12.140, 17.04.070, 20.04.100, 21.02.450,
21.02.840(c), 21.02.845(d), 21.02.860(d), 21.02.880(b), 21.02.935(b)(c)(d),
21.02.945(c)(2), 21.02.945(d), 21.02, Appendix Figure 840, 21.02, Appendix
Figure 895(a), 21.12.200(e) and 21.12.210(a)(1)(B), and repealing Bremerton
Municipal Code Sections 17.04.080, 17.04.090, and 17.04.100
The City Council of Bremerton makes the following findings:
Section 1. There is hereby created a new Chapter 2.13 Administrative Hearing
Examiner to the Bremerton Municipal Code which shall read as follows:
2.13.010 Position established.
The position of Administrative Headng Examiner is hereby
established.
2.13.020 Purpose.
The intended purpose in creating an Administrative Hearing
Examiner position is to:
(1) Separate the land use regulatory function from the land use
planning process;
(2) Ensure procedural due process and appearance of fairness
in regulatory heatings and decisions;
(3) Provide an efficient and effective land use regulatory system
which integrates the public headng and decision-making processes
for land use matters;
(4) Provide for consistency and predictability in decision making
and the application of policies and regulations adopted by the city;
and
(5) Provide a forum for conducting public headngs required by
the Bremerton Municipal Code and handling appeals of
administrative matters as assigned.
Page 1 of 9
2.13.030 Selection.
The Administrative Headngs Examiner shall be appointed by the
Mayor subject to confirmation by the City Council. If the
Administrative Headng Examiner is a city employee she shall be a
part of the City's Civil Service system. The Administrative Headng
Examiner may be retained on a professional service contract for a
term and on conditions determined appropriate by the City Council.
Said contract may also provide for Examiner(s) pro tem to serve in
the absence of the Administrative Headng Examiner on such terms
and conditions deemed appropriate by the Council. The Examiner(s)
pro tern shall be selected by the Mayor subject to confirmation by the
City Council.
2.13.040 Qualification and removal.
Examiners shall be appointed solely with regard to their
qualifications for the duties of their office and will have such training
and experience as will qualify them to conduct administrative or
quasi-judicial hearings on regulatory enactments and to discharge
the other functions conferred upon them. Examiners shall hold no
other elective or appointive office or position with the City of
Bremerton. An Examiner pro tem may be removed by the Mayor at
will. However, the Administrative Hearing Examiner may only be
removed for just cause pursuant to Civil Service Regulations.
Provided, further, if the Administrative Hearing Examiner is retained
on a professional services contract then he may only be terminated
in accordance with the contract terms.
2.13.050 Improper influence, conflict of interest and appearance
of fairness.
No city official, elective or appointive, shall attempt to
influence the Administrative Headng examiner in any matter officially
before him so as to constitute misconduct of a public office under
Chapter 42.20.RCW or a violation of the appearance of fairness
doctrine. No member of the council shall participate in any
proceedings on appeal from the Administrative Hearing Examiner's
decision if to do so will constitute a conflict of interest or violation of
the appearance of fairness doctrine. The Administrative Hearing
Examiner shall conduct all proceedings in a manner to avoid conflicts
of interest or other misconduct and to avoid violations of the
appearance of fairness doctrine. If such conflicts or violations
cannot be avoided in a particular case, the examiner shall assign an
examiner pro tem to act in his absence.
Page 2 of 9
2.13.060 Organization, rules.
The Administrative Headngs Examiner is empowered to adopt rules
for the scheduling and conduct of headngs and other procedural
matters related to the duties he is required to perform. The rules
shall include any procedural rules for conducting headngs as set
forth in the Code, and shall become effective upon the Headngs
Examiner filing the odginal set of rules with the City Clerk. The rules
shall provide for the process to be effective and efficient while
assudng that the participants are afforded an opportunity to present
their case without unnecessary emphasis upon formal procedure.
The examiner shall have the authority to subpoena witnesses, and to
the extent necessary to assure a fair heating and to afford each
party the opportunity to present their case, may allow limited
discovery if it is not unduly burdensome, will not unnecessarily delay
the proceedings, and the information is not otherwise available.
2.13.070 Jurisdiction.
(1) The Administrative Headng Examiner shall have jurisdiction
over appeals of administrative decisions specified in Title 21 of the
Bremerton Municipal Code, as amended, and such other matters
that may be assigned to the Administrative Headng Examiner by the
provisions of other city ordinances or by the direction of the city
council.
(2) Unless otherwise indicated, all other references in the
Bremerton Municipal Code to a "hearing examiner" shall mean the
municipal court headng examiner established pursuant to Chapter
2.62 of the Bremerton Municipal Code.
(3) To conduct public hearings on all Local Improvement
Districts, Road Improvement Districts and Utility Local Improvement
Districts and make final decisions with regards thereto unless
applicable law requires the final decision to be made by the City
Council. In the case where the City Council is required to be the final
decision-maker then the Examiner shall conduct the public headng
and forward the record to the City Council along with the Examiner's
recommendations.
(4) To issue special use permits and variances.
(5) To conduct appellate headngs and render decisions
interpreting the Zoning Ordinance when property owners dispute the
Planning Department's interpretation of the zoning ordinance.
(6) Where an appeal of a department director's decision is
provided elsewhere in the Code then any other provision of the Code
notwithstanding, the Administrative Hearing Examiner shall have
jurisdiction to hear and decide the appeal.
Page 3 of 9
(7) To conduct the open record pre-decision public headngs
required by Code section 21.02.850 and prepare findings and
conclusions for the City Council's consideration with regard to the
Type IV action.
(8) To hear appeals of decisions made as authorized by the
Uniform Codes set forth in Bremerton Municipal Code Chapter
17.04.
Section 2. Bremerton Municipal Code Section 2.12.080 is amended to read as follows:
2.12.080 Powers and Duties.
The Planning Commission may:
(a) Review and recommend to the Council the adoption
of coordinated comprehensive planning and land use objectives for
the development of the City or particular areas of the City;
(b) Review and recommend to the Council the adoption
of regulations and code amendments which implement the City's
comprehensive planning objectives;
(c) Review and recommend to the Council the adoption
of short plat regulations and long subdivision regulations;
(d) Participate in regional planning activities or serve on
a regional planning commission;
(e) Make rules and regulations for the conduct of its
business.
Section 3. Bremerton Municipal Code Section 2.12.140 is amended to read as follows:
2.12.140 Ratification by Council - Appeal.
The planning commission may recommend to the Council
the adoption of comprehensive plans and regulations for the physical
development of the City. Such recommendations must be ratified by
the Council before the plan or regulation becomes effective.
Section 4. Bremerton Municipal Code Section 20.04.100 is amended to read as
follows:
20.04.100 Procedure Appeal to Administrative Hearings
Examiner.
Any person aggrieved by the decision of the planning
director may request a review of that decision, by the Administrative
Hearing Examiner. Such request must be in writing on a form to be
provided by the City and delivered to the Planning Department, with
the applicable appeal fee, within five (5) working days from the date
of the Planning Director's Decision. Such appeal shall be heard by
Page 4 of 9
the Hearing Examiner under the same procedures established for
headngs of conditional use permits.
Section 5. Bremerton Municipal Code Section 17.04.070 is amended to read as
follows:
17.04.070 Appeals Boards.
Appeals of the Uniform Building Code, Uniform Plumbing Code,
Uniform Fire Code, Uniform Code for the Abatement of Dangerous
Buildings and the Bremerton Housing Code shall be heard by the
Administrative Headng Examiner, whose decision shall be final.
Section 6. Bremerton Municipal Code Section 21.02.450 is amended to
read as follows:
21.02.450 Appeal of Director's Determination.
(a) Any party of record may appeal the determination of the
Director that the Final PUD Plan, including any minor amendments,
is not in conformance with the Preliminary Plan that was approved
by the City Council. Within fourteen (14) calendar days from the
date of the Director's determination, a written notice of appeal to the
Administrative Headng Examiner may be filed.
(b) The hearing examiner shall uphold or reverse the Director's
determination. The decision of the hearing examiner shall be final.
(c) The Director's determination of lack of substantial
conformance, or subsequent ratification of that determination by the
headng examiner shall require the PUD applicant to bring the Final
Plan into substantial conformance with the Preliminary Plan, or
submit a new Preliminary Plan.
Section 7. Bremerton Municipal Code Section 21.02.840(c) is amended to read as
follows:
(c) Appeal: Type I decisions may be appealed to the Administrative
Hearing Examiner within fourteen (14) calendar days from the date
of the decision. The hearing examiner will conduct an open record
appeal headng. (See Figure 840).
Section 8. Bremerton Municipal Code Section 21.02.845(d) is amended to read as
follows:
(d) Appeal: Type II decisions may be appealed to the Administrative
Headng Examiner within fourteen (14) calendar days from the date
of decision. The hearing examiner will conduct an open record
appeal headng.
Page 5 of 9
Section 9. Bremerton Municipal Code Section 21.02.860(d) is amended to read as
follows:
(d) Appeals: An appeal of the local shoreline permit decision may
be filed with the Administrative Headng Examiner first, with a second
appeal to the Shoreline Headngs Board (SHB), or may be filed
directly with the SHB.
(1) Decisions on Substantial Development Permits may be
appealed to the Administrative Headng Examiner within fourteen
(14) days of the date of the decision, and considered in an open
record appeal headng, or
(2) Those decisions listed in (d)(1) above or the
Administrative Headng Examiner decisions on appeals of eadier
decisions, may be appealed to the Shoreline Headngs Board by
filing a Petition for Review within twenty-one (21) days of the date of
the Department of Ecology's review and decision.
(3) The decision of the Department of Ecology pertaining
to the adoption of, or amendment to, the Shoreline Master Program
may be appealed to the Central Puget Sound Growth Management
Heating Board per RCW 36.70A.250 through 320.
(4) Appeals to the headng examiner shall be decided
within (30) thirty days of the filing date. Appeals to the Shoreline
Headngs Board will be decided within 180 days.
Section 10. Bremerton Municipal Code Section 21.02.880(b) is amended to read as
follows:
(b) Pre-decision and appeal open record public headngs
shall be conducted by the City Council and Administrative Headng
Examiner in accordance with their rules for public headngs and
appeals.
Section '11 Bremerton Municipal Code Section 21.02.935(b) is amended to read as
follows:
(b) Appealable Decisions:
(1) Type I administrative decisions may be appealed to
the Administrative Headng Examiner.
(2) Type II administrative decisions may be appealed to
the Administrative Headng Examiner.
(3) Type III decisions may be appealed to the Supedor
Court.
(4) Type IV Headng Examiner decisions may be
appealed to the Supedor Court.
(5) Shoreline Substantial Development Permits may be
appealed within fourteen (14) days to the Administrative Headng
Page 6 of 9
Examiner, or within twenty-one (21) days to the Shorelines Hearings
Board.
Section 12. Bremerton Municipal Code Section 21.02.935(c) is amended to read as
follows:
(c) Parties of Record: Only parties of record may initiate an
appeal to the Headng Examiner (Types I and II). Parties of record
shall include:
(1) The applicant.
(2) Anyone who participated in a public meeting on the
application.
(3) Anyone who submitted written comments conceming the
application (excluding persons who have only signed petitions or
mechanically produced form letters).
Section 13. Bremerton Municipal Code Section 21.02.935(d) is amended to read as
follows:
(d) Time to File: An appeal to the Administrative Headng
Examiner or Supedor Court must be filed within (14) days following
issuance of the written decision. Other requirements apply to
appeals to the Shorelines Headngs Board. All local appeals may be
delivered to the Department of Community Development (DCD) by
mail, personal delivery, or by FAX before 5:00 PM on the last
business day of the appeal pedod. (see: Computation of Time,
section (f) below).
Section '14. Bremerton Municipal Code Section 21.02.945(c)(2) is amended to read as
follows:
(2) An order shall be obeyed immediately,
notwithstanding the filing of an appeal.
Section '15. Bremerton Municipal Code Sections 21.02.945(d) is amended to read as
follows:
(d) Revocation:
(1) A revocation action may be initiated by the Director of
Community Development. Provided, final action shall not be taken
by the Director of Community Development until after a public
hearing is held.
(2) The Administrative Headng Examiner may revoke a
variance, administrative variance, special use permit or
administrative special use permit.
Page 7 of 9
Section 16. Bremerton Municipal Code Section 21.02 Appendix Figure 840 is hereby
amended as set forth in Exhibit A attached hereto and by reference incorporated herein.
Section 17. Bremerton Municipal Code Section 21.02 Appendix Figure 895(a) is hereby
amended as set forth in Exhibit B attached hereto and by reference incorporated herein.
Section 18. Bremerton Municipal Code Section 21.12.200(e) is amended to read as
follows:
(e) Applications not requiring a final decision by the City
Council that are conditioned or denied on the basis of SEPA by a
nonelected official, shall be appealable to the Administrative Heating
Examiner. Such appeal may be perfected by the appellant by giving
notice to the responsible official within ten (10) days of the decision
being appealed. The headng before the Headng Examiner shall be
an open record appeal. However the decision of the SEPA Official
shall be presumed correct.
Section 19. Bremerton Municipal Code Section 21.12.210(a)(1)(B) is amended to read as
follows:
(B) A DS: The appeal must be made to the Administrative
Headng Examiner within ten (10) days of the date the DS is issued.
Section 20. Bremerton Municipal Code Sections 17.04.080, 17.04.090 and 17.04.100
are hereby repealed.
Section 21. The provisions of this Ordinance shall apply to all applications for which a
required headng has not yet been held as of this Ordinance's effective date.
Section 22. This Ordinance shall be in full force and effect ten (10) days after posting
and publication as required by law. A summary of this Ordinance may be published in lieu of the
entire Ordinance, as authorized by State law.
Section 23. If any section, subsection, paragraph, sentence, clause or phrase of this
ordinance is declared unconstitutional or invalid for any reason, such invalidity shall not affect the
validity or effectiveness of the remaining portions of this ordinance.
Page 8 of 9
Section 24. The effective date of this Ordinance shall be ten (10) days from the date of
passage and publication by the Mayor and City Council.
APPROVED by the City Council of the City of Bremerton this 10b~ day of October, 2001.
PASSED by the City Council of the City of Bremerton this 17~ day of October, 2001.
.... :';JOHN I~,W
City Council President
APPROVED this 1~ day of.~~__.~~O~
Mayor
ATTEST:
KATHLEEN McCLUSKEY [
City Clerk
Published: 14)- ~ -~/
Effective Date: //- 5'- C)I
Ordinance No. ,,~ 17,,°
Page 9 of 9
EXHIBIT A
Figure 840
PERMIT PROCESSING SUMMARY
Hearing Hearing City Council
DECISIONS Administrative Examiner Open Examiner Closed Record
Decision Hearing and Pre-Decision Decision
Decision Open Hearing
Type I Decisions
(without notice) * * (on appeal)
Type II Decisions
(notice required)
· Short Subdivision * * (on appeal)
· Admin. Special Use Permit * * (on appeal)
· Minor Plat Amendment * * (on appeal)
· Wetland assessment / permit * * (on appeal)
· SEPA Determination * * (on appeal)
· Env. Area Determination * * (on appeal)
· Design Review * * (on appeal)
· Interpretation of code * * (on appeal)
Type III Decisions
· Final Subdivision Plat .
· Variance .
· Zoning Special Exception *
· Non-admin. Special Use *
Permit
Type IV Decisions
· Rezone . .
· Development Agreement . .
· Prelim. Subdivision Plat . .
· Binding Site Plan . .
· Vacation of Subdivision . .
· Planned Unit Development * .
· PUD Major Amendment * .
Shoreline Decisions
· Substantial Dev. Permit * * (on appeal)
· Conditional Use Permit .
· Variance .
· Permit Revision * * (on appeal)
Title 21 Appendix
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AFFIDA VIT OF PUBLICATION
County of lGtsap, State of Washington
No. 161375
I, Melinda Monroe, being first duly sworn on oath, deposes and says: That she is now, and at all
times embraced in the publication herein mentioned was the principal clerk of the printers and
publishers of THE SUN; that said newspaper has been approved as a legal newspaper by order of
the /superior Court of the Count of Kitsap, in which County it is published and is now and has
been for more than six months prior to the date of the publication hereinafter referred to,
published in the English language continually as a daily newspaper in Bremerton, Kitsap County,
Washington, and is now and during all of said time, was printed in an office maintained in the
aforesaid place of publication of said newspaper; that the following is a true text of a legal
advertisement as it was published in regular issues (and not in supplement form) of said
newspaper on the following dates, to wit: October 26,2001, during all of said period. That the
full amount of the fee charged for the foregoing publication is the sum of $54.62 which amount
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Notary Public in and for the State of Washington,
ORDINANCE NO. 4778.
AN ORDINANCE of the City Council of the City of Bremerton, Kitsap
County, Washington, adding a new Chapter 2.13 Administrative
Hearing Examiner to the Bremerton Municipal Code regarding the
creation of an Administrative Hearing Examiner position and
describing the duties with regards thereto, amending Bremerton
Municipal Code Sections 2.12.080, 2.12.140, 17.04.070, 20.04.100,
21.02.450, 21.02.840(c), 21.02.845(d), 21.02.860(d),
21.02.880(b), 21.02.935(b) (c) (d), 21.02.945(c) (2), 21.02.945(d),
21.02, Appendix Figure 840, 21.02, Appendix Figure 895(a),
21.12.200(e) and 21.12.210(a) (1) (B), and repealing Bremerton
Municipal Code Sections 17.04.080, 17.04.090, and 17.04.100-
Section 24. The effective date of this Ordinance shall be ten
(10) days from the date of passage and publication by the Mayor
and City Council.-
APPROVED by the City Council of the City of Bremerton this 10th
day of October, 2001.-
PASSED by the City Council of the City of Bremerton this 17th day
of October, 2001.-
., \ '.
The full text of this ordinance is available in the City Clerk's
Office, 239 Fourth Street, "Bremerton, WA 98337.-
Octoboer 26, 2001..161375-