15.07.130 Appeals – Hearing examiner

15.07.130 Appeals – Hearing examiner.

In order to hear and decide appeals of orders, decisions or determinations made by the building official or fire code official relative to the application and interpretation of this code, there shall be and is hereby created a board of appeals consisting of the city of Auburn’s appointed hearing examiner.

1. Appointment and Term. In order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of this code, except as provided in Chapter 70.92 RCW, a hearing examiner shall be appointed by the mayor as provided elsewhere in this code.

2. Duties. The examiner shall conduct an appeal hearing as provided herein, enter findings of fact and conclusions of law based upon those facts and a decision which is final action subject to appeal as provided herein.

3. 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 their 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 hearing process have the right, insofar as possible, to have the examiner free from personal interest or pre-hearing contacts on issues considered by them. It is recognized that there is a countervailing public right to free access to public officials on any matter. If such personal or pre-hearing interest contact impairs the examiner’s ability to act on the matter, the hearing examiner shall 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 mayor shall be notified and the mayor shall appoint a hearing examiner pro tem to sit in the hearing examiner’s stead.

4. 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 tempore in the performance of their designated duties.

5. Duties of the Examiner – Applications and Decisions. For cases and actions as prescribed by ordinance, the examiner shall receive and examine available information, conduct public hearings, prepare a record thereof, and enter findings of fact, conclusions based upon those facts, and a decision. As provided herein, such decision is final action subject to appeal as provided herein.

6. Application of Appeal and Filing Fee – Form of Appeal. Any person receiving a decision or determination made by the building official relative to the application and interpretation of this code may appeal such determination or decision under this code within 20 calendar days of receipt of the decision, or by the end of the following business day when the twentieth day falls on a nonbusiness day, by paying the filing fee as set forth in the city of Auburn fee schedule and filing with the department of community development a written application of appeal containing:

a. A heading in the words: “Before the Hearing Examiner of the City of Auburn.”

b. A caption reading: “Appeal of Building Official or Fire Code Official Decision or Determination,” giving the names of all appellants participating in the appeal.

c. A brief statement setting forth the legal interest of each of the appellants in the building or the land involved in the determination or decision.

d. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant.

e. A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed the protested action should be reversed, modified or otherwise set aside.

f. The signatures of all parties named as appellants and their official mailing addresses.

g. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.

7. Processing Application of Appeal. Upon receipt of any application of appeal filed pursuant to this section together with the filing fee in the amount as set forth in the city of Auburn fee schedule, the building official or fire code official shall, within two working days of receipt of an application, determine whether the application is complete. If complete, the application shall be accepted. If not complete, the building official or fire code official shall request that the applicant provide additional information as necessary to complete the application. The applicant shall be advised of the date of acceptance of the application.

8. Scheduling and Noticing Appeal for Hearing. As soon as practicable after acceptance of the written application of appeal, the examiner shall fix a date, time and place for the hearing of the appeal. Such date shall be not less than 10 days nor more than 90 days from the date the application of appeal was filed with the building official or fire code official. Written notice of the time and place of the hearing shall be given at least 10 days prior to the date of the hearing to each appellant by the examiner either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at their address shown on the appeal.

9. Effect of Failure to Appeal. Failure of any person to file an appeal in accordance with provisions of this section shall constitute a waiver of any right to an administrative hearing and adjudication of the building official’s or fire code official’s decisions or determinations.

10. Scope of Hearing on Appeal. Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.

a. Record. A record of the entire proceedings shall be made by tape recording or by any other means of permanent recording determined to be appropriate by the examiner.

b. Reporting. The proceedings at the hearing shall also be reported by a phonographic reporter if requested by any party thereto. A transcript of the proceedings shall be made available to all parties upon request and upon payment of the fee prescribed therefor. Such fees may be established by the examiner, but shall in no event be greater than the cost involved.

c. Continuances. The examiner may grant continuances for good cause shown.

d. Oaths – Certification. In any proceedings under this section, the examiner has the power to administer oaths and affirmations and to certify to official acts.

e. Reasonable Dispatch. The examiner shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives.

f. Notice of Hearing. The notice to appellant shall be substantially in the following form, but may include other information:

You are hereby notified that a hearing will be held before (name of hearing examiner) at _________________ on the ___ day of _______, 20__ at the hour of ____, upon the notice and order served upon you. You may be present at the hearing. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things by filing an affidavit therefor with (name of hearing examiner).

i. The examiner may issue subpoenas for the attendance of witnesses or the production of other evidence at a hearing upon the written demand of any party. The issuance and service of such subpoena shall be obtained upon the filing of an affidavit therefor which states the name and address of the proposed witness; specifies the exact things sought to be produced and the materiality thereof in detail to the issues involved; and states that the witness has the desired things in their possession or under their control. A subpoena need not be issued when the affidavit is defective in any particular.

ii. Penalties. Any person who refuses without lawful excuse to attend any hearing or to produce material evidence in their possession or under their control as required by any subpoena served upon such person as provided for herein shall be guilty of a misdemeanor punishable as provided in ACC 1.24.010.

i. Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.

ii. Oral Evidence. Oral evidence shall be taken only on oath or affirmation.

iii. Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state.

iv. Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.

v. Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.

vi. Rights of Parties. Each party shall have these rights among others:

(A) To call and examine witnesses on any matter relevant to the issues of the hearing;

(B) To introduce documentary and physical evidence;

(D) To impeach any witness regardless of which party first called them to testify;

(E) To rebut the evidence against them;

(F) To represent themselves or to be represented by anyone of their choice who is lawfully permitted to do so.

(A) What May Be Noticed. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state or official records of departments and ordinances of the city.

(B) Parties to Be Notified. Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein, or appended thereto.

(C) Opportunity to Refute. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the official noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the hearing examiner.

(D) Inspection of the Premises. The hearing examiner may inspect any building or premises involved in the appeal during the course of the hearing; provided, that (1) notice of such inspection shall be given to the parties before the inspection is made, (2) the parties are given an opportunity to be present during the inspection, and (3) the hearing examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the hearing examiner.

viii. Limitation of Testimony. The examiner has the right to limit the time a witness may testify.

12. Form and Effective Date of Decision. The decision shall be in writing and shall contain findings of fact, conclusions of law, a determination of the issues presented, and the requirements to be complied with. A copy of the decision shall be delivered to the appellant personally or sent to them by certified mail, postage prepaid, return receipt requested. The effective date of the decision shall be as stated therein.

13. Rights Granted – Right to Appeal. Nothing in this section shall be construed as granting any right of judicial review which does not previously exist in law. The decision of the examiner or examiner pro tem shall be final and exclusive. A writ of review must be sought in the superior court of King or Pierce County, if at all, by an aggrieved party or person.

14. Limitations of Authority. The examiner shall have no authority relative to interpretation of the administrative provisions of this code or the technical codes nor shall the examiner be empowered to waive requirements of this code or the technical codes. (Ord. 6763 § 3, 2021; Ord. 6469 § 2, 2013; Ord. 6104 § 7, 2007; Ord. 5874 § 4, 2004.)