Hearing Agendas

Decisions

Res. 86-41: Business Rules of the Whatcom County Hearing Examiner

Appealing the Hearing Examiner's Decision to the County Council

The Hearing Examiner

The Hearing Examiner serves as a quasi-judicial officer to hear, evaluate, and decide specific land use and development proposals.

• No legislative function - applies laws and ordinances passed by the County Council.
• Public hearings are generally held weekly, as needed.  Please call for current schedule and hearing location.
• Files are available for public review by appointment.

Location and Hours

User's Guide to the Hearing Examiner System

Introduction

The Whatcom County Council uses the Hearing Examiner system to help the Council hear, evaluate and decide on land use and development  proposals. This guide outlines that system in order to foster public participation.

The Hearing Examiner system started in federal agencies, was first  adopted by local government in 1965 (a county in the State of Maryland), was first used in the State of Washington in 1969 by King County and was launched in Whatcom County in 1978. The system has spread to become common nationally and is widely used in  Washington and Oregon.

The Hearing Examiner System

The Whatcom County Council delegates to the Hearing Examiner the task of taking evidence at a hearing on land use matters.  The Hearing Examiner decides on zoning and shoreline conditional use permits and variances, shoreline substantial development permits, preliminary plats, appeals from county determinations of whether a project requires an environmental impact statement, and appeals of county administrative determinations involving the various land use regulatory codes and policies of the county, including the Shoreline Management Program.  The Hearing Examiner recommends action to the County Council on major development permits and planned unit developments.  The County Council remains the final decision-maker either after a recommendation by the Hearing Examiner or by deciding on appeals from the Hearing Examiner´s decision.

A key distinction to the user of the system is to notice that the  Hearing Examiner has no authority in any matter that requires a legislative action. Zoning and comprehensive planning matters are processed by the Planning Commission.

The Process

Filing an Application

An application for a land use permit is filed with Planning and Development Services. Review by that department follows a standard pattern within a time frame dependent on the complexity of the project. After that review, the staff of Planning and Development Services prepares a recommendation (referred to as a staff report)  to the Hearing Examiner. The Hearing Examiner is not bound by that staff report but gives it weight appropriate to an expert recommendation. The staff report, application, comments  from other county and state agencies, site plans, maps, public comments and other relevant documents are then submitted to the Hearing Examiner.

Pre-Hearing

Once received in the Hearing Examiner's office, an application is  placed on the hearing calendar and reviewed for notification requirements. Upon request, the Hearing Examiner will send any member of the public a written Notice of Hearing three weeks prior to the hearing date. Hearing notices for  preliminary plats, major development permits, planned unit developments and shoreline matters are also published in the official county paper (currently the Bellingham Herald).  All forms of notification encourage interested parties to review the file at the Hearing Examiner's office to learn what documents are in the record. Anyone may request copies at a per-copy cost. Interested parties are also encouraged to submit written comments or  concerns for inclusion in the pre-hearing record. The Hearing Examiner's Office will  provide a copy of the Business Rules (Rules of Procedure) which outline the hearing procedures. Anyone planning to attend a hearing should check with the office the day  before a hearing is scheduled to confirm that the matter will be heard at the time noticed.

The Hearing Examiner is not permitted to have communication with  anyone concerning the merits of the matter at issue except during the hearing. All rules of judicial ethics applicable to any judge are applicable to a Hearing Examiner and the Appearance of Fairness Doctrine fully applies to a Hearing Examiner.

Hearing Procedures

The Hearing Examiner is not a judge and formal courtroom rules of  evidence do not apply, but Washington State law requires that a local government must  regulate land use and development proposals with Constitutional safeguards more like a court than like a legislative body. The term "quasi-judicial" means "as if  judicial". That is why public notice of the Examiner's hearing, the Examiner's written rules of procedure, and the character of the hearing are all designed to provide a meaningful opportunity to be heard, an impartial decision, and the reasoning for that decision in writing, publicly available. Any participant who has reason to doubt that the Hearing Examiner would be impartial in a given matter has a right (and, in fact, a duty)  to raise that issue at the very outset of the hearing.

A hearing begins with a presentation of the staff report and  recommendation prepared by Planning and Development Services, followed by a presentation of the proposed project by the applicant, then testimony from the general public in support of  the application, and finally testimony with concerns, questions or opposition to the  proposal. Testimony may be followed by a brief period of rebuttal in which speakers are asked to respond only to specific issues previously mentioned. No time limit is imposed upon relevant testimony that is not repetitive. A focused sense of relevance is the best tactic in defense of a development proposal, in support of a development proposal, or in opposition to such a proposal.

One of the Constitutional safeguards is to require that testimony be  taken under oath or affirmation of truth. It is important that participants not be intimidated by the fact that they must speak under oath and it is also important that participants understand that testimony at the hearing is intended to present facts rather than philosophical viewpoints. Every speaker must be willing to respond to questions about the statements made. The Examiner rarely permits formal cross examination unless the witness is a qualified expert witness. Generally, any person present may question any speaker whether or not the questioner has testified.

It is not necessary to submit the written text of verbal testimony.  Often, a person will speak briefly to highlight or summarize a more detailed, written statement and then offer the document into the record. In that event it is helpful if copies are provided to opposing parties so that the Examiner does not need to halt the proceeding while opponents one-by-one read the single copy in order to decide if they object to its admittance into the record.

At the close of the hearing participants are advised that a written  decision will be issued within ten working days. Once the hearing is closed, no further testimony, (written or oral) can be accepted and, again, the Hearing Examiner is not permitted to have communication with anyone about the merits of the matter.

Post Hearing

In applications involving a conditional use, variance, lot consolidation relief, shoreline substantial development, shoreline variance, shoreline conditional use, or preliminary plat, the Hearing Examiner will issue a written final  decision. A prompt decision is part of fairness because, when a citizen or business needs a government permit, delay can destroy hopes and dreams. However, a permit issued in haste can destroy the quality of life for a neighbor or a future generation. The balance between  thoroughness and speed is delicate because the Hearing Examiner is required to complete and  publish the written ruling within ten working days of the close of the record, which is usually two weeks after the public hearing.

In applications involving a major development permit or planned unit  development a written recommendation is made to the Whatcom County Council.  According to Whatcom County Code 20.85.340, the County Council must meet to consider the Hearing Examiner´s recommendation within 21 days of receiving it.  At that time, the Council may either approve or deny the recommendation, remand the matter to the Hearing Examiner with instructions; or choose to hold its own hearing if considering enacting a significant change.

Appeals

The applicant, any party of record, or any county department may appeal any final decision of the Hearing Examiner to the County Council.  The appellant is required to file a written notice of appeal at the County Council office within ten days of the final decision of the Hearing Examiner.  A filing fee must be paid to the County Council office at the time the appeal is filed.

 An appeal application must state either:

1) The specific error of law which is alleged, or

2) How the decision is clearly erroneous on the entire record.

In order to appeal to the County Council from the Hearing Examiner's  decision, you must be an applicant or other party of record, which requires either that you testify at the hearing or submit timely, relevant, written argument about the merits  of the matter. (Note that any Whatcom County department may also file an appeal.)

Once an appeal has been filed, the appellant shall obtain a copy of the electronic recording of the hearing examiner’s hearing from the hearing examiner’s office. The appellant shall make arrangements for the preparation of the verbatim transcript of the hearing examiner’s hearing by a professional transcriptionist who will include a signed transcriber certification with the verbatim transcript. The appellant shall forward the transcript to the county council office within 30 days of filing the appeal. The time required to prepare the transcripts varies with the amount of testimony to be transcribed. Once prepared, the original transcript is submitted by the appellant to the County Council for inclusion in the record. The decision of the County Council is based solely on the record and written argument submitted by the parties of record. The Council may uphold or reverse the Hearing Examiner's decision, or remand the matter back to the Hearing Examiner.

A concluding note is the suggestion that you consider attending one  or more hearings in advance of the hearing in which you will participate. A combination of that advance attendance and a review of this guide and the Business Rules should go far toward making your participation effective.

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