Hearing Examiner - Appeals

Kirkland Municipal Code Section 3.34.050 requires that the Hearing Examiner adopt rules of procedure to govern hearings conducted by the Hearing Examiner pursuant to the Code.

A. Unless otherwise provided by the Kirkland Municipal Code, these Rules apply to all matters for which the Kirkland Municipal Code allows an appeal to the Hearing Examiner. The Rules do not include all ordinance or Kirkland Municipal Code requirements. Parties are responsible for familiarizing themselves with those requirements. (Note: Hearings on Notices of Civil Violation issued pursuant to Kirkland Municipal Code Chapter 1.12 are governed by the Rules of Procedure for Code Enforcement Cases before the City of Kirkland Hearing Examiner.)

B. When questions of practice and procedure arise that are not addressed by these Rules, the Hearing Examiner shall determine the practice or procedure most appropriate and consistent with providing fair treatment and due process. 

A. “Appeal” – a challenge to a decision or other City action where the Code authorizes the Hearing Examiner to review and decide the challenge.

B. “Appellant” – the person, organization or other entity who files a complete and timely appeal of a City decision or other appealable action.

C. “Applicant” – the person, organization or other entity who files an application or otherwise formally requests a permit or other type of City action that is subject to an appeal to the Hearing Examiner.

D. “Code” – Kirkland Municipal Code as adopted or hereafter amended.

E. “Department” – the department or other City entity responsible for the decision or action that is subject to appeal to the Hearing Examiner.

F. “Discovery” - the exchange and sharing of information relevant to, or likely to lead to information relevant to an issue included in an appeal to the Hearing Examiner.

G. "Motion" - a request made to the Hearing Examiner for an order or other ruling.

H. "Order" - A ruling, instruction, or other directive issued by the Hearing Examiner in response to a request or motion by a party, or on the Hearing Examiner's own initiative. Where allowed by law, an order may direct how the Hearing Examiner's decision is to be implemented and may be issued as part of that decision or separately.

I. "Party" - the person, group or other entity that has filed an appeal; the City department or other agency that made the decision or took the action that is the subject of the appeal; the person, group or other entity who filed the application or request for a permit or other type of City authorization that is the subject of the appeal; and the owner of the property subject to the City decision or other action. 

Any documents intended for the Hearing Examiner shall be filed during regular business hours with the City department that made the decision being appealed. Once an appeal is filed and set for hearing, the Hearing Examiner may allow for alternative methods of filing for subsequent documents. 

All documents filed for consideration by the Hearing Examiner, except for the initial appeal, shall also be served by the party filing the documents on all other parties, during regular business hours, on the date they are filed. The Department is not responsible for copying a party’s documents or delivering them to any other party. The Hearing Examiner may allow for service of documents by methods other than personal service or service by mail.

A. On the Hearing Examiner’s own initiative, or at the request of a party, the Hearing Examiner may hold a conference prior to the hearing to consider: 

1. Identification, clarification and simplification of the issues; 
2. Disclosure of witnesses to be called and exhibits to be presented; 
3. Discovery; 
4. Prehearing motions; 
5. Other matters deemed by the Hearing Examiner appropriate for the orderly and efficient disposition of the appeal.

B. Prehearing conferences may be held by telephone conference call.

C. The Hearing Examiner shall give notice to all parties of any prehearing conference. Notice may be written or oral.

D. All parties shall appear or be represented at a prehearing conference unless a party has waived the right to be present or represented and been excused by the Hearing Examiner.

E. Following the prehearing conference, the Hearing Examiner may issue an order reciting the actions taken and deadlines imposed, and ruling upon motions made at the conference.

The Hearing Examiner conducting the hearing has the duty to ensure a fair and impartial hearing, to take all necessary action to avoid delay in the proceedings, to gather facts necessary for making the decision, and to regulate the course of the hearing and the conduct of the parties and others so as to maintain order. 

The burden of proof on appeal shall be as specified by the applicable Code provision or applicable state law. 

When a party consists of more than one person, or is a group or other entity, the party shall designate an individual to be its representative and inform the Hearing Examiner of the contact information for the designated representative. The rights of such an appellant shall be exercised by the person designated as the party representative. Notice or other communication to the party representative is notice or communication to the party. 

A. All parties appearing before the Hearing Examiner shall conduct themselves with civility and courtesy to everyone involved in the hearing.

B. No one shall communicate with the Hearing Examiner outside the hearing in an attempt to discuss the merits or influence the outcome of an appeal.

On the motion of a party, or at the Hearing Examiner's own initiative, the Hearing Examiner may require that the appellant provide clarification, additional information, or other submittals that the Hearing Examiner deems necessary to make the appeal complete and understandable. 

An appellant may file one amendment to an appeal within 5 working days of the date the appeal was filed. An amendment may explain or clarify an issue already included in the appeal; it may not add a new issue. Amendment after the period provided by this Rule may be requested by motion. In determining whether to allow a later amendment, the Hearing Examiner shall consider whether the fair hearing opportunity of other parties would be prejudiced by the amendment. 

A. An appeal may be withdrawn only by the appellant in writing.

B. When an appeal is made by more than one person, or by a group or other entity, the appeal may be withdrawn only by the person designated as the party representative.

C. An appellant's request to withdraw an appeal shall be granted as a matter of right and the appeal dismissed. 

When a party is represented by an attorney, the attorney shall file a notice of appearance with the Hearing Examiner and serve a copy on the other parties at the earliest possible time in the proceedings. 

Appropriate prehearing discovery is permitted. Discovery is generally left to the parties, and unless otherwise provided by the Hearing Examiner, the Hearing Examiner should not be copied on discovery documents, or correspondence and electronic-mail about discovery matters. In response to a motion, or on the Hearing Examiner's initiative, the Hearing Examiner may order discovery that is being withheld, or prohibit or limit discovery that the Examiner determines is unduly burdensome, harassing, or unnecessary.

The Hearing Examiner may dismiss an appeal by an order of default where, without good cause, the appellant fails to appear, or is unprepared to proceed at a scheduled and properly noticed hearing. 

The Hearing Examiner will inspect the property subject to an appeal prior to the close of the record. Failure to conduct a site inspection shall not affect the validity of the Hearing Examiner's decision. 

A. All witnesses testifying at hearing must take an oath or affirmation to be truthful in their testimony and are subject to cross examination by the other party.

B. Evidence that is relevant to the appeal and comes from a reliable source is admissible at hearing. Such evidence is that which responsible people would commonly rely upon in the conduct of their important affairs.

C. The Hearing Examiner may impose reasonable limits on the number of witnesses testifying at the hearing and the nature and length of the testimony, and may allow for written testimony and other evidence to be submitted. 

A. A scheduled hearing may be continued to a different date for good cause as determined by the Hearing Examiner. Written notice of the date, time and place of the continued hearing shall be provided to each party, but need not observe the time requirements for the original notice.

B. If the Hearing Examiner determines at hearing that there is good cause to continue the hearing, and then and there specifies the date, time and place of the continued hearing, no further notice is required. 

The order of presentation at appeal hearings is generally as follows:

1. Examiner’s introductory remarks; 
2. Parties' opening statements (optional); 
3. City’s presentation of evidence; 
4. Appellant’s presentation of evidence; 
5. Applicant’s presentation of evidence (if applicable); 
6. Testimony from others entitled to appeal (if applicable); 
7. Parties' rebuttal evidence; 
8. Parties' closing arguments.

The Hearing Examiner may modify the order of hearing to promote the clear and fair presentation of evidence. With the Hearing Examiner’s approval, the order of presentation may be modified by agreement of the parties. 

At the conclusion of the hearing, the Hearing Examiner may close the hearing, but leave the record open to receive additional evidence from the parties or for other good purpose. Parties shall be provided notice of any evidence received after hearing and have the opportunity to review the evidence and file evidence or argument rebutting it. 

A. Issuance. The Hearing Examiner shall issue a written decision and provide a copy to each party representative within the time required by the applicable Code provision. Unless otherwise prescribed by Code, the Hearing Examiner's decision may affirm, reverse, modify, or remand the decision or other action being appealed.

B. Contents. A decision of the Hearing Examiner on an appeal shall include, but not be limited to, a statement regarding the following:

1. Background. The nature and background of the proceeding, including identification of party representatives participating in the hearing, prehearing determinations, and similar information. 
2. Findings. The individual facts that the Hearing Examiner finds relevant, credible, and requisite to the decision, based on the evidence presented at hearing and matters officially noticed. 
3. Conclusions. Legal and factual conclusions based upon specific provisions of law and the findings of fact. 
4. Decision. The Hearing Examiner's decision as to the outcome of the appeal based upon a consideration of the whole record and the applicable burden of proof. 
5. Information regarding any subsequent procedural steps for appealing the Hearing Examiner's decision.

If applicable, the decision may also include an order disposing of contested issues and/or directing parties to take actions consistent with the decision. 

The Hearing Examiner's decision shall be provided to the parties in accordance with the Code. 

Hearing Examiner decisions may be appealed as provided by law.