20.210.120 Public Hearing Procedures | Vancouver Municipal Code

20.210.120 Public Hearing Procedures.

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1. Proposed land use actions shall be reviewed as indicated in Table 20.210.020-1. All listed actions reviewed by the Hearings Examiner, Planning Commission, and City Council shall be conducted at a public hearing according to the applicable procedures in the Vancouver Municipal Code, and decisions shall be issued based on compliance with applicable standards, pursuant to this title.

2. The planning official shall have the authority to assign the review body in cases in which this chapter and the Vancouver Municipal Code do not clearly identify the appropriate review body. The act of assigning the review body shall be a Type I decision.

B. Hearing requirements. Hearing requirements applicable to the Hearings Examiner and Planning Commission actions (appeals of Type I and II applications and initial review of Type III applications and applicant-initiated Type IV Map Amendment applications).

1. Notice of hearing. Notice of a Type I or II appeal hearing shall be given by the planning official in the following manner (notice of hearing for a Type III application or applicant-initiated Type IV Map Amendment application is governed by Section 20.210.060(E) VMC):

a. At least 10 calendar days prior to the hearing date, notice shall be sent by mail to:

1. The applicant and all owners of the site that is the subject of the application;

2. All parties of record;

3. Any neighborhood or community organization recognized by the City Council and whose boundaries include the site;

4. Any person who has submitted a written request to be notified; and

5. The appellant and all parties to the appeal.

b. The planning official shall cause an affidavit of mailing of notice to be prepared and made a part of the file, which demonstrates the date that the required notice was mailed to the necessary parties.

c. At least 10 calendar days prior to the hearing, notice of the hearing shall be given in a newspaper of general circulation in the city. An affidavit of publication concerning such notice shall be made part of the administrative record.

d. At least 10 calendar days prior to the hearing, notice of the hearing shall be posted on the site, pursuant to subsection (2) below. An affidavit of posting concerning such notice shall be prepared and shall be submitted and made part of the administrative record.

2. Content of notice. Notice of a Type I or II appeal hearing shall contain the following information:

a. Explain the nature of the appeal.

b. List the applicable criteria that apply to the appeal issues.

c. Set forth the street address or other easily understood geographical reference to the subject property.

d. State the date, time, and location of the hearing.

e. State that the failure to raise an issue at the hearing, in person, or by letter, or failure to provide statements or evidence sufficient to afford the decision-maker an opportunity to respond to the issue may preclude further appeal based on that issue.

f. Include the name of a city representative to contact and the telephone number where additional information may be obtained.

g. State that a copy of the appeal and all documents and evidence submitted by or on behalf of the appellant and the applicable criteria are available for inspection at no cost and that copies shall be provided at a reasonable cost.

h. State that a copy of the staff report shall be available for inspection at least 10 calendar days prior to the hearing, and that a copy shall be provided at a reasonable cost.

i. Include a general explanation of the requirements for submission of testimony and the procedure for conducting hearings.

3. Staff report issuance. At least 10 calendar days before the date of the hearing for a Type III application, an applicant-initiated Type IV Map Amendment application or Type I or II appeal hearing, the planning official shall issue a written staff report and recommendation regarding the application(s), shall make available to the public a copy of the staff report for review and inspection, and shall mail a copy of the staff report and recommendation without charge to the applicant and applicant’s representative. The planning official shall mail or provide a copy of the staff report at reasonable charge to other parties who request it. If the planning official does not issue the staff report at least 10 days before the date of the hearing, the applicant or appellant shall be entitled to ask for a continuance without penalty.

4. Conduct of the hearing. At the commencement of the hearing, a statement shall be made to those in attendance that:

a. The Hearings Examiner or chair of the Planning Commission, as the case may be, shall:

1. State that testimony and evidence shall be directed toward the relevant criteria described in the staff report or other criteria in the plan or land use regulation that the person testifying believes to apply to the decision;

2. State that failure to raise an issue at the hearing may limit the issues that can be considered at the City Council hearing.

b. Staff shall present a staff report, containing a summary of the proposal or appeal, and recommended findings and conclusions. Conditions of approval for a Type III application may be recommended.

c. The applicant or appellant shall be entitled to present evidence and argument in support of the application(s) or appeal.

d. Any participant may present evidence and argument for or against the proposal or appeal.

e. The applicant or appellant shall have the final opportunity to conclude its case before close of the public hearing.

f. The Hearings Examiner or chair of the Planning Commission shall declare the public hearing closed and may have questions for staff, the applicant/appellant, or any member of the public who testified.

5. Additional evidence. Prior to the conclusion of the initial evidentiary hearing, any participant may request an opportunity to present additional relevant evidence or testimony regarding the application so long as that evidence and testimony is within the scope of the hearing. The Hearings Examiner or the Planning Commission may grant such a request by continuing the public hearing pursuant to Subsection 5 (a) below or by leaving the record open for additional written evidence or testimony pursuant to Subsection 5(b) below.

a. Continuance. If the Hearings Examiner or the Planning Commission grants a continuance, the hearing shall be continued to a date, time, and place certain at least seven calendar days from the date of the initial evidentiary hearing. Further notification is not required in such cases. Continuation of hearings to time or place uncertain is also permitted, provided that new notice is given pursuant to this chapter. If the applicant initiates a hearing continuance after public notice is mailed, or causes a continuance by providing inadequate information, fees as per Section 20.180 VMC shall apply. An opportunity shall be provided at the continued hearing for persons to present and rebut new evidence and testimony. If new written evidence is submitted at the continued hearing, any person may request, prior to the conclusion of the continued hearing, that the record be left open for at least seven calendar days to allow the submittal of written evidence or testimony for the purpose of responding to the new written evidence;

b. Record left open. If the Hearings Examiner or Planning Commission leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven calendar days. The Hearings Examiner or Planning Commission shall state where additional written evidence and testimony can be sent, and shall announce any limits on the nature of the evidence that will be received after the hearing. Any participant may file a written request with the Hearings Examiner or Planning Commission for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the Hearings Examiner or Planning Commission shall reopen the record pursuant to this subsection. Unless waived by the applicant, the Hearings Examiner or Planning Commission shall allow the applicant at least seven calendar days after the record is closed to all other parties to submit final written arguments in support of the application period. The applicant’s final submittal shall be considered part of the record, but shall not include any new evidence.

6. Content and custody of the record.

a. The record shall contain all testimony and evidence that is submitted and not rejected;

b. The Hearings Examiner or Planning Commission may take official notice of judicially-cognizable facts pursuant to the applicable law. If the Hearings Examiner or Planning Commission takes official notice, the Hearings Examiner or Planning Commission must announce this intention and allow the parties to the hearing to present evidence concerning the fact;

c. The Hearings Examiner or Planning Commission shall retain custody of the record as appropriate, until a final decision is rendered.

7. Impartiality. Parties to a Type III application or applicant-initiated Type IV Map Amendment hearing and Type I or II appeal hearing are entitled to an impartial review authority as free from potential conflicts of interest and pre-hearing ex parte contacts as reasonably possible. It is recognized, however, that the public has a countervailing right of free access to public officials. Therefore:

a. The Hearings Examiner or any member of the Planning Commission shall disclose the substance of any pre-hearing ex parte contacts (excluding de minimis contacts) with regard to the matter at the commencement of the public hearing on the matter. The Hearings Examiner or member of the Planning Commission shall state whether the contact has impaired the impartiality or ability of the examiner to decide, or the Planning Commission member to vote on, the matter and shall participate or abstain accordingly;

b. The Hearings Examiner or member of the Planning Commission shall not participate in any proceeding or action in which any of the following has a direct financial interest excluding de minimis interests: The Hearings Examiner or member of the Planning Commission or said person’s spouse, brother, sister, child, parent, father-in-law, mother-in-law, partner, any business in which the member is then serving or has served within the previous two years, or any business with which the member is negotiating for or has an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interest shall be disclosed by the Hearings Examiner or member of the Planning Commission at the hearing where the action is being taken;

c. In cases involving the disqualification or refusal of a Hearings Examiner, the city shall provide a substitute Hearings Examiner in a timely manner subject to the above impartiality rules. In cases involving the disqualification or refusal of a member of a Planning Commission, the remaining members of the Planning Commission shall hear the case.

8. Ex parte communications.

a. The Hearings Examiner or member of the Planning Commission shall not:

1. Communicate, directly or indirectly, with any party or representative of a party in connection with any issue involved in a hearing, except upon giving notice, and an opportunity for all parties to participate.

2. Take notice of any communication, report, or other materials outside the record prepared by the proponents or opponents in connection with the particular case.

b. No decision or action of the Hearings Examiner or Planning Commission shall be invalid due to ex parte contacts or bias resulting from ex parte contacts with the Hearings Examiner or member of the Planning Commission if the Hearings Examiner or member of the Planning Commission:

1. Places on the record the substance of any written or oral ex parte communications concerning the decision or action; and

2. Makes a public announcement of the content of the communication and of the parties’ right to rebut the substance of the communication made at the first hearing following the communication where action shall be considered or taken on the subject to which the communication is related.

c. Communication between city staff and the Hearings Examiner or Planning Commission as part of a Type III application or an applicant-initiated Type IV-Map Amendment application or appeal of a Type I or II appeal hearing shall not be considered ex-parte contact.

9. Presenting and receiving evidence.

a. The Hearings Examiner or Planning Commission may set reasonable time limits for oral presentations and may limit or exclude cumulative, repetitious, irrelevant or personally derogatory testimony;

b. No oral testimony shall be accepted after the close of the public hearing. Written testimony may be received after the close of the public hearing, but only pursuant to the schedule and procedure announced by the Hearings Examiner or chair of the Planning Commission prior to the close of the public hearing, or as otherwise provided by this section;

c. The Hearings Examiner or members of the Planning Commission may visit the site and the surrounding area, and may use information obtained during the site visit to support his or her decision, provided the information relied upon is disclosed at the hearing and that an opportunity is provided to rebut such evidence. In the alternative, a site visit may be conducted by the Hearings Examiner or the Planning Commission for the purpose of familiarizing the reviewing body with the site and the surrounding area, but not for the purpose of independently gathering evidence. In such a case, at the commencement of the hearing, the Hearings Examiner or members of the Planning Commission shall disclose the circumstances of the site visit and shall provide the parties with an opportunity to question the Hearings Examiner or members of the Planning Commission concerning the site visit.

10. The decision process.

a. Basis for decision. Approval, conditional approval or denial of a Type III application, an applicant-initiated Type IV Map Amendment application or a Type I or II appeal shall be based on standards and criteria, which shall be set forth in the Vancouver Municipal Code or in uncodified ordinances.

b. Final Decision. The Hearings Examiner or Planning Commission shall issue a final order containing the following information:

1. The nature of the application or appeal in sufficient detail to apprise persons entitled to notice of the decision;

2. The address or other geographic description of the subject property, including a map of the site in relation to the surrounding area, where applicable;

3. If the actual decision is not mailed, a statement of where the Final Decision can be obtained;

4. The date the decision shall become final, unless appealed.

5. A statement that all persons entitled to notice or who have standing under Section 20.210.130(B)(2) VMC may appeal the decision;

6. A statement in boldface type briefly explaining how an appeal can be filed, the deadline for filing such an appeal, and where further information can be obtained concerning the appeal;

7. A statement that the complete case file, including findings, conclusions and conditions of approval, if any, is available for review. The notice shall list the place, days and times where the case file is available and the name and telephone number of the city representative to contact about reviewing the case file;

8. A statement of the applicable criteria and standards pursuant to the Vancouver Municipal Code and other applicable law;

9. A statement of the facts demonstrating how the application or appeal does or does not comply with applicable approval criteria;

10. The reasons for a conclusion to approve, deny or condition the application or appeal;

11. The decision to approve or deny the application or appeal, and if approved, conditions of approval necessary to ensure the proposed development will comply with the applicable law;

12. The date the Final Decision is mailed; and

13. Copies of the mailing labels showing the persons who were mailed the Notice of Decision.

14. A statement regarding any procedural issues decided in the case, with the reasons to approve or deny said procedural request, if any.

c. Decision-making time limits. A Final Decision for any Type III application, applicant-initiated Type IV Map Amendment application, or Type I or II appeal decisions shall be filed with the planning official within 14 calendar days after the close of the record.

11. Distribution of Final Decision. A Final Decision on a Type III application or, applicant-initiated Type IV Map Amendment application, or Type I or II appeal decision shall be mailed, to the following persons:

a. The applicant and/or appellant;

b. The owner(s) of the property included in the subject application or appeal;

c. Any city-recognized neighborhood group whose boundaries include the site;

d. Anyone who requested in writing a notification of the decision on a particular matter.

e. The planning official shall cause an affidavit of mailing of such Final Decision to be prepared and made a part of the file, which indicates the date the notice was mailed and demonstrates that the required notice was mailed to the necessary parties in a timely manner.

12. Contents of Notice of Decision. A Notice of Decision shall include the information contained in Section 20.210.120(B)(10)(b)(1)-(12) VMC.

13. Distribution of the Notice of Decision. A Notice of Decision of a Type III application, applicant-initiated Type IV Map Amendment application, or Type I or II appeal decision shall be mailed on the same day as the Final Decision to the following persons:

a. Any governmental agency which is entitled to notice under an intergovernmental agreement entered into with the city that includes provision for such notice or which is otherwise entitled to such notice;

b. Anyone who provided oral or written testimony entered into the record at the public hearing.

14. Final Decision and effective date. A Hearings Examiner or Planning Commission decision is final for purposes of appeal when the Final Decision and Notice of Decision is mailed. Such decision becomes effective on the day after the appeal period expires, unless an appeal is filed, in which case the procedures of Section 20.210.130 VMC shall apply.

1. Unless otherwise provided in the rules of procedure adopted by the City Council, for both closed-record hearings and open-record hearings:

a. The Mayor or Mayor pro tem shall have the authority to:

1. Regulate the course, sequence, and decorum of the hearing;

2. Dispose of procedural requirements or similar matters; and

3. Impose reasonable time limits for oral presentations.

b. No person shall address the council without:

1. Receiving recognition from the Mayor or Mayor pro tem; and

2. Stating their full name and residence address.

3. Disruptive conduct such as audience demonstrations in the form of applause, cheering or display of signs may be cause for expulsion of a person or persons from the hearing, termination or continuation of the hearing or other appropriate action determined by the Mayor or Mayor pro tem.

2. Unless otherwise provided in the rules of procedures adopted by the City Council, the Mayor or Mayor Pro Tem shall conduct the hearing as follows:

a. The hearing shall be opened by a statement from the Mayor and/or City Attorney setting forth the nature of the matter before the body, a general summary of the procedures applicable to the hearing, and a summary of the standards for decision-making;

b. A presentation of the staff report shall be given;

c. For open-record hearings, the public shall be invited to testify;

d. For open-record hearings, the public hearing may be continued to allow additional testimony or it may be closed; and

e. The City Council’s deliberation may include questions to the staff, comments from the staff, or inquiries directed to any person present. (Ord. M-3931 § 3, 11/02/2009; Ord. M-3922 § 10, 07/06/2009; Ord. M-3840 § 8, 08/06/2007; Ord. M-3701 § 6, 05/04/2005; Ord. M-3643, 01/26/2004)