035-19 - Ordinance - Amending Chapter 2.08, Adopting New Chapter 2.82, Creating Position of Abatement Hearing OfficeroRDtNANCE NO. 035-19
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASH NGTON,
AMEND NG CHAPTER 2.O8 AND ADOPTING A NEW CHAPTER 2.82 OF THE PORT
ORCHARD MUN CIPAL CODE; CREATING THE POSITION OF ABATEMENT
HEARING OFFICER; AND SETT NG AN EFFECT VE DATE.
WHEREAS, under various provisions of the Revised Code of Washington, cities have the
authority to adopt regulations and abate public nuisances, dangerous buildings, and other
conditions on private property, and to pursue recovery of associated costs against the
properties and owners; and
WHEREAS, the City of Port Orchard has adopted such regulations; and
WHEREAS, to ensure substantial due process for property owners and other affected
parties, to comply with the requirements of RCW 35.80, and to provide consistent procedures
among the different types of abatement actions, the City desires to provide for an
administrative level of appeal of abatement orders before such actions proceed to Superior
Court for final appeals and actions; and
WHEREAS, the City's existing administrative hearing bodies and officers are not the
most appropriate for the types of conditions and violations involved in the various abatement
actions, nor the most cost-effective for the City and property owners; and
WHEREAS, the City Council desires to create the appointive position of Abatement
Hearing Officer to serve in this capacity and to establish the duti€s, gualifications, and other
provisions for the position; and
WHEREAS, a minor amendment is needed in the section of POMC 2.08 creating the
appointive position of Hearing Examiner, to correctly reflect the source of the duties of that
position; now, therefore,
THE C TY COUNC t OF THE CITY OF PORT ORCHARD, WASH NGTON, DO
ORDAIN AS FOLLOWS:
SECTION 1. POMC C[apter2.08.010 Amended. Port Orchard Munici pal Code, Section
2.08.010, is hereby amended to read as follows:
2.08.010 Appointment and removal of appointive off cers.
The mayor of the city may appoint or remove the city clerk, finance director, public
works director, city engineer, development director, city attorney, police chiel municipaljudge,
code enforcement officer, abatement hearing officer, and hearing examiner subject to any
applicable law, ordinance, rule, or regulation, including those relating to civil service. All
appointments of city officers shall be made on the basis of ability and training or experience of
Ordinance No.035-19
Page 2 of 7
the appointees in the duties they are to perform, from among persons having such
qualifications as may be prescribed by ordinance, and in compliance with provisions of any
merit system applicable to the city. Confirmation by the city council of appointments of officers
shall be required only when the city council, by ordinance, provides for confirmation of such
appointments. Confirmation of mayoral appointments by the council may be required by the
council in any instance where qualifications for the office or position have not been established
by ordinance. Appointive offices shall be without definite term unless a term is established for
such office by law or ordinance.
SECTION 2. Chapter 2,08.110 Amended. Section 2.08.110 of the Port Orchard
Municipal Code is hereby amended to read as follows:
2.08.110 Hearing examiner.
(1) There is created the position of hearing examiner. The mayor may appoint or remove
the hearing examiner with confirmation by a majority vote of the city council. ln lieu of the
hearing examiner being a city employee, the city may enter into a professional services contract
upon agreement by the mayor and confirmation by a majority vote of the city council.
(2) Powers and Duties. The duties of the hearing examiner are as detailed in, but not
confined to those contained in, the Port Orchard Municipal Code and the job description or
professional services contract on file in the office of the finance de partment and may be
updated from time to time. The hearing examiner shal! have all the powers granted and duties
imposed by authority of the Iaws of the state, resolutions, and ordinances of the city now
existing or hereinafter adopted.
SECTION 3. New Section 2.08.120 Adopted. A new Section 2.08.120 to Cha pter 2.O8
("Appointive Officers") of the Port Orchard Municipa! Code is hereby adopted as follows:
2.O8.t2O Abatement hear ng officer.
(1) There is created the position of abatement hearing officer. The mayor may appoint
or remove the abatement hearing officer with confirmation by a majority vote of the city
council. In lieu of the abatement hearing officer being a city employee, the city may enter into a
professiona! services contract upon agreement by the mayor, with confirmation by a majority
vote of the city council if the contract amount is above the mayor's contracting authority.
(2) Powers and Duties. The duties of the abatement hearing officer are as detailed in,
but not confined to those contained ih, the Port Orchard Municipal Code and the job
description or professional services contract on file in the office of the finance department and
may be updated from time to time. The abatement hearing officer shall have all the powers
granted and duties imposed by authority of the laws of the state and resolutions and
ordinances of the city now existing or hereinafter adopted.
Ordinance No.035-19
Page 3 of 7
SECT ON 4. New POMC Section 2.08.125 Adopted. A new Section 2.08.L25 of the Port
Orchard Municipal Code is hereby adopted as follows:
2.O8.L25 Compensation of abatement hearing officer.
The compensation of the abatement hearing officer shal! be the amount established by
the city council in the annual budget or as established by contract.
SECTION 5. New Chapter 2.82 Adopted. A new Cha pter 2.82 ("Abatement Hearing
Officer") to Title 2 ("Administration and Personnel") of the Port Orchard Municipal Code is
hereby adopted as follows:
Chapter 2.82
ABATEMENT HEAR NG OFF CER
Sections:
2.82.OL0
2.82.O20
2.82.O30
2.82.O40
2.82.OsO
2.82.060
2.82.070
2.82.080
2.82.O90
2.82.LOO
2.82.LLO
2.82.L20
2.82.L30
2.82.L40
Definition
Authority.
Conflict of interest.
lmproper influence.
Organization and rules.
Powers.
Notice of appeal.
Determination of completeness.
Hearings - Closed record.
Rules of evidence.
Burden of proof.
Notice of hearing.
Decision.
Appeal from Hearing Officer's decision.
2.82.OLO Definition.
"Abatement Hearing Officer" and "Hearing Officer" shall mean the person appointed by the City
of Port Orchard to hear appeals of dangerous or unfit building, nuisance, or other abatement
orders of the City. Unless the context requires otherwise, the terms "Abatement Hearing
Officer" and "Hearing Officer" shall include "Hearing Officer pro tem."
2.82.O2O Authority.
The Abatement Hearing Officer shall be appointed and compensated as set forth in Chapter
2.08 POMC, and shall have the powers and duties as set forth herein. The Hearing Officer shall
be appointed based on his or her qualifications for the duties of the office and shall have the
necessary training and experience to conduct administrative or quasi-judicial hearings, and to
render decisions according to law. The Hearing Officer shall suggest a Hearing Officer pro tem
to serve in the event of his/her absence or disability, or in the event of a conflict of interest. The
Ordinance No.035-19
Page 4 of 7
appointment of a Hearing Officer pro tem is expected to be infrequent in nature. The Hearing
Officer pro tem will be entitled to the same compensation as the Hearing Officer during his/her
term of service.
2.82.O3O Conflict of interest.
(1) The Hearing Officer shall not conduct or participate in any hearing or decision in which:
(a) The Hearing Officer has a direct or indirect personal interest; or
(b) The Hearing Officer has a beneficial interest, directly or indirectly, in any aspect of the
matter on which he or she is called upon to issue a decision; or
(c) The Hearing Officer has a direct or indirect familia! interest which might influence or
interfere with his or her decision-making process or give rise to a violation of the
appearance of fairness doctrine as codified in Chapter 42.36 RCW, as written or hereafter
amended, and the common law.
(2) The Hearing Officer shall disclose matters involving ex parte contacts, conflicts of interest or
appearance of fairness issues prior to or at the beginning of any matter or immediately upon
becoming aware of the need for such disclosure. The Hearing Officer shall recuse himself or
herself if the Hearing Officer believes his or her review of the matter would represent a conflict
of interest or violate the appearance of fairness doctrine as set forth herein.
(3) ln the event the Hearing Officer recuses himself or herself, a Hearing Officer pro tem will be
appointed, according to POMC 2.82.O2O.
2.82.O4O mproperinfluence.
No city official either elected or appointed shall attempt to influence the Hearing Officer in any
matter officially before him or her so as to constitute misconduct by a public officer under
Chapter 42.20 RCW, as written or hereafter amended, or that would constitute a violation of
the appearance of fairness doctrine as codified in Chapt er 42.36 RCW, as written or hereafter
amended.
2.82.O5O Organization and ru es.
(1) Organization. The Hearing Officer operates independently of any department of the city,
but will receive such administrative assistance from city staff as is necessary to carry out the
functions of his or her office.
(2) Rules. The Hearing Officer shall have the power to prescribe rules not in conflict with this
chapter for procedural matters including adopting procedures for prehearing conferences, the
scheduling and conduct of hearings, the submission of legal motions, briefs and other written
documents, the scheduling of discovery, issuance of subpoenas for the attendance of witnesses
or the production of information, receipt of evidence, and issues relating to settlement.
2.82.060 Powers.
(1) General. The Hearing Officer shall receive and examine all information in the official file,
conduct hearings and administer preparation of the official record, and issue a written decision
on the matter. The Hearing Officer is authorized to hear appeals of abatement orders issued by
Ordinance No. 035-19
Page 5 of7
the City and to affirm, rescind, or modify, in whole or in part, any such abatement order,
consistent with federal, state and local law.
(2) Specific. !n addition to the general authority as granted herein, the Hearing Officer shall
have the authority granted to him elsewhere in the Port Orchard Municipal Code.
(3) The city council may, from time to time, grant to the Hearing Officer additional powers and
authority as the council deems appropriate, consistent with state law and the city code,
ordinances and resolutions.
2.82.O7O Notice of appeal.
(1) The notice of appeal shall be in writing, be accompanied by the required appeal fee, and
contain the following information :
(a) Appellant's name, address and phone number;
(b) A statement describing appellant's standing to appeal;
(c) ldentification of the order which is the subject of the appeal;
(d) Appellant's statement of grounds for appeal and the facts upon which the appeal is
based;
(e) The specific relief sought;
(f) A statement that the appellant has read the appeal and believes the contents to be
true, followed by the appellant's signature.
(2) Any notice of appeal that does not contain all of the required information, or otherwise
does not meet the requirements of this Chapter shall be deemed incomplete and shall be
rejected.
2.82.O8O Determination of completeness.
Within 5 business days of the filing of an appeal, the Hearing Officer shall make an initial review
of the notice of appeal and, if it is incomplete, shall notify the appellant of the deficiencies in
the appeal.
2.82.O9O Hearings - Closed record.
(1) Hearings shall be based on the record of the administrative hearing before the Director of
Community Development or Public Works. The record includes the written decision of the
Director, a transcript or recording of the proceedings, and copies of any exhibits that were
admitted into the record at the hearing.
(21 No new testimony or other evidence will be accepted by the Hearing Officer except:
relevant information that, in the opinion of the Hearing Officer, was improperly excluded by the
Director. Appellants who believe that information was improperly excluded must specifically
request, in writing prior to the hearing, that the information be made part of the record. The
request shall describe the information excluded, its relevance to the issues appealed, the
reason(s) that the information was excluded by the Director, and why the Director erred in
excluding the information. No reference to excluded information shall be made in any
Ordinance No. 035-19
Page 5 of 7
presentation to the Hearing Officer on the merits, written or oral, until the Hearing Officer has
determined that the information should be admitted.
(3) Parties to the appeal may present written and/or oral arguments. Argument shall describe
the particular errors committed by the Director, with specific references to the administrative
record.
2.82.LOO Rules of evidence.
The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings
before the Hearing Officer.
2.82.LLO Burden of proof.
The appellant has the burden of proof to establish, by a preponderance of the evidence, that
the abatement order was issued in error, or that equity requires the deletion or modification of
one or more of the requirements set forth in the abatement order to accomplish the removal
or correction of the violating condition(s).
2.82.!20 Notice of hear ng.
The planning department shall, in coordination with the Hearing Officer, be responsible for
assigning a date and assuring due notice of the hearing on the matter to come before the
Hearing Officer. Notice of the time, place, location, and subject matter of the hearing shall be
consistent with applicable law. Such notice shall be given a minimum of 10 days prior to the
scheduled hearing.
2.82.t3O Decision.
(1) Time for lssuance of Recommendation/Decision. Unless a longer period is agreed to by the
appellant, the examiner shall issue a recommendation or decision within 10 working days after
the close of the hearing and the record.
(21 Decision. A decision shall set forth findings of fact, conclusions, and decision based on the
record. Findings shall be supported by substantial evidence in the record, and conclusions shall
follow from the findings. The decision will specify that the abatement order has been affirmed,
rescinded, or modified and, if modified, detail the requirements for removing or correcting the
violating conditions. The decision will further specify the parties' appeal rights.
(3) Notice of decision. Not later than five calendar days following the issuance of the Hearing
Officer's decision, copies thereof shal! be mailed to the applicant, to parties of record and to
any person who requested a copy of the decision. The original decision shall be maintained in
the official record.
(4) Transcript. A transcript of the Hearing Officer's findings of fact shall be made available to
the owner or other party in interest upon demand.
2.82.L4O Appeal from Hearing Officer's decision.
All appeals of decisions of the Hearing Officer will be to the Superior Court and must be filed
with the Superior Court no later than 30 days after the service of the Hearing Officer's decision.
Ordinance No. 035-19
Page 7 of7
sEcTroN 5.Severabilitv. lf any section, sentence, clause or phrase of this Ordinance
should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such
invalidity or unconstitutionality sha!l not affect the validity or constitutionality of any other
section, sentence, clause or phrase of this Ordinance.
SECT ON 7. Publication.This Ordinance shall be published by an approved summary
consisting of the title
SE N8.Effective Date. This Ordinance shall take effect and be in full force and
effect five days after publication, as provided by law
PASSED by the City Counci! of the City of Port Orchard, APPROVED by the Mayor and
attested by the Clerk in authentication of such passage this 10th day of September, 201-9.
Robert Putaan u, Mayor
ATTEST:SPONSOR:
Bran R MMC, City Clerk k Ashby, Co cilmembern,
APPROVED AS TO FORM:
n Cates, City Attorney
PU BLISH ED:
EFFECTIVE DATE:
September 20, 20L9
Septemb er 25,2OL9
SEAL
NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council
meeting held September 10, 2019.
ORDINANCE NO. 035-19
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
AMENDING CHAPTER 2.08 AND ADOPTING A NEW CHAPTER 2.82 OF THE PORT
ORCHARD MUNICIPAL CODE; CREATING THE POSITION OF ABATEMENT
HEARING OFFICER; AND SETTING AN EFFECTIVE DATE.
Copies of Ordinance No. 035-19 are available for review at the office of the City Clerk of the City of Port Orchard.
Upon written request, a statement of the full text of the Ordinance will be mailed to any interested person without
charge. Thirty days after publication, copies of Ordinance No. 035-19 will be provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Published: Friday, September 20, 2019