Hearing Examiner 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.

Before a 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 3 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) (PDF) 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.

Presentation of Staff Report
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.

Testimony Under Oath
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.

After a 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 2 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.