1.26.020 Rules of decision for closed record appeals to the city council under BMC 2.56.050(A).
A. The decision of the city council shall be based upon the record established in the hearing examiner’s proceedings, written argument submitted by the parties of record, and such oral argument as may be allowed at the discretion of the city council.
B. Discretion of Council. With regard to the matters described in BMC 2.56.050(A), the city council may affirm the decision of the hearing examiner, or modify or reverse the decision of the hearing examiner, or remand the matter to the hearing examiner with instructions for further proceedings.
C. Standard of Review. Review by the city council shall be a closed record review. Appellate review by council shall be limited to argument regarding the legality and sufficiency of the record of the proceedings before the hearing examiner and no new evidence shall be considered. The city council must affirm the decision of the hearing examiner unless the council concludes that the decision is contrary to law, or that it is not supported by substantial evidence on the record, or that the proceedings before the hearing examiner are inconsistent with the appearance of fairness. Substantial evidence on the record means that there must be credible evidence on the record sufficient to support the hearing examiner’s decision.
D. Burden of Proof. The decision of the hearing examiner is presumed to be sufficient, legal and regular. Appellant has the burden of demonstrating that the decision of the hearing examiner is contrary to law, is not supported by substantial evidence on the record, violates appellant’s right to due process or otherwise so deviates from the appearance of fairness that appellant was denied the opportunity to be heard.
E. Decision of the Council.
1. City council may modify or reverse the decision of the hearing examiner and shall make findings of fact and conclusions of law to explain its decision if it finds:
a. That the decision of the hearing examiner is contrary to law; or
b. That the substantial, relevant, and probative evidence on the record supports a decision different from that of the hearing examiner.
2. The council may remand the matter to the office of the hearing examiner if it finds:
a. That evidence in existence at the time of proceedings before the hearing examiner was omitted from the record and that a reasonable person could conclude that the hearing examiner may have reached a different decision had the omitted evidence been considered; or
b. That the record, in whole or in part, is not sufficient for the council to make a reasoned decision on the appeal; or
c. That the proceedings before the hearing examiner exhibited the absence of the appearance of fairness. [Ord. 2002-10-069 § 4].