This page provides an overview of the legal requirements for conducting public hearings in Washington State and describes the basic procedures that should be followed for a proper public hearing.
Local governments are sometimes required by state law to hold public hearings. The issues addressed in these public hearings are frequently contentious, may involve due process rights of private parties, and often generate litigation, so it is important to know and follow proper hearing procedures.
While following proper hearing procedures may not eliminate litigation over the issues addressed in hearings, it will help minimize the risk of the decisions made following public hearings being overturned by the courts on procedural grounds. Following proper procedures also helps ensure that public hearings are conducted fairly.
Public meetings are governed by the procedures of the Open Public Meetings Act, and generally occur whenever a quorum of a governing body meets together and deals with the business of that body. The purpose of the Act is to provide transparency to the decision-making process of the body. Although the public is often allowed to participate in public meetings, only public comment at or before a regular meeting at which final action is taken is required by state law (RCW 42.30.240).
A public hearing, on the other hand, is primarily intended to obtain public testimony or comment before significant decisions are made. A public hearing can occur as part of a regular or special public meeting or, in some circumstances, can be entirely separate from a public meeting. A public hearing is obligatory when due process is required, or when a specific statute or local regulation requires one. A local government may also hold a public hearing when it desires public input on a sensitive or controversial policy issue.
For a list of the city, town, and county statutes that require a public hearing, see our publication Local Ordinances for Washington Cities and Counties (Appendix C, Actions for Which a Public Hearing is Required).
There are two types of public hearings, legislative and quasi-judicial, and it is important to understand the distinction between them.
Legislative Public Hearings
The purpose of a legislative public hearing is to obtain public input on important legislative policy matters that affect a wide range of citizens, such as comprehensive land use plans or the annual budget. Since legislative acts do not trigger constitutional due process rights, legislative public hearings are generally subject to fewer procedural requirements than quasi-judicial public hearings.
The wisdom of legislative decisions, including those made after a public hearing, is generally not second-guessed by the courts. Instead, courts simply assess whether the legislative body had the authority to act in the way that it did, and whether such action was arbitrary and capricious.
Quasi-Judicial Public Hearings
Whereas legislative hearings generally affect a large segment of the public, quasi-judicial hearings involve the legal rights of specific, identifiable parties, such as consideration of land-use variances or permits, and site-specific rezones. Quasi-judicial hearings require due process for the parties involved, so such hearings tend to have stricter procedural requirements than legislative hearings.
The decisions made as a result of quasi-judicial hearings should be, and in some circumstances must be, based upon and supported by the “record” developed at the hearing.
State statutes do not specify how public hearings, whether legislative or quasi-judicial, should be conducted. However, the procedural requirements will vary depending on whether it is a legislative public hearing or a quasi-judicial public hearing.
Quasi-Judicial Public Hearing Procedural Requirements
Since due process protections apply to quasi-judicial matters, the requirements for quasi-judicial public hearings are much stricter in a variety of ways and have been outlined below.
- Due process requires that government entities give proper notice to an individual before making any decision that would impede upon that individual’s rights or property interest. In the context of quasi-judicial hearings, the purpose of this notice is to alert those who may be affected by the proposed action and inform them of its nature so as to allow them the time and opportunity to prepare for and attend the public hearing. If the hearing is being held in accordance with a statute, then the statute may specify the particular timing and manner of notice that is required. Where the statute does not specify, then the timing and method of providing notice should seek to ensure that the underlying purpose of notice is reasonably fulfilled.
Appearance of Fairness
- In quasi-judicial hearings, a decision-maker is not permitted to prejudge or have biases regarding a matter. Communications between parties to the hearing and members of the decision-making body are prohibited outside the context of the public hearing. For more information, see our page on the Appearance of Fairness Doctrine.
Decisions Based on the Record
- The “record” consists of all testimony or comment presented at the hearing and all documents or exhibits that have been submitted in connection with the matter being considered, including written public comments received in advance. The decision-maker in quasi-judicial hearings should only base a decision on facts and evidence that are in the record, as a court or other reviewing body generally cannot consider any facts or evidence that are not in the record. Any public body preparing to hold a quasi-judicial hearing should develop a thorough procedure and set of rules for creating a record that preserves all testimony, documents, and any other evidence presented at the hearing in case the decision is appealed.
- Deliberations on a quasi-judicial matter can occur in a closed session following the public hearing or at some other time, depending on the mandates of the statute. If the matter is a complex one, it may be best to postpone deliberations until members of the decision-making body have had time to review the exhibits and perhaps listen again to some or all of the recorded testimony.
MRSC developed a Public Hearing Script Guide for quasi-judicial hearings that local governments might find helpful.
Legislative Public Hearings Procedural Requirements
Because legislative hearings are generally informal, the main concern is to provide an opportunity for all attending members of the public to speak if they so desire. Time limits can be placed on individual comments if many people intend to testify, and the public comments should be confined to the matter at hand. Written comments may also be accepted at or before the hearing. Any such “ground rules” for the conduct of the hearing should be stated by the chairperson or presiding official at the beginning of the hearing.
Specific procedural requirements for legislative public hearings are less complicated that those for quasi-judicial public hearings.
- For legislative hearings, the notice requirements generally depend upon the applicable statute, which may or may not set out specific requirements for the timing and manner of the notice. For public hearings that are considered public meetings under the Open Public Meetings Act, the notice requirements of that statute must also be followed.
Appearance of Fairness Doctrine
- Under RCW 42.36.030, the appearance of fairness doctrine does not apply to legislative public hearings. It is expected that members of legislative bodies will often take a particular stance on issues, and that they will be lobbied by their constituents prior to any significant legislative action.
- State statutes do not specify how legislative public hearings should be conducted. However, the primary focus should be to provide an opportunity for all attending members of the public to speak if they so desire. Time limits can be placed on individual comments if many people intend to testify, and the public comments should be confined to the matter at hand. Written comments may also be accepted at or before the hearing. Any such “ground rules” for the conduct of the hearing should be stated by the chairperson or presiding official at the beginning of the hearing.
Create an Agenda
Whether legislative or quasi-judicial, any public hearing should have an agenda to ensure that participants are fully informed as to how the hearing will be conducted. The agenda can be included in the notice and can also be circulated at the beginning of the hearing.
Make a Hearing Script
The presiding officer may find it helpful to have a written “script” to follow for opening and presiding over the hearing to ensure that he or she properly explains the rules and procedures of each part of the hearing and does not overlook anything.
Set Ground Rules
The decision-making body should establish clear ground rules for how the hearing will be conducted. These rules should be announced to the public at the start of the hearing, and printed copies can be distributed for additional clarity.
- Washington State Department of Commerce: A Short Course on Local Planning Resource Guide (2017) — Provides a detailed overview of the planning process, including public participation, its legal basis in Washington State, and specific legislation, tools, and techniques that can be used in local planning efforts
- Washington State Legislature: How to Testify (2022) – An excellent example of providing guidance to the public and laying the ground rules for receiving public testimony