Chapter 15.24 PUBLIC NOTICE AND APPEALS

A. The director shall integrate the procedures in this chapter with the timing of the environmental review process set forth in Chapter 15.20, Article VII, and any public and intergovernmental review to accomplish a single project review process.

B. Informational Introduction. This overview is for general public information to assist in understanding the following sections and shall not be given regulatory effect. The process for most applications that involve public notice and review is generally as follows, subject to the specific requirements and exceptions set forth in this chapter.

1. Public Notice. Within fourteen days after a complete application is filed (“determination of completeness”), public notice is given of the proposed project (“notice of application”). If a hearing is required on a project, this notice is given at least fifteen days before the hearing. The method of notice depends on the type of permit and level of environmental review.

2. The notice should be read carefully. It will say whether there is an opportunity for a public hearing, or if you need to request one. It will also identify the environmental studies and where they are located for review.

3. This early notice usually indicates whether a significant adverse environmental impact is likely and/or the proposed measures to avoid or otherwise mitigate environmental impacts (“optional determination of nonsignificance” or “determination of significance/scoping notice”). The notice may also include a preliminary determination of consistency with city plans and regulations.

4. Public Comment Period. Public comments must be received by the city within fourteen days. Certain actions also provide for longer or additional comment periods.

5. Notice of Decision. After most decisions by the city staff or hearing examiner, depending on the type of approval, a notice (“notice of decision”) is provided to the applicant and to anyone who requested notice or commented substantively on the application. The notice of decision also describes the appeal procedure.

6. Appeals. Depending on the type of permit, an appeal may be to the hearing examiner (“administrative appeal”) or to court (“judicial appeal”). If an administrative appeal is provided, it must be used before going to court. Generally, any administrative appeals must be filed with the city within fourteen days of the notice of decision, and any judicial appeals must be filed with the superior court within twenty-one days.

7. Exceptions. The minor administrative permit decisions made by city staff (Review Process I) and the few permit decisions made by city council (Review Process V and VI) have different public notice procedures, as set forth in this chapter. (Ord. 2975-07 § 9, 2007; Ord. 2530-01, Ch. 6, 2001)

Article I. Notice of Application

15.24.020 Notice of application required and timing of notice.

Notice of application will serve as the principal public notice for review of projects subject to Review Processes II and III.

A. Fourteen Days After Determination of Completeness. A notice of application shall be provided within fourteen days after the issuance of a determination of completeness for all Review Process II and III applications.

B. Fifteen Days Prior to Open Public Hearing. For Review Process III, the notice of application shall be provided at least fifteen days prior to the open public hearing before the hearing examiner. (Ord. 2975-07 § 10, 2007: Ord. 2530-01, Ch. 6 § 1(A), 2001)

15.24.030 Notice of application not required.

Except for Review Process IIIB, a notice of application shall not be required for city council decisions (Review Process V and VI applications), for Review Process I, or for project permits that are categorically exempt under SEPA (unless a public comment period or open record hearing is otherwise required for the permit). (Ord. 2530-01, Ch. 6 § 1(B), 2001)

15.24.040 Integrated notice.

A. Whenever possible, the notice of application will be combined or issued concurrently with other required notices including the notice of completeness, SEPA notice, and notice of public hearing.

B. When a SEPA determination of nonsignificance that requires public notice under WAC 197-11-340 is issued, both the notice of application and SEPA notice requirements (Section 15.24.130) shall be met.

C. The director may issue a SEPA determination of significance concurrently with the notice of application, in which case, the notice of application shall be combined with the determination of significance and scoping notice. Nothing in this section prevents a determination of significance and scoping notice from being issued prior to the notice of application. (Ord. 2530-01, Ch. 6 § 1(C), 2001)

15.24.050 Content of notice of application.

The notice of application shall include the following information in whatever order or format the director deems appropriate for a type of application or for a specific application. A notice of availability or summary of the notice of application may be used for any required newspaper publication.

A. Date. The date of application, the date of the notice of completion for the application, and the date of the notice of application;

B. Permits and Studies. A description of the proposed project action and a list of the project permits included in the application and, if applicable, a list of any studies requested under this title or under RCW 36.70B.070;

C. Other Permits. The identification of other permits not included in the application to the extent known by the local government;

D. Environmental Documents. The identification of existing environmental documents that evaluates the proposed project, and the location where the application and any studies may be reviewed;

E. Public Comment Period and Future Notices. A statement of the public comment period, and statements of the right of any person to comment on the application, receive notice of and participate in any hearings, request a copy of the decision once made, and any appeal rights;

F. Hearings If Known. The date, time, place, and type of hearing, if applicable and if scheduled at the date of notice of the application;

G. Preliminary Determinations. A statement of the preliminary determination, if one has been made at the time of notice, of those development regulations that will be used for project mitigation and of consistency with applicable development regulations as provided in RCW 36.70B.030(2), and the comprehensive plan; and

H. Other Information. Any other information determined appropriate by the director. (Ord. 2530-01, Ch. 6 § 1(D), 2001)

Article II. Public Notice
and Public Comment Periods

15.24.060 Requirements for more than one permit.

Where a project requires more than one land use permit, public notice shall follow the public notice requirements for the highest numbered classification review process, as determined by Section 15.16.030. (Ord. 2530-01, Ch. 6 § 2, 2001)

15.24.070 Review Process I—Minor administrative decisions.

No public notice is required for Review Process I minor administrative decisions, except in unusual circumstances where the proposed project is not categorically exempt under SEPA. (Ord. 2530-01, Ch. 6 § 2(A), 2001)

15.24.080 Review Process II—Administrative decisions.

Public notice shall include notice of application and notice of decision. Public notice of the notice of application shall be provided by:

A. Posting notice on or near the property with two signs no less than twenty-four inches by thirty-six inches in size, as specified by Section 15.24.190;

B. Posting additional signs if the project is a linear project, as specified by Section 15.24.190;

C. Mailing notice to owners of property located within one hundred fifty feet of the subject property;

D. Mailing notice to the SEPA mailing list (unless the project is categorically exempt); and

E. Mailing notice to the neighborhood leader mailing list if applicable.

F. For applications that require public notice under Section 20.04.130, public notice shall be provided by posting two signs no less than twenty-four inches by thirty-six inches on or near the property. The signs shall contain the information specified in Section 15.24.190(C). (Ord. 3513-16 § 3, 2016: Ord. 3185-10 § 2, 2010: Ord. 2530-01, Ch. 6 § 2(B), 2001)

15.24.090 Additional notice and comment requirements for Review Process II land divisions.

A. For preliminary subdivisions and preliminary alterations or vacations of subdivisions or short subdivisions, the following notice is required:

1. Two Signs on Frontage. The property shall be posted with two signs no less than twenty-four inches by thirty-six inches in size on the property’s frontage. The notice shall meet the notice of application requirements and shall include a statement that any affected person may request an open public hearing. The applicant shall be responsible for posting the site in compliance with these requirements. These signs are not intended to be in addition to the two signs required under Section 15.24.190.

2. Notice to Property Owners. The mailed notice (see Section 15.24.050) shall include a statement that any affected person may request an open public hearing.

3. Alteration or Vacation Notice for Original Land Division. Additionally, for subdivision or short subdivision alteration or vacation applications, notice shall be mailed to all other property owners of portions affected that are within the original approved subdivision or short subdivision.

4. Three Additional Signs on Frontage or in Neighborhood. Post three additional signs as approved by the city on the property frontage or within the geographic neighborhood as defined by the director. All signs must be posted so they can be clearly viewed from public streets. The content of the signs shall meet the posting requirements in Section 15.24.190 and shall include a statement that any affected person may request an open public hearing. Any additional signs required by Section 15.24.190 as a result of the length of street or alley frontage may be counted in the additional sign requirement of this subsection.

B. Additional Short Subdivision Notice Next to State Highway Right-of-Way. For preliminary short subdivision applications, whenever the city receives an application for a short subdivision which is located adjacent to state highway right-of-way, the city shall give written notice of the application, consistent with this title, to the Washington State Department of Transportation (WSDOT). WSDOT is required to comment within fourteen days after receiving the notice under RCW 58.17.155. (Ord. 3619-18 § 9, 2018: Ord. 2530-01, Ch. 6 § 2(C), 2001)

15.24.100 Additional notice requirements for historic overlay zones.

For proposals reviewed by the historic commission in an historic overlay zone, the mailed notice shall also be sent to property owners located within five hundred feet of the proposed project site. (Ord. 2530-01, Ch. 6 § 2(D), 2001)

15.24.110 Review Process III—Hearing examiner decisions.

Public notice shall include notice of application, notice of open public hearing (if not in the notice of application), and notice of decision. Public notice of the notice of application shall be provided by:

A. Posting notice on or near the property with signs no less than twenty-four inches by thirty-six inches in size, as specified by Section 15.24.190;

B. Posting additional signs if the project is a linear project, as specified by Section 15.24.190.

C. Mailing notice to the property owners located within five hundred feet;

D. Mailing notice to the SEPA mailing list (unless the project is categorically exempt);

E. Mailing to the neighborhood leader mailing list if applicable; and

F. Publishing notice in the official city newspaper.

Notice of the open public hearing shall be provided at least fifteen days prior to the hearing date.

For Review Process IIIB, notice of the city council meeting shall be provided to the applicant, to parties of record from the open public hearing before the examiner, to any person who submitted substantive comments on the application, and to any person who has made a written request to the office of city council for notice of the hearing. (Ord. 2530-01, Ch. 6 § 2(E), 2001)

15.24.120 Additional notice requirements for Review Process III land divisions.

Notice shall also consist of mailing notice to adjacent property owners and parties who have provided written comments on the proposed land division. (Ord. 2530-01, Ch. 6 § 2(F), 2001)

15.24.130 Notice of appeal hearings to examiner.

Public notice under this section is not required for an appeal hearing to the examiner for a Review Process I or II decision. Public notice of the appeal hearing for appeals of Review Process I or II decisions shall be provided to parties of record to the appeal and/or as established by the examiner in an order subsequent to a prehearing conference. Separate notice is not required for a SEPA appeal hearing that is consolidated with a Review Process IIIA permit decision if notice of the open record hearing on the permit has already been given. (Ord. 2530-01, Ch. 6 § 2(G), 2001)

15.24.140 Review Process IV—Board of adjustment—Open public hearings related to zoning variances.

Repealed by Ord. 2975-07. (Ord. 2530-01, Ch. 6 § 2(H), 2001)

15.24.150 Review Process V—Planning commission or historic commission and city council.

Public notice shall include notice of the public hearing or meeting and opportunity to comment on the application, and a notice of the final city council action taken.

A. Notice of the public hearing or meeting, including notice of opportunity to comment, shall be provided in the same manner for the planning commission, historic commission, and city council public hearings or meeting on the application, as follows:

1. Posting notice on or near the property with signs no less than twenty-four inches by thirty-six inches in size, as specified by Section 15.24.190;

2. Posting additional signs if the project is a linear project, as specified by Section 15.24.190;

3. Mailing notice to the property owners located within five hundred feet;

4. Mailing notice to the SEPA mailing list (unless the project is categorically exempt);

5. Mailing notice to the neighborhood leader mailing list if applicable; and

6. Publishing notice in the official city newspaper.

B. Notice of the public hearing or meeting shall be provided at least fifteen days prior to the hearing date.

C. Official notice of the final city council action taken shall be provided to the applicant and to any person who has made a written request to the office of the city council for notice of the decision. This notice shall state the date and place for commencing an appeal. (Ord. 2530-01, Ch. 6 § 2(I), 2001)

15.24.160 Review Process VI—City council approval of final plats and final approval of resolution of intent rezones.

No public notice beyond normal notice of city council meetings is required for the public hearing or meeting under Review Process VI. (Ord. 2530-01, Ch. 6 § 2(J), 2001)

15.24.170 Notice of SEPA determinations.

To the maximum extent feasible, SEPA notice shall be integrated into the other public notice requirements, including the notice of application process. Where a specific form of notice is required by both notice for the applicable review process and notice under SEPA, a single integrated notice shall meet the notice requirements (e.g., a single publication in the newspaper shall be sufficient to meet the publication requirements under both sections).

A. SEPA and Neighborhood Leader Mailing Lists. The city shall establish a SEPA mailing list consisting of all public or private groups or individuals who submit a written request with the responsible official that they be notified of all SEPA actions which require public notice under WAC 197-11-510. The city shall also establish a neighborhood leader mailing list, which shall include the duly elected chairperson of each neighborhood group. It shall be the responsibility of the neighborhood chairperson or his/her designated representative to notify the responsible official in writing of the name and mailing address of his/her successor. “Neighborhood group” means a group representing a specified geographic area within the city which is formally recognized by the city’s office of neighborhoods and which has elected officers and representatives on the council of neighborhoods.

B. Notice of SEPA Threshold Determinations. Whenever the city issues a DNS under WAC 197-11-340(2) or 197-11-355, or a DS under WAC 197-11-360(1), the city shall give public notice as follows:

1. For site specific proposals, notice shall be given by:

a. Mailing notice to the SEPA mailing list established under subsection A of this section;

b. If a proposal is located within the geographical boundaries of a neighborhood group as defined in subsection A of this section, by mailing notice to the chairperson of that group; and

c. Posting notice as specified by Section 15.24.190.

2. For nonproject or other proposals that are not site specific (e.g., city or areawide), notice shall be given by:

a. Mailing notice to the SEPA mailing list established under subsection A of this section;

b. Mailing notice to the neighborhood leader mailing list established under subsection A of this section if applicable; and

c. Publishing notice in the official city newspaper.

3. In exceptional circumstances, where it is determined that methods of notice provided for SEPA notice in this subsection would not provide adequate public notice of a proposed action, the responsible official may require additional notice or notice by another reasonable method. Failure to require such additional or alternative notice shall not be a violation of any notice procedure.

4. Whenever the city issues a DS under WAC 197-11-360(3), the city shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408.

C. Notice of Draft EIS. Whenever the city issues a draft EIS under WAC 197-11-455(5) or a draft supplemental EIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

1. Indicating the availability of the DEIS in any public notice required for a nonexempt permit;

2. Publishing notice in the official city newspaper;

3. Mailing a notice of availability to the SEPA mailing list and the neighborhood leader mailing list established under subsection A of this section; and

4. Sending the DEIS to other agencies and persons requesting a copy of the DEIS, as specified in WAC 197-11-455.

D. Notice of Final EIS. Whenever the city issues a final EIS under WAC 197-11-460 or a final supplemental EIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

1. Indicating the availability of the FEIS in any public notice required for a nonexempt permit;

2. Mailing notice of availability to anyone who received or commented on the DEIS, as provided by WAC 197-11-460.

3. Sending the FEIS to all agencies with jurisdiction, to all agencies who commented on the DEIS, and to anyone requesting a copy of the FEIS.

E. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 2530-01, Ch. 6 § 2(K), 2001)

15.24.180 Comment periods.

A. Comments by agencies and the public shall be as specific as possible.

B. Comments must be in writing, shall be as specific as possible, shall be reasonably related to the factual circumstances or development standards applicable to the proposed action. Comments on a notice of application shall be submitted within fourteen days of its issuance; provided, however, that the fourteen-day comment period shall commence on the date that the site is posted or notices published or mailed, whichever occurs later. Other than commenting on the notice of application, any other comment periods should be specified in the public notice inviting comments.

C. Exceptions.

1. Comments on Review Process II preliminary subdivision, or subdivisions and short subdivision alteration or vacation applications shall be submitted within twenty days of the issuance of the notice of application.

2. A copy of all written comments on Review Process II land divisions shall be provided to the applicant, and the applicant will have seven days from the receipt of the comments to respond to the city.

3. Comments on Review Process II and III shoreline permit applications shall be submitted within thirty days of the issuance of the notice of application, except that comments shall be submitted within twenty days for shoreline permits for limited utility extensions or for the construction of a bulkhead or other measures to protect a single-family residence and its appurtenant structures from shoreline erosion. See the definitions section of the city’s shoreline master program for the definition of a limited utility extension.

4. Submitted means “physically received by the city.” (Ord. 2530-01, Ch. 6 § 2(L), 2001)

15.24.190 Content and timing of notice.

A. Posting of Property. Where posting is required as part of a particular review process, a notice shall be posted conspicuously in two places on or near the subject property and shall be readily accessible for the public to review. Whenever the subject property fronts on a public street or alley, the property shall be posted with one sign per frontage including alleys plus one additional sign for each additional one hundred fifty lineal feet of frontage; provided, if more than a total of five hundred lineal feet of frontage exists, then the number of actual signs required and their placement shall be discretionary with the director (see next paragraph on posting of linear projects). All signs required to be posted shall remain in place until the final SEPA determination has been made.

B. Posting of Linear Projects. Signs shall be posted for linear projects, including projects that traverse numerous properties or occur along an alignment or corridor, every one-quarter mile, or as otherwise determined by the director, in locations readily accessible to the public. The director may determine the size and content of the signs.

C. Content of Posted Signs. The posting notice shall contain the following information:

1. The name of the applicant;

2. The address or locational description of the subject property;

3. A written description of the requested action or actions;

4. Identification of the existing environmental document that evaluates the application;

5. For Review Process III, the date of public hearing, and for Review Process II, the date by which written comments must be received;

6. The name, address, and phone number of the staff contact person;

7. A site plan; and

8. A statement regarding the availability of the notice of application and the location where the application may be reviewed.

D. Mailing. Where mailing to contiguous or adjacent property owners is required, the content of the notice shall meet the requirements for a notice of application (Section 15.24.050) and any other additional requirements for specific project notice as set forth in this chapter. Mailing shall be by first class mail unless otherwise specified by this chapter or by the director.

E. Publication in Official City Newspaper. Where publication is required as part of the notification for a particular review process, the notification shall be published in the official newspaper designated by city council. Notice shall be published at least fifteen days prior to the date of hearing or date of decision, as applicable.

F. Responsibility for Notice.

1. The city shall be responsible for publication of notice.

2. The applicant shall be responsible for posting the property subject to the application in compliance with rules established by the director.

3. The applicant shall provide the director with an affidavit of compliance with the posting requirements of this section.

4. The applicant shall be responsible for providing a mailing list in compliance with rules established by the director. The city shall be responsible for mailing the notice of application.

G. Costs. All costs of providing notice shall be borne by the applicant. (Ord. 2975-07 § 12, 2007; Ord. 2530-01, Ch. 6 § 2(M), 2001)

15.24.200 Electronic notice.

A. The planning department may establish procedures for providing notice and receiving comments electronically.

B. The planning department may adopt forms that will facilitate the ability of applicants to file applications and to provide information electronically and for the city to issue notices electronically. (Ord. 2530-01, Ch. 6 § 2(N), 2001)

Article III. Notice of Decision

15.24.210 When required.

The city shall provide a notice of decision on all Review Process II and III applications. Except as otherwise provided in this title or by state law, the notice of decision shall be issued within one hundred twenty days after the determination of completeness.

For Review Process II and III shoreline permits for limited utility extensions or for the construction of a bulkhead or other measures to protect a single-family residence and its appurtenance structures from shoreline erosion, the notice of decision shall be issued within twenty-one days of the last day of the comment period. (Ord. 2975-07 § 13, 2007: Ord. 2530-01, Ch. 6 § 3(A), 2001)

15.24.220 Determining time limits.

The city shall use the procedures in Chapter 15.20, Article III, Time Limits for Permits and Permit Processing, for determining the number of days that have elapsed after the issuance of its determination that the application was complete. (Ord. 2530-01, Ch. 6 § 3(B), 2001)

15.24.230 SEPA statement.

The notice of decision shall include a statement of any SEPA threshold determination and the procedures for any administrative appeal. The notice of decision may be a copy of the report or decision on the project permit application. (Ord. 2530-01, Ch. 6 § 3(C), 2001)

15.24.240 Recipient of notice.

The notice shall be provided to the applicant and to any person who, prior to the rendering of the decision, made a written request for a notice of the decision or submitted substantive comments on the application. (Ord. 2530-01, Ch. 6 § 3(D), 2001)

15.24.250 Shoreline permits.

A notice of decision for a Review Process II or III shoreline substantial development, variance, and/or conditional use permit shall also be provided to the Washington State Department of Ecology and the Attorney General’s Office. The notice of decision sent to the Department of Ecology and the Attorney General’s Office shall comply with the requirements of WAC 173-27-130 and shall include:

A. A copy of the complete application;

B. Findings and conclusions that establish the basis for the decision including but not limited to identification of shoreline environment designation, applicable master program policies and regulations, and the consistency of the project with appropriate review criteria for the type of permit(s) as established in WAC 173-27-140 through 173-27-170;

C. The final decision;

D. The permit data sheet required by WAC 173-27-990;

E. The applicable SEPA documents or a statement summarizing the SEPA determinations; and

F. When the project has been modified in the course of the local project review process, plans or text shall be provided that clearly indicate the final approved plan. (Ord. 2530-01, Ch. 6 § 3(E), 2001)

15.24.260 Shoreline conditional uses and variances—Final decision.

After taking actions on a substantial development permit designated to be a conditional use or variance in the master program, the city shall submit the permit to the Department of Ecology for final action. For shoreline variance and conditional use permits, the Department of Ecology issues the final decision. The Department of Ecology shall render and so notify the city and the applicant of its final decision approving or disapproving the permit within thirty days of filing by the city. The city shall notify those interested persons having contacted local government under the final decision. (Ord. 2530-01, Ch. 6 § 3(F), 2001)

15.24.270 Examiner decision as notice.

For Review Process IIIA, the notice of decision shall be the written decision of the hearing examiner. (Ord. 2530-01, Ch. 6 § 3(G), 2001)

15.24.280 Time limits not met.

If the city is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision. (Ord. 2530-01, Ch. 6 § 3(H), 2001)

Article IV. Appeals

15.24.290 Scope of project review and appeals— Prohibition on reexamining certain alternatives and on appeals.

As required by RCW 36.70B.030, except for issues of code interpretation, neither the city nor any reviewing body shall reexamine alternatives to or hear appeals on the following items:

A. Type of land use permitted at the site, including uses that may be allowed under certain circumstances, such as planned unit development and conditional and special uses, if the criteria for their approval have been satisfied;

B. Density of residential development in urban growth area; and

C. Availability and adequacy of public facilities identified in the comprehensive plan, if the plan or development regulations provide for funding of these facilities as required by Chapter 36.70A RCW. (Ord. 2530-01, Ch. 6 § 4(A), 2001)

15.24.300 Time limit for appeal decisions.

Land use permit decisions and SEPA determinations, including the adequacy of a final EIS, shall be appealable as provided for in this section. For purposes of this section, a final decision means the decision issued after any reconsideration or remand if applicable. The time period for hearing and deciding an administrative appeal to the city shall not exceed ninety days. However, the parties to an appeal may agree to extend this time period. This appeal period is not included in the time limit for issuing a permit (Section 15.20.090). (Ord. 2530-01, Ch. 6 § 4(B), 2001)

15.24.310 SEPA appeals.

The city establishes the following administrative appeal procedures under the SEPA ordinance (Chapter 20.04), RCW 43.21C.075 and WAC 197-11-680. For purposes of this subsection, “EIS” means a final environmental impact statement, final supplemental environmental impact statement, or a notice of adoption or addendum to a final EIS/SEIS that is prepared and used by the city for making a decision on the proposal. Except as specified in this chapter, SEPA appeals on land use permit decisions and any other city proposals shall be filed and heard at the same time as appeals on the applicable land use permit or city proposal.

A. Procedural and Substantive Compliance. For purposes of utilizing SEPA to assist in governmental planning and decisionmaking the city recognizes a right of appeal by any aggrieved person on whether governmental action is in compliance with the substantive and procedural provisions of SEPA, including a threshold determination (DNS, MDNS or DS), adequacy of an EIS, and of a decision document issued by the responsible official or city which conditions or denies a project on the basis of SEPA substantive authority. Any SEPA appeal shall meet the requirements of SEPA (see RCW 43.21C.075), the SEPA ordinance (Chapter 20.04), and this title, as further specified in this section.

B. Review Process V and VI—Judicial Appeal Only, Except for Determination of Significance. No SEPA administrative appeal to the city is provided for Review Process V and VI other than for an appeal of a determination of significance to the examiner. The examiner’s open record appeal hearing shall occur prior to any permit hearing by a body designated under Review Process V and VI to make a recommendation or decision on the project. Any further SEPA appeal shall not occur prior to a permit decision under Review Process V or VI. Any appeals of Review Process V and VI decisions shall be to Snohomish County superior court under Chapter 36.70C RCW (the Land Use Petition Act or LUPA).

C. Review Process I, II, and III—Administrative and Judicial Appeal. SEPA administrative appeals are provided for Review Process I, II, and III. All SEPA administrative appeals shall be to the examiner and are subject to the consolidated appeals provisions of this title. Any appeal of the examiner’s decision shall be to Snohomish County superior court under Chapter 36.70C RCW. This means:

1. For Review Process I and II permits, one open record appeal hearing is allowed on the appeal of a SEPA threshold determination and permit together. If the examiner requires an EIS, one subsequent open record appeal is allowed on the adequacy of the EIS and permit together.

2. For Review Process III permits, the examiner must hear the SEPA administrative appeal for a Review Process III permit at the same open public hearing where the examiner makes a recommendation or decision on the permit. If the examiner requires an EIS or supplemental EIS, the examiner must hear any appeal of the EIS at the open public hearing on the permit (which will generally be continued pending the preparation of the required environmental document).

3. For Review Process I, II, and III, an appeal of a SEPA determination of significance shall be heard by the examiner in its own separate open record appeal hearing, prior to the further processing of the land use permit application or issuance of a decision.

D. Appeals on Other City Proposals. This paragraph applies to appeals of SEPA procedural determinations on project or nonproject proposals by the city that are not city legislative actions. If a SEPA threshold determination or EIS on a city proposal is issued prior to an application for a land use permit (or if no land use permit is required for the proposal), the city shall allow an administrative appeal to the examiner in the public notice of the SEPA determination. The examiner shall hear only the SEPA procedural appeal and shall not have jurisdiction over review of the city proposal unless otherwise provided by city ordinance. There shall be no further appeal of the examiner’s appeal decision until after the city makes a final decision on the proposal.

E. Appeals To and From the Examiner. The examiner shall provide for the preparation of a record for use in any subsequent appeal proceedings. Any further appeal of the examiner’s decision on a SEPA administrative appeal on a Review Process I, II, and III permit shall be to Snohomish County superior court under Chapter 36.70C RCW together with the appeal of the permit (unless state law provides for a different appeal process, such as to the Shoreline Hearings Board).

F. Deference to Responsible Official. The procedural determinations made by the city’s responsible official shall be entitled to substantial weight. (Ord. 2975-07 § 14, 2007; Ord. 2530-01, Ch. 6 § 4(C), 2001)

15.24.320 Permit appeals.

A. Review Process I, Minor Administrative Decisions. Appeals of Review Process I decisions shall be heard by the examiner in the manner provided for in Review Process II appeals.

B. Review Process II, Administrative Decisions. Appeals of administrative decisions, including decisions for SEPA threshold determinations, shall be heard by the examiner. The examiner’s decision on the appeal shall be final. Appeals of examiner’s decision shall be to Snohomish County superior court in accordance with Chapter 36.70C RCW and filed within twenty-one days of issuance of the decision. Exception: no city administrative appeal is provided for limited utility extensions or construction of a bulkhead or other measures to protect a single-family residence and its appurtenant structures from shoreline erosion, as defined in RCW 90.58.140(11)(b); any appeal shall be directly to the Shoreline Hearings Board.

C. Review Process IIIA, Hearing Examiner Decisions. The decision of the examiner on Review Process IIIA applications, including SEPA determinations, shall be final. Appeals of the examiner’s decisions shall be to Snohomish County superior court in accordance with Chapter 36.70C RCW and filed with twenty-one days of issuance of the decision; provided however, that appeals of the examiner’s decision on shoreline substantial development permits or revisions shall be to the shorelines hearings board as set forth in RCW 90.58.180 and Chapter 461-08 WAC, the rules of practice and procedure of the shorelines hearings board.

1. Appeals of revisions to shoreline permits not requiring a conditional use permit or variance shall be in accordance with RCW 90.58.180 and shall be filed within twenty-one days from the date of receipt of the city’s action by the Department of Ecology. The party seeking review shall have the burden of proving the revision granted was not within the scope and intent of the original permit.

2. Appeals of revisions to shoreline permits requiring a conditional use permit or variance shall be in accordance with RCW 90.48.180 and shall be filed within twenty-one days from the date of receipt of the city’s action by the Department of Ecology. The party seeking review shall have the burden of proving the revision granted was not within the scope and intent of the original permit.

D. Review Process IIIB, Hearing Examiner Recommendation to Council. There is no appeal of the examiner’s recommendation. The decision of the city council constitutes the final action of the city and is appealable to Snohomish County superior court in accordance with Chapter 36.70C RCW and shall be filed within twenty-one calendar days of issuance of the decision.

If a SEPA procedural determination is appealed for a proposal subject to Review Process IIIB, the appeal shall be heard with the examiner’s open public hearing on the permit. The decision of the examiner shall be final and shall be stated in the examiner’s recommendation to the city council on the Review Process III permit. Any further SEPA appeal shall be to Snohomish County superior court under Chapter 36.70C RCW together with the city council decision on the permit. Nothing in this paragraph limits the authority of the city council to condition or deny a proposed project under Review Process IIIB under applicable city standards and ordinances.

E. Repealed by Ord. 2975-07.

F. Review Process VA, Planning Commission/City Council Quasi-Judicial Decisions. The decision of the planning commission constitutes a recommendation to the city council. The decision of the city council constitutes the final action of the city and is appealable to Snohomish County superior court in accordance with Chapter 36.70C RCW and shall be filed within twenty-one days of issuance of the decision.

G. Review Process VB, Historic Commission/City Council Decisions on Proposed Demolitions of Historic Structures. The decision of the historic commission constitutes a recommendation to the city council. The decision of the city council constitutes the final action of the city and is appealable to Snohomish County superior court in accordance with Chapter 36.70C RCW and shall be filed within twenty-one calendar days of issuance of the decision.

H. Review Process VI, City Council Decision. The decision of the city council is final. All appeals shall be to Snohomish County superior court in accordance with Chapter 36.70C RCW and shall be filed within twenty-one days of issuance of the decision. (Ord. 2975-07 § 15, 2007; Ord. 2530-01, Ch. 6 § 4(D), 2001)

15.24.330 Consolidated administrative appeals.

A. Any appeal of Review Process I or II permits and any appeal of environmental determinations on these permits (other than an appeal of a SEPA determination of significance) shall be considered together in a single consolidated open record appeal hearing before the hearing examiner. The examiner’s decision on the appeal shall be final.

B. Any appeal of a SEPA determination, other than a SEPA determination of significance for a Review Process III decision shall be considered in a single hearing before the examiner. The examiner shall consolidate the open public hearing on the permit with the open record appeal hearing on the SEPA determination.

C. The examiner’s decision on both the SEPA appeal and a Review Process IIIA permit shall be final. The examiner’s decision on a SEPA procedural appeal shall be final and shall accompany the examiner’s recommendation on a Review Type IIIB permit to the city council.

D. The time period for the examiner to issue a recommendation or render decision under Review Process III shall be extended as necessary for the examiner to hear and render a decision on the appeal, subject to the ninety-day limit to issue an appeal decision.

E. Exceptions.

1. A subsequent proceeding shall be allowed on the adequacy of an EIS and associated permit;

2. A separate open record appeal hearing shall be allowed on a SEPA determination of significance prior to further processing of the land use permit or issuance of a decision;

3. A separate open record appeal hearing on a SEPA procedural determination (threshold determination or EIS adequacy) shall be provided on city proposed actions other than those requiring city council legislative decisions, where the proposed action is not a Review Process I through VI application, as provided by Section 15.24.310(D). For example, a plan or public project proposed or funded by a city agency that does not require city council action or a nonexempt permit at the time the city agency is deciding whether to adopt the proposal. An aggrieved party must file an appeal within fourteen days of the issuance of the threshold determination or EIS on the proposal; provided, that the environmental document or notice of availability has given notice of this administrative appeal procedure. (Ord. 2530-01, Ch. 6 § 4(E), 2001)

15.24.340 Appeal deadlines and filing requirements.

A. Permit Appeal—Fourteen Days. Any administrative appeal of a land use permit decision shall be combined with any appeal of any environmental determinations, and shall be filed within fourteen days after the notice of the decision or after other notice that the decision has been made and is appealable.

B. SEPA Appeal—Fourteen Days. Regardless of the applicable review process, an appeal of a SEPA threshold determination, including a determination of significance, shall be filed with the SEPA responsible official or as identified on the threshold determination within fourteen days of the issuance of the threshold determination. Failure to file within fourteen days constitutes failure to exhaust administrative remedies and waives all right of an appeal. Subsequent publication of a notice of action under RCW 43.21.080 shall not be construed to recommence a right of appeal if a party failed to exhaust its administrative remedies.

C. Appeal Forms. All appeals must be filed on forms provided by the planning department and will not be considered valid unless the appeal form is filled out clearly, completely, and legibly and is accompanied by the applicable fee.

D. Filing. Appeals must be received by the planning department by five p.m. on the last business day of the appeal period, and may be delivered to the planning department by hand, by fax, or by mail. An appeal may be filed electronically if the city provides written or electronic acknowledgement that the appeal was received by the deadline.

E. Computing Appeal Time Periods. For purposes of computing the time period for an administrative appeal, the day from which the designated period of time begins to run shall not be included. The appeal period starts from and includes the day after the date of mailing of the decision, not withstanding whether that day is a Saturday, Sunday, or legal holiday. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050 and by city ordinance.

F. Appeal to Court. Except where state law expressly provides for a different appeal process of a city land use permit, any appeal of a Review Process V and VI decision and any further appeal of an administrative appeal decision on a land use permit and associated SEPA determination by the examiner under this title shall be filed with the Snohomish County superior court within twenty-one days of the issuance of the land use decision, in accordance with the filing and other requirements of the Land Use Petition Act, Chapter 36.70C RCW. RCW 36.70C.040 specifies the method of computing the time period for a judicial appeal under the Land Use Petition Act (LUPA). (Ord. 2975-07 § 16, 2007; Ord. 2975-07 § 16, 2007; Ord. 2530-01, Ch. 6 § 4(F), 2001)

15.24.350 Appeal procedures.

The following procedures (subsections A through C) shall apply to any appeal heard by the examiner under this title unless the examiner holds a prehearing conference under subsection D of this section and issues an order establishing the appeal procedure.

A. Memorandum to Examiner. Within ten days of filing the appeal and at least twenty days prior to the date of the scheduled hearing on the appeal before the examiner, the appellant shall file with the office of the hearing examiner a memorandum setting forth the appellant’s arguments and authority. Such arguments and authority shall be restricted to those issues set forth in appellant’s written appeal statement;

B. Staff Report. At least ten days prior to the date of the scheduled hearing before the examiner, city staff shall file with the office of the hearing examiner and provide the appellant with a staff report responding to the appellant’s memorandum concerning the appeal; and

C. Reply Memorandum. At least five days prior to the date of the scheduled hearing before the examiner, the appellant shall file with the office of the hearing examiner any reply memorandum which the appellant desires to file. The scope of the reply memorandum shall be restricted to responding to issues raised in the staff report.

D. Prehearing Conference. A prehearing conference may be held at the discretion of the examiner within ten days of the filing of the appeal. If the examiner exercises his discretion to hold a prehearing conference on an appeal, subsequent to the prehearing conference, the examiner shall issue an order establishing the procedure and schedule for the consolidated open public hearing, and for the submittal of reports by city staff, applicant, and appellant. The examiner’s order shall provide for the submittal of appellant’s memorandum setting forth the appellant’s arguments and authority, a city staff report responding to appellant’s memorandum, applicant’s memorandum responding to the appellant’s memorandum, and appellant’s reply memorandum. All written reports shall be submitted prior to the appeal hearing, consistent with the terms of the order. The parties shall provide copies of all submitted material to the other parties.

Failure to comply with the requirements of this section may result in the examiner taking such action in regard to the failure as is appropriate including, but not limited to dismissing the matter, continuing the hearing, postponing the hearing or limiting testimony at the hearing. (Ord. 2530-01, Ch. 6 § 4(G), 2001)

15.24.360 Standing.

Standing to bring a land use permit and SEPA appeal under this title is limited to the following persons:

A. The applicant and the owner of property to which the land use decision is directed; and

B. Another person aggrieved or adversely affected by the land use decision, or who would be aggrieved or adversely affected by a reversal or modification of the land use decision. A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:

1. The land use decision has prejudiced or is likely to prejudice that person;

2. That person’s asserted interests are among those that the city was required to consider when it made the land use decision; and

3. A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision;

C. Certain persons who have participated in the project review process have standing to participate in administrative appeals, regardless of whether they have filed an appeal (see Section 15.24.300). (Ord. 2530-01, Ch. 6 § 4(H), 2001)

15.24.370 Appeals—Burden of proof.

The burden of proof for all appeals provided for by this title shall be upon the appellant. (Ord. 2530-01, Ch. 6 § 4(I), 2001)

15.24.380 Effect of decision.

The filing of any administrative appeal in accordance with the appeal provisions provided in this title shall stay all development activity based on the decision granting the application until such time as the city issues a final decision on the matter. Any applicant receiving approval who engages in any activity based on the decision granting the application prior to the filing of any appeal or prior to the expiration of any administrative appeal period, does so at his/her own risk. (Ord. 2530-01, Ch. 6 § 4(J), 2001)

Article V. Open Public Hearing—Procedures

15.24.390 Limitations—Subject matter.

No more than one open public hearing shall be provided, except as expressly provided by state law and this title. The hearing may be a hearing on whether to approve a project or an appeal hearing on a project decision and/or an appeal of a SEPA determination, as provided in this title. (Ord. 2530-01, Ch. 6 § 5(A), 2001)

15.24.400 Procedures.

For any open public hearing or open record appeal hearing conducted under this title, the following minimum procedures shall be followed:

A. In quasi-judicial proceedings, the appearance of fairness doctrine, Chapter 42.36 RCW, shall apply;

B. The burden of proof is on the applicant or, in the case of an appeal, the appellant;

C. Staff will make a report and opponents and proponents will be provided an opportunity to present information;

D. Presiding officer/hearing examiner may place time limitations on testimony; and

E. When an appeal is filed by an applicant seeking to modify or eliminate a SEPA or land use permit condition included in a DNS, EIS, or other SEPA determination establishing SEPA mitigation requirements or in a final administrative decision, any citizen who has actively participated in the review of the proposal by submitting timely written comments during the public comment period shall be provided an opportunity to testify and/or present information to the hearing examiner regarding the appeal of the SEPA or land use permit condition.

F. The hearing body/hearing examiner shall take appropriate action including approving, conditionally approving, or denying the application in the required form of a decision or recommendation. In the case of an appeal, appropriate action shall be taken including affirming, reversing, or remanding.

If the hearing body/hearing examiner remands the matter to the director, the hearing body/hearing examiner shall specify the additional information he is requesting from the director and the hearing shall be continued. The director in his sole discretion and in consideration of the time necessary to prepare a response to the remand and the required content of the response, may require additional public notice of the continued hearing; provided however, a failure to require additional notice under this subsection shall not be deemed a defect in public notice. (Ord. 2530-01, Ch. 6 § 5(B), 2001)