Chapter 19.25
PROCEDURES FOR LAND USE DECISIONS, PUBLIC NOTICE, HEARINGS AND APPEALS
Sections:
19.25.020 Classifications of land use decision processes.
19.25.030 Preapplication conferences.
19.25.040 Application requirements.
19.25.050 Determination of completeness.
19.25.060 Notice of application.
19.25.065 Public notice boards.
19.25.080 Applications – Modifications to proposal.
19.25.083 Application cancelled for inactivity.
19.25.095 Applications – Limitations on refiling of applications.
19.25.010 Chapter purpose.
The purpose of this chapter is to establish standard procedures for land use decisions, including public notice, hearings and appeals. These procedures are designed to promote timely and informed public participation in discretionary land use decisions; eliminate redundancy in the application, permit review, hearing and appeal processes; provide for uniformity in public notice procedures; minimize delay and expense; and result in development approvals that implement the policies of the comprehensive plan. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.020 Classifications of land use decision processes.
A. Land use decisions are classified into five types, based on the amount of discretion associated with each decision. Procedures for the five different types are distinguished according to who makes the decision, whether public notice is required, whether a public hearing is required before a decision is made and whether administrative appeals are provided. The types of land use decisions are listed in Exhibit A of this section.
1. Type 1 decisions are made by the city manager. Type 1 decisions are nonappealable administrative decisions that require the exercise of little or no administrative discretion. Public notice is not required for Type 1 decisions.
2. Type 2 decisions are made by the city manager. Type 2 decisions are discretionary decisions that are subject to administrative appeal.
3. Type 3 decisions are quasi-judicial decisions made by the hearing examiner following an open record hearing. Type 3 decisions may be appealed directly to King County superior court, pursuant to Chapter 36.70C RCW, the Land Use Petition Act, based on the record established by the hearing examiner.
4. Type 4 decisions are quasi-judicial decisions made by the city council based on the record established by the hearing examiner.
5. Type 5 decisions are legislative decisions made by the city council.
B. Except as provided in KMC 16.75.060 and 19.35.160 or unless otherwise agreed to by the applicant, all Type 2, 3 and 4 decisions included in consolidated permit applications that would require more than one type of land use decision process may be processed and decided together, including any administrative appeals, using the highest-numbered land use decision type applicable to the project application. KMC 16.75.060 sets out the combined hearing authority for shoreline exemptions, shoreline substantial development permits, shoreline variances, and shoreline conditional use permits.
C. Certain development proposals are subject to additional procedural requirements beyond the standard procedures established in this chapter.
D. Land use permits that are categorically exempt from review under SEPA do not require a threshold determination (determination of nonsignificance (DNS) or determination of significance (DS)). For all other projects, the SEPA review procedures in Chapter 19.35 KMC are supplemental to the procedures in this chapter.
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TYPE 12 |
Decision by city manager; no administrative appeal |
Building; demolition; moving; engineering; clearing and grading; sign; change of use and/or classification under KMC Title 15; accessory dwelling unit; home occupation; boundary line adjustment; right-of-way; street standards variance; adjustment under Chapter 13.35 KMC; shoreline exemption; temporary use; binding site plan; preliminary subdivision or short subdivision revision if not a substantial change; short plat alteration if not a substantial change; affordable housing project as described in KMC 18.77.060(A). |
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TYPE 2 |
Decision by city manager; appealable to hearing examiner; no further administrative appeal1, 5 |
Home industry; short subdivision; preliminary short subdivision revision; short plat alteration; zoning variance; conditional use permit; shoreline substantial development permit; shoreline variance; shoreline conditional use permit; site plan review for uses allowed by zone; wireless communication facility minor adjustment under Chapter 18.60 KMC; approval of residential density incentives under KMC 18.80.060(A)(2) or transfer of development credits under KMC 18.80.090(A); reuse of public schools; reasonable use exceptions under KMC 18.55.180; public agency and utility exceptions under KMC 18.55.160; other critical areas exceptions, variances and decisions to require studies or to approve, condition or deny a development proposal based on Chapter 18.55 KMC; variances to exceptional tree regulations as set forth in KMC 18.57.063. |
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TYPE 3 |
Recommendation by city manager; hearing and decision by hearing examiner; appealable directly to King County superior court, pursuant to Chapter 36.70C RCW, the Land Use Petition Act, on the record |
Preliminary subdivision; plat alteration; preliminary subdivision revision; special use; wireless communication facility major adjustment under Chapter 18.60 KMC. |
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TYPE 4 |
Recommendation by city manager; hearing and recommendation by hearing examiner; decision by city council on the record |
Zone reclassification not related to a site-specific comprehensive plan land use map amendment3; shoreline environment redesignation; plat vacation; short plat vacation; site plan review for uses not allowed by zone pursuant to Chapter 18.105 KMC; master plans other than those required in order to obtain a comprehensive plan amendment or related zoning map or text amendment. |
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TYPE 5 |
Hearing and recommendation by planning commission or other city council-appointed advisory body4; decision by city council on the record. Appealable to Growth Management Hearings Board pursuant to Chapter 36.70A RCW |
Comprehensive plan amendment; development regulation amendment; zoning map amendment related to a site-specific comprehensive plan land use map amendment; master plans required in order to obtain a comprehensive plan amendment or related zoning map or text amendment pursuant to Chapter 18.120 KMC. |
1 All shoreline permits, including shoreline variances and conditional uses, are appealable to the State Shorelines Hearings Board and not to the hearing examiner.
2 Type 1 land use decisions that are not categorically exempt from environmental review under Chapter 43.21C RCW (State Environmental Policy Act) shall provide a notice of application per KMC 19.25.060 and a notice of decision per KMC 19.25.090. The notice of decision may be a copy of the permit.
3 Approvals that are consistent with the comprehensive plan may be considered by the city council at any time. Zone reclassifications that are not consistent with the comprehensive plan land use map require a site-specific comprehensive plan land use map amendment and the city council’s hearing, and consideration shall be considered a Type 5 land use decision and scheduled with the amendment to the comprehensive plan under Chapter 19.20 KMC.
4 If the proposal is being considered as part of the annual docket work program as described in Chapter 19.20 KMC. If the proposal is not part of the annual docket, the city council conducts the public participation process and makes the decision on the record.
5 Decisions on shoreline variance and shoreline conditional use permits require approval by the Department of Ecology.
[Ord. 23-0593 § 5 (Exh. C); Ord. 21-0521 § 3 (Exh. B); Ord. 19-0481 § 2 (Exh. A); Ord. 16-0426 § 8 (Att. F); Ord. 12-0334 § 18; Ord. 11-0329 § 3 (Exh. 1).]
19.25.030 Preapplication conferences.
A. Prior to filing a permit application for a Type 1 decision for new commercial or multifamily development, for a change of use and/or classification, for a portable/modular structure, or for moving a building, the applicant shall contact the department to schedule a preapplication conference which shall be held prior to filing the application, except as provided herein.
Prior to filing a permit application requiring a Type 2, 3 or 4 decision, the applicant shall contact the department to schedule a preapplication conference which shall be held prior to filing the application, except as provided herein. The purpose of the preapplication conference is to review and discuss the application requirements with the applicant and provide comments on the development proposal.
B. The preapplication conference shall be scheduled by the department, at the request of an applicant, and shall be held in a timely manner, within 30 days from the date of the applicant’s request.
C. The city manager may waive the requirement for a preapplication conference if it is determined to be unnecessary for review of an application.
D. Nothing in this section shall be interpreted to require more than one preapplication conference or to prohibit the applicant from filing an application if the department is unable to schedule a preapplication conference within 30 days following the applicant’s request.
E. At or subsequent to a preapplication conference, the department may issue a preliminary determination that a proposed development is not permissible under applicable City policies or regulations. In that event, the applicant shall have the option to appeal the preliminary determination to the hearing examiner, as provided for in Chapter 19.30 KMC, as an alternative to proceeding with a complete application. Mailed and published notice of the appeal shall be provided for as in KMC 19.25.060(E)(2) and (3).
F. A preapplication conference also may be held for other Type 1 land use decisions, if requested by an applicant or required by the department. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.040 Application requirements.
A. The department shall not commence review of any application for a land use decision until the applicant has submitted the materials and fees specified for complete applications.
B. The department shall specify the application requirements for Type 1 and Type 5 land use decisions on forms provided to the public.
C. For Type 2, 3 and 4 land use decisions, the applicant shall file the following information with the department:
1. A complete permit application, with supporting affidavits, on forms provided by the department;
2. Information specified on the application checklist provided by the department for the requested decision(s); and
3. Any additional information or materials that the department specifies at the pre-application meeting.
D. The applicant may file a single application form for all Type 2, 3 and 4 land use decisions requested for the development proposal at the time the application is filed.
E. A permit application is complete for purposes of this section when it meets the procedural submission requirements of the department and is sufficient for continued processing even though additional information may be required or project modifications may be undertaken subsequently. The determination of completeness shall not preclude the department from requesting additional information or studies either at the time of notice of completeness or subsequently if new or additional information is required or substantial changes in the proposed action occur, as determined by the department.
F. The city manager may waive any specific submittal requirements that are determined to be unnecessary for review of an application.
G. The applicant shall attest by written oath to the accuracy of all information submitted for an application. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.050 Determination of completeness.
A. Within 28 calendar days following receipt of a land use permit application, the department shall mail or provide written notice to the applicant that the application is either complete or incomplete. If the application is incomplete, the notice shall state with specificity what is necessary to make the application complete. To the extent known by the department, the notice shall identify other agencies of local, State, regional or federal governments that may have jurisdiction over some aspects of the development proposal.
B. An application shall be deemed complete under this section if the department does not provide written notice to the applicant that the application is incomplete within the 28-day period as provided herein.
C. If the application is incomplete and the applicant submits the additional information requested by the department, the department shall notify the applicant in writing within 14 calendar days whether the application is complete or what additional information specified by the department as provided in subsection A of this section is necessary to make the application complete. An application shall be deemed complete if the department fails to provide written notice to the applicant within the 14-day period that the application is incomplete.
D. The department’s determination of completeness as provided in subsection A or C of this section, or the failure of the department to provide such determination as provided in subsection B or C of this section, shall cause an application to be conclusively deemed to be complete and vested as provided in this chapter. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.055 Vesting.
A. Applications for Type 1, 2, and 3 land use decisions, except those which seek variance from or exception to land use regulations, shall be considered under the zoning and other land use control ordinances in effect on the date a complete application is filed meeting all of the requirements of this chapter. The department’s issuance of a determination of completeness as provided in this chapter, or the failure of the department to provide such a notice as provided in this chapter, shall cause an application to be conclusively deemed to be vested as provided herein.
B. Supplemental information required after vesting of a complete application shall not affect the validity of the vesting for such application.
C. Vesting of an application does not vest any subsequently required permits, nor does it affect the requirements for vesting of subsequent permits or approvals. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.060 Notice of application.
A. A notice of application shall be provided to the public for all land use permit applications requiring Type 2, 3 or 4 decisions or Type 1 decisions subject to SEPA.
B. A public comment period of at least 21 calendar days shall be provided, except as otherwise provided in WAC 173-27-110 and 173-27-120 regarding shoreline permits and RCW 58.17.215 regarding subdivision alterations. The public comment period shall commence on the third calendar day following the department’s mailing of the notice of application as provided for in subsection E of this section.
C. All required notices of application shall contain the following information:
1. The file number;
2. The name of the applicant;
3. The date of application, the date of the determination of completeness and the date of the notice of application;
4. A description of the project, the location, a list of the permits included in the application and the location where the application and any environmental documents or studies can be reviewed;
5. A site plan on eight-and-one-half-by-14-inch paper, if applicable;
6. The procedures and deadline for filing comments, requesting notice of any required hearings and any appeal procedure;
7. The date, time, place and type of hearing, if applicable and scheduled at the time of notice;
8. The identification of other permits not included in the application to the extent known;
9. The identification of existing environmental documents that evaluate the proposed project; and
10. A statement of the preliminary determination, if one has been made, of those development regulations that will be used for project mitigation and of consistency with applicable City plans and regulations.
D. If the optional DNS process under KMC 19.35.100 is used, the notice of application shall identify the SEPA comment period and other information as required by WAC 197-11-355.
E. Within 14 calendar days of the determination of completeness for the application, the notice of application shall be:
1. Posted at the project site on one or more public notice boards as provided in KMC 19.25.065;
2. Mailed by first class mail as follows:
a. To owners of record of property in an area within 1,000 feet of the site, but the area shall be expanded as necessary to send mailed notices to at least 20 different property owners;
b. To the State Department of Transportation, if the site adjoins a State highway;
c. To the affected tribes;
d. To any agency or community group which the department may identify as having an interest in the proposal;
e. For preliminary plats only, to all cities within one mile of the proposed preliminary plat, and to all airports within two miles of the proposed preliminary plat;
f. For residential uses of 10 or more dwelling units only, to affected school districts.
3. Published in the City’s official newspaper of record.
F. An affidavit of posting shall be submitted to the department by the applicant within 14 calendar days following the department’s determination of completeness to allow continued processing of the application by the department.
G. Mailed notice shall be considered supplementary to posted notice and be deemed satisfactory despite the failure of one or more owners to receive mailed notice. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.065 Public notice boards.
Public notice boards shall be installed by the applicant for Type 2, 3 and 4 land use decisions or Type 1 decisions subject to SEPA within 14 days following the department’s determination of completeness as follows:
A. A single notice board shall be installed for a project:
1. At the midpoint of the site street frontage or as otherwise directed by the department for maximum visibility;
2. Five feet inside the street property line unless otherwise approved by the department;
3. So that the top of the notice board is between seven and nine feet above grade; and
4. Where it is completely visible to pedestrians;
B. Additional notice boards may be required when:
1. The site does not abut a public street;
2. A large site abuts more than one public street; or
3. The department determines that additional notice boards are necessary to provide adequate public notice;
C. Notice boards shall be:
1. Maintained in good condition by the applicant during the notice period through the time of the final City decision on the proposal, including the expiration of any applicable appeal periods;
2. Removed within 14 calendar days after the end of the administrative appeal period for Type 2 decisions and within 14 calendar days after the final City decision on the application for Type 3 and 4 decisions or Type 1 decisions subject to SEPA;
D. Removal of the notice board before the end of the time period specified in subsection (C)(2) of this section may be cause for discontinuance of City review or extension of the appeal period until the notice board is replaced and remains in place for the specified time period;
E. Notice boards shall be constructed and installed in accordance with specifications promulgated by the department. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.080 Applications – Modifications to proposal.
A. Modifications required by the City to a pending application shall not be deemed a new application.
B. An applicant-requested modification occurring either before or after issuance of the permit shall be deemed a new application when such modification would result in a substantial change in a project’s review requirements, as determined by the department. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.083 Application cancelled for inactivity.
An application for a decision under this chapter may be cancelled for inactivity if an applicant fails to respond to the department’s written request for revisions, corrections, or additional information within 90 days of the date of request. This written request shall include clear notice to the applicant that this cancellation may occur. The department may extend the response period beyond 90 days if, within the original 90-day time period, the applicant provides and subsequently adheres to an approved schedule with specific target dates for submitting the full revisions, corrections, or other information needed by the department. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.085 Type 2 decisions.
A. Type 2 land use decisions shall be based upon compliance with the development standards and approval criteria for the requested decision.
B. The written decision contained in the record shall show:
1. Facts, findings and conclusions supporting the decision and demonstrating compliance with the applicable decision criteria; and
2. Any conditions and limitations imposed, if the request is granted.
C. Rules. The city manager shall keep a public record of his or her actions, findings, waivers and determinations. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.090 Notice of decision.
The department shall provide notice in a timely manner of the final decision on Type 2, 3, and 4 land use decisions or Type 1 decisions subject to SEPA, including the threshold determination, if any, and the procedures for administrative appeals, if applicable. Notice shall be provided to the applicant, to the Department of Ecology and Attorney General as provided in Chapter 90.58 RCW (Shoreline Management Act), and to any person who, prior to the decision, had requested notice of the decision or submitted comments on the application. The notice of decision shall be posted on the public notice board(s) as provided in KMC 19.25.065 and an affidavit of posting shall be submitted to the department by the applicant within six calendar days following the department’s mailing of the notice. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.092 Appeals.
Except for shoreline permits which are appealable to the State Shorelines Hearings Board, all notices of appeal to the hearing examiner of Type 2 land use decisions made by the city manager shall be filed within 21 calendar days from the date of issuance of the notice of decision as provided in KMC 19.30.080. A notice of appeal shall include a statement of appeal in accordance with KMC 19.30.080(B). [Ord. 11-0329 § 3 (Exh. 1).]
19.25.095 Applications – Limitations on refiling of applications.
Upon denial by the hearing examiner or council of a zone reclassification or a special use permit, no new application for substantially the same proposal shall be accepted within one year from the date of denial. [Ord. 11-0329 § 3 (Exh. 1).]
19.25.100 Permit issuance.
A. Final decisions by the City on all permits and approvals subject to the procedures of this chapter shall be issued within 120 calendar days from the date the applicant is notified by the department pursuant to this chapter that the application is complete.
The following periods shall be excluded from this 120-day period:
1. Any period of time during which the applicant has been requested by the department or hearing examiner to correct plans, perform required studies or provide additional information, including street variances and adjustments required under Chapter 13.35 KMC. The period shall be calculated from the date of notice to the applicant of the need for additional information until the earlier of the date the City advises the applicant that the additional information satisfies the City’s request, or 14 calendar days after the date the information has been provided. If the City determines that the correction, study or other information submitted by the applicant is insufficient, it shall notify the applicant of the deficiencies and the procedures of this section shall apply as if a new request for information had been made.
a. The department shall set a reasonable deadline for the submittal of corrections, studies or other information when requested, and shall provide written notification to the applicant. An extension of such deadline may be granted upon submittal by an applicant of a written request providing satisfactory justification of an extension.
b. Failure by the applicant to meet such deadline shall be cause for the department to cancel/deny the application.
c. When granting a request for a deadline extension, the department shall give consideration to the number of days between receipt by the department of a written request for a deadline extension and the mailing to the applicant of the department’s decision regarding that request.
2. The period of time, as set forth in KMC 19.35.090, during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW.
3. A period of no more than 90 calendar days for an open record appeal hearing by the hearing examiner on a Type 2 land use decision.
4. Any period of time during which an applicant fails to post the property, if required by this chapter, following the date notice is required until an affidavit of posting is provided to the department by the applicant.
5. Any time extension mutually agreed upon by the applicant and the department.
B. The time limits established in this section shall not apply if a proposed development:
1. Requires an amendment to the comprehensive plan or a development regulation;
2. Requires the siting of an essential public facility as provided for in RCW 36.70A.200; or
3. Is substantially revised by the applicant, when such revisions will result in a substantial change in a project’s review requirements, as determined by the department, in which case the time period shall start from the date at which the revised project application is determined to be complete.
C. If the department is unable to issue its final decision within the time limits established by 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 final decision. [Ord. 11-0329 § 3 (Exh. 1).]