Chapter 15.16
PERMIT APPLICATIONS PROCEDURE CODE
Sections:
15.16.020 Scope and applicability of code.
15.16.040 Permit Review Commission.
15.16.050 Applications for development permit and construction permit.
15.16.070 Environmental review.
15.16.090 Construction permit.
15.16.100 Appeals to permit review commission – General.
15.16.110 Appeals to Tribal Court – General.
15.16.120 Enforcement – Sanctions.
15.16.010 Purpose of code.
This code establishes procedures for review of applications for Tribal permits to build and develop on trust lands. Many of the standards upon which permit applications will be judged are also to be taken into account by governments regulating development on fee lands. [Ord. 220692a (06/22/92) § 1]
15.16.020 Scope and applicability of code.
(a) Trust Lands. The procedures and standards in this code shall be applicable to the actions listed in PTC 15.16.050(a) that take place on trust lands as defined in PTC 15.16.030.
(b) Fee Lands. The substantive standards included or adopted by reference in this code shall also be applicable to fee lands within the Survey Area to the extent otherwise provided by law, including Sections IV and VIII of the Settlement Agreement and Technical Documents Nos. 4 and 7. Those standards shall be taken into account by governments exercising jurisdiction over fee lands within the Survey Area, as required by the land use consultation process in Technical Document No. 7, and shall be one of the bases for comments and objections made by the Tribe under that process. [Ord. 220692a (06/22/92) § 2]
15.16.030 Definitions.
Unless a different meaning is indicated by the context, the following terms shall have the meanings indicated below:
(a) “Administrative decision” shall mean a final determination made under the provisions of this code by a department of Tribal government or the Permit Review Commission.
(b) “AOV” shall mean administrative order of violation as defined in PTC 15.16.120(b).
(c) “Applicant” shall mean a person or entity who has applied for a permit under this code.
(d) “Certificate of consistency” shall mean the document issued by the Land Use Department pursuant to this code indicating that a proposed project is consistent with the designated land use for the area in which it is to be constructed.
(e) “Conditional use certificate” shall mean the document issued by the Land Use Department pursuant to this code indicating that a proposed project has been given land use approval despite its inconsistency with the designated land use for the area in which it is to be constructed.
(f) “Construction permit” shall mean the permit required by this code covering building, safety and related considerations.
(g) “De novo” shall mean the authority of a reviewing entity to consider all relevant information that is presented and to decide an issue as if it were making the initial determination of that issue.
(h) “Development permit” shall mean the permit required by this code covering land use and environmental elements.
(i) “Environment” and “environmental” shall include physical (including air, land, and water), natural resource, social, cultural, and historical characteristics and components of the area being addressed.
(j) “Environmental Programs Department” and “Environmental Director” shall mean the Puyallup Tribal Environmental Programs Department and its Director.
(k) “Fee land” shall mean land that is not trust land as defined in this code.
(l) “Fisheries Division” and “Fisheries Director” shall mean the Puyallup Tribal Fisheries Division and its Director.
(m) “Fisheries impact dispute system” shall mean the alternative dispute resolution procedure set forth in Section D of Technical Document No. 4 to the Settlement Agreement.
(n) “Land use consultation process” shall mean the procedure set forth in Section C of Technical Document No. 7 to the Settlement Agreement.
(o) “Land Use Department” and “Land Use Director” shall mean the Puyallup Tribal Land Use Department and its Director.
(p) “Permit Review Commission” or “PRC” shall mean the Puyallup Tribal Permit Review Commission created by this code.
(q) “Reservation” shall mean the Puyallup Indian Reservation.
(r) “Responsible department” shall mean that department of Tribal government (either Land Use, Environmental Programs, or Fisheries) with jurisdiction over the subject matter of a violation of this code as provided in PTC 15.16.120.
(s) “Settlement Agreement” shall mean the agreement dated August 27, 1988, adopted by the Puyallup Tribe and various governmental and private parties, and ratified by Congress in PL 101-41, June 21, 1989, 103 Stat. 83, 25 U.S.C. 1773 et seq.
(t) “Shorelines” shall mean all water areas and their associated wetlands, together with the lands underlying them, except (a) shorelines on segments of streams upstream of a point where the mean annual flow is 20 cubic feet per second or less, and (b) shorelines on lakes less than 20 acres in size.
(u) “Survey Area” shall mean the 1873 Survey Area as that term is defined in the Settlement Agreement.
(v) “Technical Document” shall mean one of the seven documents labeled in that manner incorporated in the Settlement Agreement.
(w) “Tribal Council” shall mean the Puyallup Tribal Council, governing body of the Puyallup Indian Tribe.
(x) “Tribal Court” shall mean the Puyallup Tribal Court.
(y) “Tribe” or “Tribal” shall mean the Puyallup Indian Tribe.
(z) “Trust land” shall mean property, including wetlands, shorelines, tidelands, submerged lands and water column above submerged lands, and other waters held in trust by the United States for an individual Indian on the Puyallup Indian Reservation or for the Puyallup Tribe, and, in addition, shall include “restricted land” on the Puyallup Indian Reservation that can be alienated or encumbered by the owner only with the approval of the United States Secretary of the Interior.
(aa) “Wetlands” shall mean areas that are inundated or saturated by ground or surface water at a frequency or duration sufficient to support, or which does support, vegetation typically adapted for life in saturated soil conditions. Wetlands generally include marshes, swamps, bogs, and similar areas and may be but are not necessarily characterized by special soil conditions such as peat, muck and mud. [Ord. 220692a (06/22/92) § 3]
15.16.040 Permit Review Commission.
There is hereby established the Puyallup Tribal Permit Review Commission (hereafter “PRC”).
(a) Voting Members. The PRC shall have three voting members.
(1) Two of the voting members shall be members of the Tribe who are not members of the Tribal Council. These two shall be selected at random from a pool of six Tribal members designated for that purpose by the Tribal Council. A person so designated shall continue as a member of the pool at the pleasure of the Tribal Council. A separate selection of two persons from the pool shall be made for each appeal that is filed with the PRC.
(2) The third voting member shall be a member of the Tribal Council selected at random. A separate selection of the Tribal Council member shall be made for each appeal that is filed with the PRC.
(b) Nonvoting Chairperson. For each appeal filed with the PRC, the Tribal Council shall contract with an individual who is not a member of the Tribe to act as the Chairperson of the PRC. The Chairperson shall be responsible for the PRC’s preparation for and conduct of hearings and other matters related to an appeal. The Chairperson shall not have a vote in the PRC’s deliberations. An individual may be retained as Chairperson for one or for more than one appeal heard by the PRC.
(c) Decisions of PRC. Decisions of the PRC shall be by majority vote of the three voting members of a panel of the PRC. [Ord. 220692a (06/22/92) § 4]
15.16.050 Applications for development permit and construction permit.
(a) Permits Required. No person or entity shall undertake any of the following activities on any trust land without first obtaining from the Tribe two permits, a development permit and a construction permit:
(1) Construction of a multiple-dwelling building or a building to be used for the conduct of a business or occupation; provided, however, that permits shall not be required for a building to be used for the conduct of a business for a period of less than 30 days, unless permits would otherwise be required under subsections (a)(2) through (7) of this section;
(2) Construction of any building or structure within 200 feet of a shoreline or wetlands area;
(3) Construction of any water- or flood-related project regardless of the nature or extent of the construction activity;
(4) Dredging or filling of waters, watercourses or wetlands, drilling, dumping, filling, removal of any sand, gravel, soil or minerals, bulkheading, diking, riprapping, or driving of piling;
(5) Road construction, repair, and right-of-way maintenance;
(6) Construction or repair of culverts and drainage ditches;
(7) Clearing, grading, filling, dumping and excavating.
The applicant for any permit shall have the burden of establishing that the application meets the requirements of this code and other applicable law, and that issuance of a permit is otherwise appropriate.
(b) Requirements for Development Permit. In order to obtain a development permit, an applicant must obtain approval of two elements of the proposed project: land use and environmental.
(c) Contents of Application for Development Permit. The applicant shall submit four copies of the application for a development permit to the Land Use Department. The application shall contain the following information:
(1) Name, business address, and telephone number of the applicant;
(2) If applicant is not an individual, names and brief background information concerning other individuals and entities who have a financial interest, employment, contract, or other relationship with the applicant and the project;
(3) Location of proposed project, including map of area;
(4) Brief description of proposed project, including any building and construction that will take place as part of the project, and activities that will be conducted on the property after the development is completed.
The applicant shall provide any additional information required by the Land Use, Environmental, or Fisheries Director.
(d) Contents of Application for Construction Permit. The applicant may apply for a construction permit at the same time s/he applies for a development permit, or may wait until a decision has been made concerning the development permit. In addition to the information required by subsections (c)(1) through (4) of this section, the applicant shall provide detailed building plans and specifications.
(e) Application Fee. The applicant shall pay a nonrefundable application fee for consideration of both the development and the construction permit applications. The fee shall consist of the following:
(1) An administrative fee of $250.00, paid at the time the application is first submitted;
(2) The costs actually incurred by the Tribe for review of building plans and specifications, including, if necessary, the cost of retaining outside consultants to perform that review;
(3) The costs actually incurred by the Tribe for preparation of an environmental impact statement under PTC 15.16.070(b)(2);
(4) The costs actually incurred by the Tribe to retain an individual as Chairperson of the PRC for the purpose of any appeal (see PTC 15.16.040(b));
(5) The costs actually incurred by the Tribe to provide public notice of a project under PTC 15.16.080(a) and notice of a public hearing under PTC 15.16.080(b).
(f) Informal Meeting with Applicant. The Directors of the Land Use, Environmental, and Fisheries Departments, or any of them, may hold an initial informal meeting with the applicant if one or more of the Directors feels that a meeting would be useful or if the applicant requests a meeting. The purposes of an initial informal meeting shall be to allow the applicant to provide the Directors with information about the project, to respond to questions from the Directors, and to allow the Directors to advise the applicant of any additional information that will be needed.
An initial informal meeting shall not replace or be a substitute for any of the steps required by other provisions of this code. The applicant may request an informal meeting with one or more of the Directors. The Director(s) shall comply with such a request unless there is a compelling reason not to hold the meeting.
(g) Notice to Governmental Parties. The Land Use Director shall determine, for each permit application, whether notice to other governments is required under Section (D)(4)(f) of Technical Document No. 4 to the Settlement Agreement. If so, the Land Use Director shall provide a copy of the permit application to the planning department or other appropriate agency(ies) of the governmental party(ies) entitled to notice. [Ord. 220692a (06/22/92) § 5]
15.16.060 Land use review.
This section establishes procedures for review of an application’s land use element. This review may lead to an initial recommendation to issue a certificate of consistency; an initial recommendation to issue a conditional use certificate; or denial of the application for either or both certificates.
An applicant has not gained approval of the land use element of an application unless s/he has obtained either a certificate of consistency or a conditional use certificate.
Approval of either certificate cannot be given until the Land Use Director has considered public input pursuant to PTC 15.16.080. Final approval of the land use element is one of two required approvals (land use and environmental) in order to obtain a development permit.
(a) Certificate of Consistency.
(1) Purpose. An application for a certificate of consistency asks for a recommendation and later a determination that a project is permitted under the Tribe’s existing land use designation for the area in which the project is proposed.
(2) Initial Review – Certificate of Consistency. The Land Use Director shall examine the information provided under PTC 15.16.050(c), request any additional information s/he deems relevant, and, if s/he deems it useful to an accurate determination, meet with the applicant to discuss the proposed project.
(3) Initial Recommendation. If the Land Use Director upon initial review believes that the proposed project is permitted under existing land use standards (see subsection (c) of this section), s/he shall recommend issuance of a certificate of consistency. The recommendation shall not constitute approval, preliminary or otherwise, or in any way create a vested right in the applicant.
(4) Denial of Certificate of Consistency. If the Land Use Director determines that the proposed project is not permitted under existing land use standards (see subsection (c) of this section), s/he shall issue a written determination denying a certificate.
(5) Appeal to PRC – Certificate of Consistency. If the Director issues a denial of a certificate of consistency, the applicant may appeal that decision to the PRC. Conduct of an appeal is governed by PTC 15.16.100.
(6) Appeal to Tribal Court – Certificate of Consistency. If the PRC upholds the Director’s denial of a certificate of consistency, the applicant may appeal that decision to the Tribal Court. Conduct of an appeal is governed by PTC 15.16.110.
(b) Conditional Use Certificate.
(1) Purpose. An application for a conditional use certificate asks for a recommendation and later a determination that a proposed project should be allowed to proceed, notwithstanding its inconsistency with the existing land use designation, subject to such conditions and performance standards as will make the project compatible with other permitted uses in the area. The decision whether or not to grant a conditional use certificate is a discretionary, policy decision left wholly to the judgment of the Tribe.
An applicant may apply for a conditional use certificate whether or not s/he/it has previously applied for a certificate of consistency.
(2) Initial Review. The applicant shall submit to the Land Use Department, in addition to the information required by PTC 15.16.050(c), any information or discussion the applicant deems relevant to consideration of the factors enumerated in subsection (b)(3) of this section.
(3) Initial Recommendation – Conditional Use Certificate. If the Land Use Director upon initial review believes that imposition of conditions and performance standards will make the project compatible with other permitted uses in the area, s/he may make an initial recommendation that a conditional use certificate be granted. In that case, the Director shall specify the conditions and performance standards that are included in the recommendation. The recommendation shall not constitute approval, preliminary or otherwise, or in any way create a vested right in the applicant. The Director shall base her/his determination upon evaluation of the following factors:
(A) The nature of the project’s inconsistency with the area’s land use designation;
(B) The degree of the project’s incompatibility or conflict with permitted and existing uses in the area;
(C) The relative importance of consistency of land uses in the area;
(D) The views and reasonable expectations of neighboring and nearby property owners;
(E) The importance of the proposed activity and the degree to which it accomplishes Tribal goals or provides for needs of Tribal members.
(4) Denial of Conditional Use Certificate. If, after review, the Land Use Director believes that the proposed project should not be permitted under the standards listed in subsection (b)(3) of this section, s/he shall issue a written determination denying a conditional use certificate.
(5) Appeal to PRC – Conditional Use Certificate. If the Director issues a denial of a conditional use certificate, the applicant may appeal that decision to the PRC. Conduct of an appeal is governed by PTC 15.16.100.
(6) Appeal to Tribal Court – Conditional Use Certificate. If the PRC upholds the Director’s denial of a conditional use certificate, the applicant may appeal that decision to the Tribal Court. Conduct of an appeal is governed by PTC 15.16.110.
(c) Land Use Standards. The standards contained in the Tribe’s Land Use Plan shall be used to make determinations under this section. Prior to the adoption of the Tribe’s Land Use Plan, the Director shall in each case determine whether the proposed use is appropriate taking into account the factors listed in subsection (b)(3) of this section. The Director’s decision shall specifically spell out the considerations and factors that were taken into account and the reasons for reaching the decision in light of those matters.
(d) Land Use Consultation Process. When the land use consultation process created by Technical Document No. 7 is invoked by a non-Indian party to the Settlement concerning a proposed Tribal project, the Tribe’s participation shall be handled in the manner provided by the Tribe’s Land Use Consultation Process Ordinance, No. 20070. [Ord. 220692a (06/22/92) § 6]
15.16.070 Environmental review.
This section establishes procedures for review of an application’s environmental element. This review takes place only if an applicant has first obtained, pursuant to PTC 15.16.060, an initial recommendation for a certificate of consistency or a conditional use certificate. This review is based on information submitted in an environmental checklist or, for more substantial projects, an environmental impact statement.
Approval of this element cannot be given until the Environmental Director has considered public input pursuant to PTC 15.16.080. Final approval of the land use element is one of two required approvals (land use and environmental) in order to obtain a development permit.
(a) Environmental Checklist.
(1) Purpose. The environmental checklist provides an overview of the environmental impact of a proposed project. The Director will determine whether an initial recommendation can be made on that basis or whether an environmental impact statement is needed.
(2) Submission of Information. The applicant shall complete the checklist form provided by the Environmental Department, and provide any other information requested by the Environmental Director.
(3) Standards for Initial Review of Impact on the Environment. An initial review of the impact that a proposed project will have on the environment shall take into account the following factors:
(A) Impact on the quantity, quality and habitat of the fish, shellfish and other marine resources of the Tribe, and on other wildlife resources, water quality, and geohydraulic shore and stream processes. The determination made by the Fisheries Director under subsection (a)(4) of this section shall be the primary consideration;
(B) Impact on unique or sensitive characteristics of the geographic or hydrologic area which the proposed activity will affect;
(C) Impact on a species listed as endangered or threatened, or on its habitat, as defined in the Endangered Species Act;
(D) Impact on any cultural, religious or historical resources that are important to the Tribe or its members;
(E) Impact on the health and safety of the Tribe and its members;
(F) Degree to which the development would be consistent with the natural characteristics and ecological systems of the Reservation;
(G) Provision for undisturbed, natural vegetated buffers adjacent to rivers, streams, and wetlands;
(H) Degree to which wastes or refuse from any activity will be recycled;
(I) Degree to which erosion will be controlled or its impact reduced;
(J) Impact of any fill material to be used on the natural flow and quality of surface water or groundwater, or any other effect on an intertidal habitat;
(K) Impact of any clearing and grading activities;
(L) Impact of any sewage disposal or extraction of drinking water on soil stability or on the quality of the groundwater;
(M) Compliance with Tribal environmental laws;
(N) Compliance with federal and, in appropriate cases, state environmental laws.
(4) Fisheries Review. In order to evaluate the standards contained in subsection (a)(3)(A) of this section, the Environmental Director shall arrange for an initial review by the Fisheries Director as spelled out in this subsection.
(A) Submission of Information. The Fisheries Director shall consider the information provided under PTC 15.16.050(c), and may request from the applicant any other information the Director deems necessary, including construction plans and specifications for the project. If requested by the Director, the applicant shall meet with the Director or other Fisheries Division staff to discuss and provide further information about the project.
(B) Initial Review – Fisheries. The Fisheries Director shall conduct an initial review, indicating in writing his/her belief as to whether the proposed project meets the Settlement standard for protection of the fisheries habitat: no net degradation to the fisheries habitat plus appropriate enhancement. If, in the Director’s opinion, it does not, the Director shall explain the reasons for that conclusion, and set forth any steps that could be taken to gain compliance with that standard. The Director may indicate, if appropriate, that in his/her opinion a project will meet the Settlement standard if the applicant agrees to specified conditions, limitations, and modifications to the project.
(C) Fisheries Habitat Protection Standards. The impact of a proposed project on the fisheries habitat shall be evaluated using the substantive standards set forth at pages 34 through 45 of Technical Document No. 4 to the Settlement Agreement.
(5) Initial Recommendation – Checklist. The Environmental Director shall examine the application, the environmental checklist, and any additional information s/he has requested. The Director shall then make an initial recommendation indicating one of the following:
(A) Initial Recommendation of No Significant Impact. If the Director believes that the project will have no significant impact on the environment, s/he shall issue a written initial recommendation so stating. The recommendation shall not constitute approval, preliminary or otherwise, or in any way create a vested right in the applicant.
(B) Initial Recommendation of Mitigated Impact. If the Director believes that the project will have an impact on the environment that can be mitigated by requiring conditions, performance standards, and mitigation measures, s/he shall issue a written initial recommendation so stating, and setting forth the conditions, standards, and measures. The recommendation shall not constitute approval, preliminary or otherwise, or in any way create a vested right in the applicant.
(C) Initial Recommendation of Significant Impact. If the Director believes that the project will have a significant impact on the environment, s/he shall direct that an environmental impact statement be prepared pursuant to subsection (b) of this section.
(b) Environmental Impact Statements.
(1) Purpose. An environmental impact statement is designed to provide a thorough analysis of the impact a proposed project will have on the environment.
(2) Preparation of Environmental Impact Statement. If the Director determines, pursuant to subsection (a) of this section, that an EIS is necessary, the applicant shall either (a) prepare an EIS, at the applicant’s expense, or (b) pay the cost of preparation of an EIS prepared or contracted by the Environmental Department. Ten copies of the EIS shall be written in nontechnical language and shall include at least the following information:
(A) Identifying information including name, address, and telephone of applicant and of the party preparing the EIS, and location of project;
(B) Summary description, purpose, and need for the project;
(C) Description of the environment of the area that will be affected by the project;
(D) List and analysis of each of the environmental impacts and consequences of the project. The discussion should address (a) direct and indirect, short and long-term, and cumulative impacts, and (b) any mitigation measures that are part of the project. The discussion should address issues that will enable the Director to analyze the factors set forth in subsection (a)(3) of this section;
(E) List of alternatives to the projects, including “no action,” and analysis of environmental impacts of each alternative compared to the proposed project;
(F) Any other analysis or information request by the Director.
(3) Director’s Initial Recommendation – EIS. The Environmental Director shall evaluate the information provided in the EIS and, if the Director deems it appropriate, solicit input from other federal, state, and local agencies. The Director shall then make an initial recommendation as to whether the environmental element of the application should be approved. The Director shall base that recommendation on whether the project’s environmental impact is acceptable in light of the project’s benefits and the overall needs and goal of the Tribe.
The Director shall have discretion to recommend that approval should be granted only if the applicant complies with specified conditions, performance standards, and mitigation measures on or modifications to the project. The Director’s recommendation shall be issued in writing. The recommendation shall not constitute approval, preliminary or otherwise, or in any way create a vested right in the applicant.
(c) Fisheries Impact Dispute System. When the dispute resolution process set forth in Section D of Technical Document No. 4 is invoked by a non-Indian party to the Settlement concerning a proposed Tribal project, the Fisheries Division and the project applicant will coordinate the Tribe’s participation in the process.
If otherwise appropriate under Technical Document No. 4, an eligible non-Indian government shall be entitled to invoke the dispute resolution process only if that government notifies the Land Use Director of its desire to invoke the process within 30 days following the date of the Tribe’s notice under PTC 15.16.050(g). [Ord. 220692a (06/22/92) § 7]
15.16.080 Public input.
The public input and review process contained in this section shall be employed for any application that (a) has received an initial recommendation for either a certificate of consistency or a conditional use certificate under PTC 15.16.060, and (b) has completed the environmental review process in PTC 15.16.070.
(a) Public Comment. The Land Use Director shall promptly give notice that the application is subject to public comments by publishing notice in the Morning News Tribune, Tacoma, WA, and the Pierce County Herald, posting it prominently at the Tribal Administration Building, providing it to each department of Tribal government, and mailing it to individuals on the public comment and hearing list under subsection (c) of this section. The applicant shall bear the cost of providing public notice.
Written public comments will be accepted for 15 days after the notice has been published and distributed as provided in this section, unless the Land Use Director sets a later deadline.
(b) Public Hearing. When:
(1) An applicant has received a recommendation that a conditional use certificate be approved; or
(2) An application has been the subject of an EIS; or
(3) An application is deemed by the Land Use Director or Environmental Director to be of substantial public interest; or
(4) The Land Use Director receives, within 15 days following the final publication of the public notice, a request in writing for a public hearing signed by at least 25 Tribal members;
there shall be held a public hearing to obtain Tribal member and public input concerning the application. The Land Use Director shall schedule the meeting so as to allow adequate public notice, and shall give notice in the manner set forth in subsection (a) of this section. The applicant shall bear the cost of providing notice of the public hearing.
The PRC shall adopt procedures for the conduct of public hearings. Those procedures shall, among other things:
(1) Require the applicant to make a presentation summarizing the project and the applicant’s plans for the use of the property;
(2) Allow for input from Tribal members, departments of Tribal governments, and representatives of non-Tribal entities;
(3) Allow the chair of the hearing to place reasonable limitations on the number, length, and content of comments.
(c) Public Comment and Hearing List. Any Tribal member who wishes to receive by mail any or all notices issued under subsections (a) and (b) of this section shall submit his/her name to the Land Use Department for inclusion on a public comment and hearing list, and specify which notices s/he wishes to receive.
(d) Department Review. Promptly following expiration of the deadline for public comments and the conduct of a public hearing, if any, the Land Use, Environmental, and Fisheries Departments shall each review any comments relevant to its area of expertise. If a department director deems it appropriate, s/he shall request a response from the applicant to issues raised by public comments. Although all comments are advisory in nature, the departments shall give serious and thorough consideration to each comment.
(e) Final Department Action on Development Permit Applications. Following the review required by subsection (d) of this section, each department director shall determine, in light of public comments, any response from the applicant, and the record as a whole, whether to make any change in its initial recommendation concerning the permit application. The Land Use and Environmental Directors shall each issue a written determination approving, disapproving or approving with conditions the element of the application addressed by his/her department.
If final approval is given for both elements of the application, the Land Use Director shall issue a development permit to the applicant. The Land Use Director shall specify the approved elements of the project, including any conditions, performance standards, mitigation measures, or other limitations on the project.
If either element is not approved, the permit shall be denied.
(f) Appeal to PRC from Final Departmental Action. Upon final departmental action under subsection (e) of this section, the applicant or any other affected party may appeal to the PRC. Conduct of an appeal is governed by PTC 15.16.100.
(g) Appeal to Tribal Court. Upon a determination by the PRC of an appeal from a final departmental action, any party to the action may appeal the PRC’s decision to the Tribal Court. Conduct of an appeal is governed by PTC 15.16.110. [Ord. 220692a (06/22/92) § 8]
15.16.090 Construction permit.
This section establishes procedures and substantive standards for construction permits to ensure that projects on trust land meet technical standards for safe construction.
(a) Building and Safety Standards. All building and construction shall comply with the provisions of the most current edition of each of the following codes:
(1) Uniform Building Code;
(2) National Electrical Code;
(3) Uniform Fire Code.
The applicant must also demonstrate that satisfactory arrangements have been or will be made for utilities, waste disposal, and other necessary facilities for the project.
(b) Submission of Information. The applicant shall provide to the Land Use Director copies of all construction plans and specifications.
(c) Final Departmental Action – Construction Permit. The Land Use Director shall examine or cause to be examined the information provided, request any additional information s/he deems relevant, and, if s/he deems it useful, meet with the applicant to discuss the proposed project. If the Director determines that the project as designed complies with the requirements of subsection (a) of this section, s/he shall issue a construction permit.
If the Director determines that the project complies with those requirements only if the applicant complies with specified conditions, performance standards, mitigation measures or other modifications, s/he shall issue a construction permit subject to those qualifications.
If the Director determines that the project does not comply with those requirements, s/he shall disapprove and deny the application.
(d) Appeal to Tribal Court – Construction Permit. If a Construction Permit is denied, the applicant may appeal that decision to Tribal Court. Conduct of an appeal is governed by PTC 15.16.110.
(e) Ongoing Compliance. The Land Use Director is authorized periodically to inspect or cause to be inspected premises as and after they are constructed to determine whether they comply with the requirements of subsection (a) of this section. If at any time during or after construction of the premises the Director determines that construction is not in compliance with the requirements of subsection (a) of this section, s/he shall issue a written order directing that all construction activities cease until the applicant has met with the Director and corrected all violations to the satisfaction of the Director. [Ord. 220692a (06/22/92) § 9]
15.16.100 Appeals to permit review commission – General.
(a) Deadline – Procedures. In cases where this code provides for appeal to the Permit Review Commission, the PRC shall have jurisdiction to consider an application only if a written notice of appeal is filed with the Land Use Director no later then 20 days after the date of the written decision from which the appeal is taken. The PRC shall adopt procedures to govern the presentation and consideration of appeals, as well as other relevant topics.
(b) Scope of Review. Unless otherwise indicated, the PRC shall have authority to make a de novo determination of the issue(s) presented by an appeal. [Ord. 220692a (06/22/92) § 10]
15.16.110 Appeals to Tribal Court – General.
(a) Deadline for Appeal. In cases where this code provides for appeal to Tribal Court, the Court shall have jurisdiction to consider an appeal only if a written notice of appeal is filed with the Court and with the Land Use Director no later then 20 days after the date of the written decision from which the appeal is taken.
(b) Procedure. The parties shall submit the following written briefs or summaries of their contentions and arguments, on a schedule set by the Court in each case: opening brief of the appellant, response of the respondent, and, if the appellant chooses, a reply by the appellant. The Court shall determine in each case whether participation by third parties is appropriate.
The Court shall consider each appeal upon submission of those documents and other materials directed by the Court to be filed and, in the discretion of the Court, upon oral argument by the parties or their representatives. Procedures shall otherwise be as provided by the Tribe’s Rules of Appellate Procedure (Chapter 4.16 PTC, Subchapter 5).
(c) Standards of Judicial Review. In any action authorized by this code to review a decision of a department of Tribal government or of the PRC (hereafter “administrative decision”), the party opposing the administrative decision shall have the burden of persuasion. Judicial review shall be on the whole record that was considered by the department or PRC or on that part of the record cited by a party. The Court shall give due deference to technical expertise of departments construing and enforcing this code.
Unless otherwise provided in this code, the Court shall uphold an administrative decision unless the decision is:
(1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with substantive or procedural requirements of law;
(2) In excess of the decision-maker’s authority;
(3) Unsupported by substantial evidence on the record taken as a whole.
Nothing in this code shall be construed as a waiver of the Tribe’s sovereign immunity from any relief other than an order of the Court requiring compliance with the provisions of this code. [Ord. 220692a (06/22/92) § 11]
15.16.120 Enforcement – Sanctions.
(a) Applicability. The enforcement procedures and sanctions contained in this section are available and applicable to remedy any of the following violations of Tribal law:
(1) Construction and development activities not in conformance with plans and specifications approved as part of a permit under this code or in any conditions or requirements imposed by the permit.
(2) Activities subject to this code conducted without having obtained a required permit(s).
(3) Activities or structures that violate any of the substantive standards contained or adopted by reference in this code.
(b) Administrative Orders of Violations. In the case of any violation under subsection (a) of this section, the director of the department with jurisdiction over the subject matter of the violation (hereafter, “responsible department”) may issue an administrative order of violation (hereafter, “AOV”) to the applicant or owner of the property on which the violation occurs. The AOV may:
(1) Direct the applicant to terminate construction and development or other activities that constitute the violation until the applicant has received written authorization from the Director confirming that the violation has been corrected;
(2) Direct the applicant to take corrective action to remedy the violation and its impact; and
(3) Impose a continuing civil penalty, in a specified amount per day, until the violation is corrected.
(c) Law Enforcement Assistance. In the case of any violation under subsection (a) of this section, if the application does not cease construction and development activities or correct the violation voluntarily, the Director may obtain the assistance of the Tribe’s Law Enforcement Division to prevent further construction and development.
(d) Judicial Enforcement Action. In the case of any violation under subsection (a) of this section, if the owner does not correct the violation voluntarily, the Director of a responsible department may file an original action in Tribal Court seeking:
(1) An order enjoining further use of the property for any purpose, including use for normal business or other purposes, until the owner has received written authorization from the Director confirming that the violation has been corrected; and
(2) An order for collection of amounts that are due and owing under a civil penalty imposed by virtue of an AOV pursuant to subsection (b)(3) of this section. Unless an applicant or owner has timely appealed from an AOV, pursuant to subsection (e) of this section, the Court shall not have jurisdiction to consider any challenge to the validity of the past due amounts. The applicant or owner may, however, in a proceeding under this subsection (d)(2), contest the validity of continuing penalties after the date of the hearing. The Court’s jurisdiction to consider such a challenge shall be limited to determination of whether activity on the property is in violation of subsection (a) of this section and whether the applicant or owner has corrected the violation.
(e) Appeal from Administrative Order of Violation. An applicant or owner of property as to which an AOV is issued may appeal the AOV to Tribal Court. In case of appeal, the Tribal Court shall make a de novo determination of whether the activity violates subsection (a) of this section. [Ord. 220692a (06/22/92) § 12]