Chapter 17.90
APPEALS
Sections:
17.90.020 Effective date of final decisions.
17.90.040 Time for and contents of an appeal to the hearing examiner.
17.90.050 Appeal review process for hearing examiner.
17.90.060 Hearing examiner appeal hearing procedures.
17.90.070 Time for and contents of an appeal to the city council.
17.90.080 Appeal review process for city council.
17.90.090 City council appeal hearing procedures.
17.90.010 General.
A. Appeals and Jurisdiction. All final decisions shall be appealed to the authority set forth in Table 17.90-1. Any appeals of a decision, order, or determination of the building official shall be pursuant to Table 17.90-1 and not pursuant to the model codes adopted in SVMC 24.40.020. Specific procedures followed by the planning commission, hearing examiner, and city council are set forth in Appendix B.
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Land Use and Development Decisions |
Appealed To |
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Type I and II decisions |
Hearing examiner (SVMC 17.90.040); further appeal to superior court (Chapter 36.70C RCW) |
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Building permits |
Hearing examiner (SVMC 17.90.040); further appeal to superior court (Chapter 36.70C RCW) |
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Type III decisions except zoning map amendments |
Superior court (Chapter 36.70C RCW) |
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Type III zoning map amendments |
City council (SVMC 17.90.070); further appeal to superior court (Chapter 36.70C RCW) |
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Type IV decisions |
Superior court |
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Matters subject to review pursuant to RCW 36.70A.020 |
Growth Management Hearings Board |
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Shoreline substantial development permits, shoreline conditional use permits, and shoreline variances |
Shorelines Hearings Board (RCW 90.58.180) |
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Compliance and enforcement decisions (generally Chapter 17.100 SVMC) |
Hearing examiner (SVMC 17.90.040); further appeal to superior court (Chapter 36.70C RCW) |
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Order of dwelling, building, structure, or premises unfit for human habitation or other use (Chapter 17.105 SVMC) |
Hearing examiner (SVMC 17.105.050) pursuant to the appeal procedures set forth in Chapter 17.105 SVMC; further appeal to superior court (SVMC 17.105.120) |
Impact fee appeals pursuant to Chapter 22.100 SVMC shall be heard by the hearing examiner. Such appeals shall be subject to the procedures herein for Type I permit appeals, except as otherwise provided for by Chapter 22.100 SVMC. Pursuant to Chapter 22.100 SVMC, impact fee appeals shall be heard concurrently with appeals of the underlying permit as applicable. Impact fee appeals shall be subject to all requirements of Chapter 22.100 SVMC, including any necessary preappeal requirements.
(Ord. 22-012 § 3, 2022; Ord. 20-026 § 4, 2020; Ord. 18-002 § 3, 2018; Ord. 16-018 § 6 (Att. B), 2016).
17.90.020 Effective date of final decisions.
A. Type I final decisions and building permits become effective on the day after the appeal period expires unless an appeal is filed, in which case the procedures of Chapter 17.90 SVMC shall apply. The applicant and owner have the right to waive their appeal rights, and in such cases where a waiver is submitted in writing to the department, the Type I decision is considered final on the day it is signed by the city manager or designee or on the day the waiver is approved, whichever is later, unless a party other than the applicant owner has standing to appeal.
B. Type II, III, and IV final decisions become effective on the day after the appeal period expires, unless an appeal is filed, in which case the procedures of Chapter 17.90 SVMC shall apply. (Ord. 22-012 § 3, 2022; Ord. 17-004 § 3, 2017; Ord. 16-018 § 6 (Att. B), 2016).
17.90.030 Standing.
A. Type I Decision. The following parties have standing to appeal a Type I decision:
1. The applicant and the owner of the property to whom the decision is directed; and
2. Adjacent property owners.
B. Type II Decision. The following parties have standing to appeal a Type II decision:
1. The applicant and owner of the property to whom the decision is directed;
2. Any party for whom written notice is required; and
3. Any other party who participates in the decision process through the submittal of substantive written comments.
C. Type III Decision. The following parties have standing to appeal a Type III decision:
1. The applicant and the owner of the property to whom the decision is directed;
2. Any other person aggrieved or adversely affected by the decision, or who would be aggrieved or adversely affected by a reversal or modification of the decision. A person is aggrieved or adversely affected within the meaning of these rules only when all of the following conditions are present:
a. The decision has prejudiced or is likely to prejudice that person;
b. That person’s asserted interests are among those that the hearing examiner was required to consider when the decision was made;
c. A reversal or modification of the decision in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the decision; and
d. The appellant has exhausted his or her administrative remedies by being a party of record to the decision below. A “party of record” means a person who appeared at the public hearing held by the hearing examiner, or who submitted substantive written comments in the matter prior to the closing of the record for the hearing.
3. The city manager or designee.
D. Type IV Decisions. Type IV decisions are legislative decisions and may be appealed to the Growth Management Hearings Board or a court of competent jurisdiction as allowed by law.
E. Compliance and Enforcement Decisions. The following parties have standing to appeal a compliance and enforcement decision:
1. The party or owner of property subject to an appeal; and
2. The complainant if a written request is made to be notified of the City’s response to the complaint filed by the complainant. (Ord. 22-012 § 3, 2022; Ord. 17-004 § 3, 2017; Ord. 16-018 § 6 (Att. B), 2016).
17.90.040 Time for and contents of an appeal to the hearing examiner.
A. Appeal to Hearing Examiner. Any appeal to the hearing examiner shall be received no later than 14 calendar days after written notice of the decision is mailed. To be considered timely, the appeal must be filed no later than 4:00 p.m. on the day the appeal period expires. Receipt of a complete appeal submittal shall stay the original decision until a final decision on the appeal has been reached. The appeal shall include:
1. The case number designated by the City and the name of the applicant;
2. The name and signature of each petitioner or their authorized representative and a statement showing that each petitioner has standing to file the appeal under Chapter 17.90 SVMC. If multiple parties file a single petition for review, the petition shall designate one party as the contact representative;
3. The specific decision and specific portions of the decision or determination being appealed, and the specific reasons why each aspect is in error as a matter of fact or law;
4. Evidence that the specific issues raised on appeal were raised during the period in which the record was open;
5. The appeal fee as identified in Chapter 17.110 SVMC, Fees and Penalties. The fee may be refunded, either wholly or partially, only if the appellant requests withdrawal of the appeal in writing at least 14 calendar days before the scheduled appeal hearing date;
6. A person responsible for a code compliance/enforcement violation who successfully appeals the City’s administrative determination of a violation shall be refunded the appeal fee within 45 calendar days after the appeal decision.
B. Any issue not identified or raised in the appeal application shall be considered untimely and shall be deemed waived. (Ord. 22-012 § 3, 2022; Ord. 16-018 § 6 (Att. B), 2016).
17.90.050 Appeal review process for hearing examiner.
A. Appeal Review Process.
1. All complete appeals submitted and allowed pursuant to these rules shall be scheduled for review at a public hearing before the hearing examiner within 90 calendar days from the date of submission. Further extensions are permitted upon mutual agreement of the appellant, the applicant, and the department.
2. Notice of the appeal hearing shall be mailed to the applicant and the appellant, if different than the applicant. (Ord. 22-012 § 3, 2022; Ord. 16-018 § 6 (Att. B), 2016).
17.90.055 Burden of proof.
A. For appeals of permit applications, unless otherwise provided by state law, (1) the original administrative decision is presumptively correct, and (2) the appellant shall have the burden of proof to show that the original administrative decision was issued in error of law or that the findings, conclusions, or decision are not supported by substantial evidence.
B. For appeals of threshold determinations under SEPA and Chapter 21.20 SVMC, unless otherwise provided by law, (1) the original administrative decision is presumptively correct, (2) the appellant shall have the burden of proof, and (3) must show that the original administrative decision was clearly erroneous.
C. For appeals of any enforcement decision, unless otherwise provided by law, (1) the determination by City staff issuing the determination shall be accorded substantial weight, and (2) the appellant shall have the burden of proof to show that the original administrative decision was issued in error of law or that the findings, conclusions, or decision are not supported by substantial evidence. (Ord. 22-012 § 3, 2022).
17.90.060 Hearing examiner appeal hearing procedures.
A. Hearing Procedures. All appeals to the hearing examiner shall be conducted pursuant to Appendix B. Appeals are limited to consideration of the issues on appeal, and are not public forums for general public comment. Accordingly, they are not open to general public testimony or comment. Appeals shall be open to attendance and viewing by the general public.
B. Scheduling of Hearings.
1. The department, in coordination with the hearing examiner, shall prepare an official agenda indicating the dates and times that matters will be heard. The official agenda shall comply with all time limits set forth in RCW 36.70B.110.
2. When practical, minor applications, such as a variance or matters that take less time, shall be heard at the beginning of the day’s agenda.
3. The hearing examiner may consolidate applications involving the same or related properties for hearing.
C. Notice of Hearing – Effect of Notice.
1. Each public notice required for the hearing of an application shall conform to applicable statutory and ordinance requirements. The notice should contain a statement that the hearing will be conducted in the manner set forth in Appendix B.
2. Failure of a person entitled to receive notice of a hearing to actually receive said notice does not affect the jurisdiction of the hearing examiner to hear the application when scheduled and render a decision, if the notice was properly published, mailed, and/or posted as required by law.
3. A person is deemed to have received notice if the person appears at the hearing, or submits written comments on the merits of the application, and the person fails to object to the lack of notice promptly after the person obtains actual knowledge of the hearing date.
4. If required notice is not given and actual notice is not received, the hearing examiner may reschedule the hearing or keep the record open on the matter to receive additional evidence.
D. Staff Reports on Appeals.
1. The department may coordinate and assemble the comments and recommendations of other City departments and commenting agencies, and may make a written staff report to the hearing examiner on appeals.
2. If a staff report is prepared, it shall be filed with the office of the hearing examiner and mailed by first class mail or provided to the appellant and other parties at least seven calendar days prior to the date of the scheduled public hearing. At such time, the department shall also make the report available for public inspection. Upon request, the department shall provide or mail a copy of the report to any requesting person for the cost of reproduction and mailing.
3. If the staff report is not timely filed or furnished, the hearing examiner may at his/her discretion continue the hearing, considering the prejudice to any party and the circumstances of the case.
4. The hearing examiner may make recommendations to the department on the format and content of staff reports submitted to the hearing examiner.
5. Nothing herein shall prevent the hearing examiner from requiring briefing from the parties on the merits of their respective cases. Nothing herein shall prevent any party from submitting written briefing on the merits of its case; provided, that such briefing shall be provided within the time periods identified by the hearing examiner.
E. Site Inspections.
1. The hearing examiner may make site inspections, which may occur at any time before the hearing examiner renders a final decision. The hearing examiner need not give notice of the intention to make an inspection, unless the site inspection will require the hearing examiner to enter the property, in which case the hearing examiner shall notify all parties that a site inspection will occur on the premises as part of the decision process and the hearing examiner will not engage in substantive discussions with the owner/applicant.
2. The inspection and the information obtained from it shall not be construed as new evidence or evidence outside the record. If an inspection reveals new and unanticipated information, the hearing examiner may, upon notice to all parties of record, request a written response to such information or reopen the hearing and/or record to consider the information.
F. The hearing examiner’s appeal decision shall be in writing, be based on the whole record, and include, but not be limited to, the following:
1. Background. The nature and background of the proceeding, including identification of party representatives participating in the hearing, prehearing determinations, and other similar information.
2. Findings. The facts that the hearing examiner finds relevant, credible, and requisite to the decision, based on the record of the proceedings.
3. Conclusions. Legal and factual conclusions based upon specific provisions of law and the findings of fact.
4. Decision. The outcome of the appeal (affirm/uphold, modify, or deny/reverse). (Ord. 22-012 § 3, 2022; Ord. 16-018 § 6 (Att. B), 2016).
17.90.070 Time for and contents of an appeal to the city council.
All appeals to the city council shall be closed-record appeals and shall follow the procedures and conduct as set forth below:
A. Appeals of the hearing examiner’s decision to the city council must be:
1. Filed with the city clerk within 14 calendar days from the date the final decision of the hearing examiner was mailed;
2. Accompanied by the appeal fee identified by Chapter 17.110 SVMC, Fees and Penalties;
3. Accompanied by the separate transcript/record deposit fee identified by Chapter 17.110 SVMC, Fees and Penalties; and
4. Submitted on a form obtained from the city clerk.
B. The appeal form submitted by the appellant shall contain the following information:
1. The file number and a copy of the decision;
2. The name and mailing address of the appellant; the name and mailing address of the appellant’s attorney, if any; and the name of the applicant, if different than the appellant;
3. Facts demonstrating that the appellant has standing to appeal;
4. A separate and concise statement of each error alleged to have been committed;
5. A separate and concise statement of facts upon which the appellant relies to sustain the statement of error; and
6. A request for relief, specifying the type and extent of relief requested.
C. Upon receipt of the written appeal form and payment of the appeal fee, the city clerk shall forward a copy of the appeal and the transcript/record deposit fee to the hearing examiner.
D. The appeal shall be dismissed by the city council if:
1. It is filed by a person without standing to appeal;
2. The city council does not have jurisdiction to hear the appeal;
3. It is not timely filed;
4. The appeal fee or the transcript/record deposit fee was not timely paid;
5. The appellant failed to timely pay the costs incurred by the hearing examiner in preparing the verbatim transcript and certified record, after being billed for such costs; or
6. It is not filed in accordance with the procedures set forth in these rules.
All motions to dismiss a defective appeal shall be filed within 15 calendar days from the filing date of the appeal, except for a dismissal under SVMC 17.90.070(D)(5). The city council may dismiss an appeal under SVMC 17.90.070(D)(5) upon receiving written notification from the hearing examiner that the appellant failed to timely pay the costs incurred by the hearing examiner for the appeal after being billed for such costs.
E. The hearing examiner shall have 30 calendar days from the filing date of the appeal to prepare a verbatim transcript of the hearing before the hearing examiner and a certified copy of the documents in the record, and to bill the appellant for the costs incurred. The city council may authorize a longer time, at the hearing examiner’s request, for unusually large records or transcripts.
1. If the hearing examiner, the appellant, and the applicant (if different than the appellant), agree, or upon order of the city council, the verbatim transcript and/or record may be shortened or summarized to avoid reproduction or transcription of portions of the record that are duplicative or irrelevant to the issues raised by the appeal.
2. Upon completion of the transcript and record, the hearing examiner shall bill the appellant for all costs incurred by the hearing examiner in preparing the verbatim transcript and certified record. The appellant shall pay the balance above and beyond the deposit fee within seven calendar days from the date the bill was mailed or provided to the appellant.
3. Upon the appellant’s payment of the bill for the cost of the transcript and record, the hearing examiner shall, by the next business day, deliver a copy of the appeal, verbatim transcript, and certified record to the city clerk. The hearing examiner shall also provide to the city clerk a list of the names and mailing addresses of the applicant and the parties of record to the hearing before the hearing examiner.
4. The city clerk shall furnish copies of the transcript and record to the applicant, if different than the appellant, all members of the city council, and the city attorney. The hearing examiner, upon request, will furnish copies of the transcript and record to the appellant, the applicant (if different than the appellant), and other entities that may request one at the cost of reproduction.
5. If the city council dismisses the appeal on procedural grounds, the appellant shall reimburse the hearing examiner for the balance of the costs incurred by the hearing examiner in preparing the transcript and record as of the date of the dismissal, if any. (Ord. 22-012 § 3, 2022; Ord. 16-018 § 6 (Att. B), 2016).
17.90.080 Appeal review process for city council.
The city council, at its next regular meeting following receipt of the transcript and record from the hearing examiner, shall schedule a closed-record hearing on the appeal.
A. The city council shall schedule the appeal hearing no sooner than 30 calendar days from the date the transcript and record were received from the hearing examiner.
B. The city council may approve a later hearing date upon agreement of the applicant.
C. The appellant, or a party of record in opposition to the appeal, may provide input as to the hearing date only in person at the meeting, or by submitting a letter to the city clerk prior to the meeting.
D. The city clerk shall mail notice of the time, place, and date of the hearing to the appellant, the applicant (if different than the appellant), and all parties of record to the hearing before the hearing examiner within five calendar days from the date the appeal hearing was scheduled.
E. Closed-record appeals before the city council shall be concluded within 60 calendar days from the date the transcript and record are received by the city clerk, unless the applicant agrees in writing to a longer period. (Ord. 22-012 § 3, 2022; Ord. 16-018 § 6 (Att. B), 2016).
17.90.090 City council appeal hearing procedures.
All appeals to the city council shall be conducted in the manner set forth in Appendix C. (Ord. 22-012 § 3, 2022; Ord. 16-018 § 6 (Att. B), 2016).