Chapter 16.08
APPEALS
Sections:
16.08.005 Purpose and applicability.
16.08.010 Consolidated appeals.
16.08.012 Appeals—Where filed.
16.08.018 Appeal of the administrative official’s decision.
16.08.020 Open record appeals subject to review by hearing examiner.
16.08.025 Appeal of the hearing examiner’s decision.
16.08.030 Closed record appeal subject to review by the city council.
16.08.060 Actions not appealable.
16.08.005 Purpose and applicability.
The purpose of this chapter is to establish the procedures for appealing decisions made under the provisions of Title 14, Title 15, Title 16, and Chapter 6.88 of the Yakima Municipal Code. The procedures may also be used for any other matter where there is an appeal opportunity and the procedures of such appeal are not specifically outlined elsewhere in this code. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.010 Consolidated appeals.
A. All appeals of project permit application decisions, other than an appeal of SEPA determination of significance, shall be considered together in a consolidated appeal and shall not be separated from the substantive matters of the application.
B. Appeals of determinations of significance under SEPA, Chapter 6.88 YMC, shall proceed as provided in that chapter in an open record hearing. The purpose of this early and separate appeal hearing is to resolve the need for an environmental impact statement (EIS) and to permit administrative and judicial review prior to preparation of an EIS. (Ord. 2018-047 § 1 (Exh. C) (part), 2018: Ord. 98-66 § 1 (part), 1998).
16.08.012 Appeals—Where filed.
All appeals authorized under the provisions of Title 14, Title 15, Title 16 and Chapter 6.88 of the Yakima Municipal Code, except judicial appeals, shall be filed with the division. The division shall forward the appeal to the appropriate administrative official, schedule an appeal hearing, provide the required notification, and maintain complete records of all appeal hearings unless otherwise provided for in this chapter. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.014 Burden of proof.
The appellant shall bear the burden to demonstrate at least one of the following:
1. The decision-maker (either the administrative official or hearing examiner) exceeded his or her jurisdiction or authority;
2. The decision-maker failed to follow applicable procedures in reaching the decision;
3. The decision-maker committed an error of law; and/or
4. The findings, conclusions or decision prepared by the decision-maker are not supported by substantial evidence. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.015 Definitions.
Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
“Administrative official” means the duly appointed city of Yakima director of community development.
“Agency” means any municipal corporation, state or federal government or subdivision thereof.
“Aggrieved person” or “person aggrieved” means a person who is directly affected by the approval, denial or conditioning of a permit, or a person who is directly affected by a decision of the administrative official, hearing examiner or city council.
“Appellant” means the person or party appealing a decision made by the administrative official or the hearing examiner.
“Applicant” means a person submitting an application for any permit or approval required by the Yakima Municipal Code Title 14 or Title 15, and who is the owner of the subject property or the authorized agent of the owner.
“Department” or “division” means the city of Yakima department of community development.
“Legislative body” means the Yakima city council.
“Officer” means the director of community development or his or her designee.
“Party of record” means: (1) the applicant; (2) the property tax payer for the subject property as identified by the records available from the Yakima County assessor’s office; (3) the legal owner of the subject property; (4) any person who testified at the open record public hearing on the application; and/or (5) any person who submitted written comments during administrative review (within the required time frame) or has submitted written comments concerning the application at the open record public hearing (excluding persons who have only signed petitions or form letters).
“Person” means any corporation, company, association, society, firm, partnership, or business, as well as an individual, a state and all political subdivisions of a state, any agency or instrumentality thereof.
“Respondent” means the party against whom an appeal is taken or any party of record responding to an appeal.
“Subject property” means the real property that is at issue in the original application. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.018 Appeal of the administrative official’s decision.
A. Appeal to the Hearing Examiner. Except as otherwise provided, any aggrieved person, party of record, or agency directly affected by any decision of the administrative official or designee may appeal that decision to the hearing examiner.
B. Appeal. All appeals shall be filed within fourteen days following the mailing of the final decision by the administrative official or designee. Appeals shall be filed with the division. If a final decision does not require mailing, the appeal shall be filed within fourteen days following the issuance of the final decision.
C. Appeals Shall Be in Writing. All appeals shall be in writing on forms provided by the department and shall be accompanied by the required fees; provided, that appeal fees should not be charged to the legislative body or a division of the city. All appeals shall specifically cite the action being appealed, the error(s) or issue(s) to be considered, and explain why the action is not consistent with the provisions of the Yakima urban area comprehensive plan, this title, or other provisions of law. Appeals shall also include a sworn statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.
D. Notice. The division shall:
1. Set a reasonable time and place for hearing of the appeal; and
2. Provide a notice of appeal and public hearing to the official whose decision is being appealed and parties entitled to notice of the decision, including posting of property and publishing the notice at least ten days prior to the hearing.
E. Transfer of Record. The officer from whom the appeal is being taken shall forthwith transmit to the hearing examiner all the records pertaining to the decision being appealed, together with such additional written report as he or she deems pertinent.
F. Staff Report. A staff report shall be prepared and transmitted to the hearing examiner, along with the record in accordance with this chapter.
G. Action by the Hearing Examiner. Testimony given during the appeal shall be limited to those points cited in the appeal application. The hearing examiner shall render a written decision on the appeal within ten working days from the conclusion of the hearing, unless a longer period is mutually agreed to by the parties to the appeal and the examiner. The hearing examiner may affirm or reverse, wholly or in part, or modify the order, requirement, decision, or determination, and to that end shall have all the powers of the officer from whom the appeal was taken. The division shall send copies of the hearing examiner’s decision to the appellant, the parties of record, and the official whose decision was appealed, not later than three working days following the issuance of the final decision.
H. Decisions by the Hearing Examiner Shall Be Final Unless Appealed. Except as otherwise provided, all appeal decisions by the hearing examiner shall be final and conclusive on all parties unless appealed to the legislative body pursuant to this chapter. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.020 Open record appeals subject to review by hearing examiner.
A. The hearing examiner shall hear appeals de novo. An applicant or representative shall be present at the hearing. In the event that the applicant or his or her representative is not present at the time of the hearing, the hearing shall be canceled and rescheduled by the planning division with appropriate public notice given in accordance with this title.
B. Notice of an appeal hearing shall be mailed to parties entitled to notice of the decision, including posting of property and published notice.
C. A staff report shall be prepared, file transmitted to the examiner, and hearing conducted in the manner described in the appropriate ordinance subject of the appeal and Washington State law. The hearing examiner shall have ten working days to issue a decision on the appeal. All decisions of the hearing examiner are subject to appeal to the city council.
D. The applicant or property owner shall remove all land use action signs from the subject property within thirty days from the date of issuance of the final decision or action on the underlying land use application. Any signage which is in good condition shall be returned to the city of Yakima planning division. (Ord. 2018-047 § 1 (Exh. C) (part), 2018: Ord. 2016-030 § 15, 2016: Ord. 98-66 § 1 (part), 1998).
16.08.025 Appeal of the hearing examiner’s decision.
A. Appeals. The decision of the hearing examiner shall be final and conclusive unless appealed to the legislative body by a person aggrieved, a party of record, or by any agency of the city affected by the hearing examiner’s decision in the following manner:
1. The appealing party must file a complete written notice of appeal with the division upon forms prescribed by the department and accompanied by the appeal fee within fourteen days from the date of mailing of the hearing examiner’s final decision.
2. The notice of appeal shall specify the claimed error(s) and issue(s) that the legislative body is asked to consider on appeal and shall specifically state all grounds for such appeal. Issues or grounds of appeal that are not so identified need not be considered by the legislative body.
3. The notice of appeal shall include a sworn statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.
4. The city council shall hear appeals of all decisions of the hearing examiner during a public meeting or a limited hearing for receipt of oral legal argument, unless precluded by law.
B. Appeal Procedures—Notice of Appeal.
1. Notice of Filed Appeal. The planning division shall notify the parties of record and appellant that an appeal has been filed and that copies of the notice of appeal and any written argument or memorandum of authorities accompanying the notice of appeal may be obtained from the division.
2. Content of Notice of Filed Appeal. The notice to parties of record and appellant shall contain the following statements:
All parties named in the appeal of the hearing examiner’s decision wishing to respond to the appeal may submit a written argument or memorandum to the legislative body within thirty days from the date that the notice is mailed; and any written argument or memorandum shall not include the presentation of new evidence and shall be based only upon the facts presented to the examiner.
C. Submittal of Written Argument or Memorandum.
1. The named parties to the hearing examiner’s decision may file with the division a written argument or memorandum of authority within thirty days of the date of mailing of the notice of a filed appeal.
2. Rebuttal to Written Argument and Memorandum. Upon completion of the thirty-day submittal period for submission of any written argument and memorandum, the parties named in the appeal of the hearing examiner’s decision, at their expense, may obtain copies of any such submissions, and shall be provided a fifteen-day rebuttal period which starts on the thirty-first day from the date of mailing of the notice of the filed appeal.
3. Extension of Time for Written Argument and Memoranda.
a. No written argument or memorandum of authorities may be thereafter submitted except by the legislative body’s approval of a written request for an extension for cause. Requests for extension must be made no later than the last date the memoranda would otherwise be due.
b. The legislative body may grant further extensions on a finding by the legislative body of the existence of extenuating circumstances which warrant such extension(s).
c. Upon granting an extension, a notice of extension shall be given to all parties of record, and the notice shall include the statement that:
Written arguments and memoranda shall not include the presentation of any new evidence and shall be based only on the facts presented to the examiner.
D. Transfer of Record to Legislative Body. When a timely appeal has been filed and the deadline for receipt of written memoranda and arguments and all extensions have passed, the division shall deliver to the legislative body a copy of the examiner’s decision, the evidence presented to the examiner, a recording of the hearing before the examiner, and any written argument or memorandum of authority which the division has received.
E. An 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 fees are not timely paid; and/or
5. 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 fifteen calendar days from the filing date of the appeal. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.030 Closed record appeal subject to review by the city council.
A. Setting the Hearing Date and Notice of the Appeal.
1. Hearing Date. When the record and the examiner’s decisions have been transmitted to the legislative body, the clerk of the legislative body shall schedule a date for a closed record appeal by the legislative body at which time the legislative body shall consider the appeal. The date of the appeal should not be later than twenty days following the date the legislative body receives the information from the division, unless a different date is agreed upon by the city and the parties to the appeal.
2. Public Notice. The clerk of the legislative body shall mail written notice to the appellant, all parties named in the appeal of the hearing examiner’s decision, all parties of record and the examiner to apprise them of the meeting date before the legislative body.
B. Hearing Must Be Open to the Public. The city council shall hear appeals of all decisions by the hearing examiner during a public meeting or a limited hearing for receipt of oral legal argument.
C. A complete appeal application must be submitted prior to the scheduling of the council meeting or limited hearing.
D. The closed record appeal shall be on the record before the city council, and no new evidence shall be presented. The city council may, however, choose to do a site visit as part of its review. The record shall include all materials received in evidence at any previous stage of the review, audio/visual tapes of the prior hearing(s), the final order being appealed, and argument by the parties at the examiner’s hearing.
E. The appellants and any respondents to the appeal shall have the opportunity to present oral and written argument. Oral argument shall be confined to the prior established hearing examiner record and to any alleged errors in the decision. Participation in the closed record hearing is limited to the city, including all staff, the applicant for the proposal subject to appeal, and those persons or entities which have timely and properly filed complete written appeal statements (either as appellants or respondents).
F. Following the closed record appeal hearing, the city council may affirm the decision of the examiner, remand the matter back to the hearing examiner with appropriate directions, or may reverse or modify the hearing examiner decision. If the council determines there is no error in the examiner’s decision, it may adopt the findings of the examiner and accept the decision of the hearing examiner. If the city council renders a decision different from the decision of the examiner, the city council shall adopt amended findings and conclusions accordingly. (Ord. 2018-047 § 1 (Exh. C) (part), 2018: Ord. 98-66 § 1 (part), 1998).
16.08.040 Judicial appeals.
The city’s final decision shall be final and conclusive unless appealed by a party of record with standing to file a land use petition in Yakima County superior court. Such petition must be filed within twenty-one days of issuance of the decision, and the proceeding shall follow the requirements as provided in Chapter 36.70C RCW. (Ord. 2018-047 § 1 (Exh. C) (part), 2018: Ord. 98-66 § 1 (part), 1998).
16.08.050 Effect of appeals.
Filing of an appeal stays all actions of the administrative official or designee on pending applications for development permits associated with the action or decision being appealed. The filing of an appeal shall not stay the effectiveness or effective date of any enforcement action or decision for violation of this title including cancellations and revocations of permits or approvals. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).
16.08.060 Actions not appealable.
A. Generally. Only final actions or decisions of an administrative official or other official may be appealed under this chapter.
B. Procedural Rulings. Interim procedural or other rulings during or as part of a review or decision-making process by an administrative or other official under this title are not appealable except as part of the final decision or action.
C. Enforcement Actions. No enforcement action for violation of Title 15 Yakima Municipal Code is appealable except as expressly provided in YMC Chapter 15.25. No decision or action for issuance of a warning citation or criminal citation by the administrative official or other proper legal authority is appealable under this chapter, nor shall any appeal under this chapter be taken of any law enforcement action commenced by any party in a court of law. (Ord. 2018-047 § 1 (Exh. C) (part), 2018).