21.10.120 Type III-A and III-B processes | Bellingham Municipal Code

21.10.120 Type III-A and III-B processes.

A. Preapplication Conference. A preapplication conference is required for certain projects as provided in BMC 21.10.170.

B. Preapplication Neighborhood Meeting. A preapplication neighborhood meeting as described in BMC 21.10.180 shall be conducted for co-housing, incentive program for innovative affordable homeownership projects, conditional use, nonconforming building and nonconforming use decisions and Type III-B decisions. Upon request by the applicant, the planning director may waive this requirement if the project does not abut or have significant impacts on residential areas; does not, in the discretion of the planning director, involve significant land use issues; and consists of one of the following:

1. Applications for minor amendments;

2. Proposals associated with a single-family residence; or

3. Industrial or commercial projects.

C. Application. An application shall be reviewed to determine whether it is complete under the procedures of BMC 21.10.190.

D. Notice of Application. The procedures in BMC 21.10.200 apply to a Type III-A or Type III-B process.

1. Notice of application and hearing for a subdivision preliminary plat adjacent to or within one mile of the municipal boundaries of a city or town, or which contemplates the use of any city or town utilities, shall be given to the appropriate city or town authorities.

2. Notice of application and hearing for a subdivision preliminary plat adjoining the municipal boundaries of the city shall be given to the appropriate county officials.

3. Notice of application and hearing for a subdivision preliminary plat located adjacent to the right-of-way of a state highway or within two miles of the boundary of a state or municipal airport shall be given to the Secretary of Transportation.

F. Minimum Comment Period. The procedures in BMC 21.10.210 apply to a Type III-A or III-B process.

G. Environmental Review. When a threshold decision is required under Chapter 16.20 BMC, the procedures in BMC 21.10.220 apply to a Type III-A or III-B process.

1. The public hearing shall be scheduled for a date no sooner than 15 days after the notice of application and no sooner than 15 days after the issuance of a SEPA determination of nonsignificance. Staff recommendations and the SEPA decision shall not be issued until after the close of the minimum public comment period; provided, that the optional DNS process in BMC 16.20.070 and 16.20.080 may be used.

2. Notice of the public hearing for the application shall be published in a newspaper of general circulation at least 10 days prior to the hearing date.

3. Notice of the hearing shall be mailed at least 10 days prior to the hearing in the same manner as provided in BMC 21.10.200(D).

4. The notices shall contain a brief description and the general location of the proposal, the time, date and location of the hearing and information about the availability of the staff report.

1. The hearing examiner shall conduct an open record public hearing on the proposal. Any person may participate in the hearing by submitting written comments to the planning and community development department prior to the hearing or by submitting written comments or making oral comments at the hearing.

2. The planning and community development department shall transmit to the hearing examiner a copy of the department file on the application including all written comments received prior to the hearing. The file shall also include the SEPA threshold decision and records regarding public notice of the application.

3. The hearing examiner shall create a complete record of the public hearing including all exhibits introduced at the hearing and an electronic sound recording of each hearing.

1. The hearing examiner shall approve a project or approve with conditions if the applicant has demonstrated that the proposal complies with the applicable decision criteria in the Bellingham Municipal Code. The applicant carries the burden of proof and must demonstrate that a preponderance of the evidence supports the conclusion that the application merits approval or approval with conditions. In all other cases, the hearing examiner shall deny the application.

2. Following the close of the record, the hearing examiner shall distribute a written report supporting the decision. The report shall contain:

a. The decision of the hearing examiner;

b. Any conditions included as part of the decision; and

c. Findings of fact upon which the decision, including any conditions, was based and the conclusions derived from those facts.

K. Notice of Decision. The procedures in BMC 21.10.230 apply to a Type III-A or III-B process.

1. Any person who participated in the hearing may file a written motion for reconsideration of the hearing examiner’s decision.

2. Reconsideration of a hearing examiner decision may be granted by the hearing examiner on a showing of one or more of the following:

a. Irregularity in the proceedings by which the moving party was prevented from having a fair hearing;

b. Newly discovered evidence of a material nature which could not, with reasonable diligence, have been produced at hearing;

c. Error in the computation or any monetary element of the decision;

d. Clear mistake as to a material fact; or

e. Clear error as to the law, which should be corrected in the interests of justice.

3. Motions for reconsideration must be filed and served on other parties within 10 days of the date of the hearing examiner’s decision. The filing of a motion for reconsideration shall not stop or alter the running of the period provided to appeal the hearing examiner’s decision. A motion for reconsideration that is not scheduled for consideration or otherwise acted upon by the examiner within 10 days of filing of the motion shall be deemed denied.

M. Appeal of Type III-A Decision. A Type III-A decision by the hearing examiner, with the exception of a shoreline conditional use, may be appealed to superior court by filing a land use petition which meets the requirements set forth in Chapter 36.70C RCW. The petition must be filed and served upon all necessary parties as set forth in state law and within the 21-day time period as set forth in RCW 36.70C.040. Requirements for fully exhausting city administrative appeal opportunities must be fulfilled.

N. Appeal of a Shoreline Conditional Use. A shoreline conditional use decision must also be approved by the Department of Ecology. A decision of the Department of Ecology may be appealed to the State Shoreline Hearings Board. Any appeal shall be filed within 21 days of the date of filing the Department of Ecology decision with the city, as set forth in RCW 90.58.180 and defined in RCW 90.58.140(6).

O. Appeal of a Type III-B Decision to the City Council. A Type III-B decision may be appealed to the city council under the procedures in Chapter 1.26 BMC and as follows:

1. Who May Appeal. Any aggrieved party or city department.

2. Form of Appeal. A person appealing the decision must submit a completed appeal form to the planning and community development department which sets forth:

a. The action or decision appealed, including the date thereof;

b. Facts demonstrating that the person is adversely affected by the decision;

c. A concise statement identifying each alleged error and the manner in which the decision fails to satisfy the applicable decision criteria;

d. The specific relief requested; and

e. Any other information reasonably necessary to make a decision on the appeal.

3. Time to Appeal. The written appeal and the appeal fee, if any, must be received by the planning and community development department office as specified on the appeal form no later than 5:00 p.m. on the fourteenth day following the date the notice of decision was issued.

4. Notice of Appeal. A city council closed record hearing date shall be set. The city shall provide written notice of the hearing to the appellant, applicant, hearing examiner, director and city attorney. Notice shall be mailed or sent no less than 10 days prior to the appeal hearing.

5. City Council Closed Record Hearing. The city council shall conduct a closed record hearing on the appeal consistent with the procedures in Chapter 1.26 BMC. The appellant, the applicant, and the city shall be designated parties to the appeal.

6. City Council Decision on Appeal. The city council shall prepare findings and conclusions and issue a written decision to grant, grant with modifications, or deny the appeal within 60 days from the date the original appeal period closed. The city council may take any action provided in BMC 1.26.020.

P. Appeal of City Council Decision. A final decision by the city council on appeal may be appealed to superior court by filing a land use petition which meets the requirements set forth in Chapter 36.70C RCW. The petition must be filed and served upon all necessary parties as set forth in state law and within the 21-day time period as set forth in RCW 36.70C.040. Requirements for fully exhausting city administrative appeal opportunities must be fulfilled. [Ord. 2020-03-005 § 5; Ord. 2008-08-079; Ord. 2004-09-065].