Chapter 21.10
PROCEDURES AND ADMINISTRATION

Sections:

21.10.010    Purpose and scope.

21.10.020    Definitions.

21.10.030    Administration.

21.10.040    Types of land use decisions.

21.10.050    Concurrent review of multiple land use permits.

21.10.060    Optional consolidated permit process.

21.10.070    Exemptions.

21.10.080    Time frames for review.

21.10.090    Summary of process steps by review type.

21.10.100    Type I process – Minor administrative decisions.

21.10.110    Type II process – Administrative decisions.

21.10.120    Type III-A and III-B processes.

21.10.130    Type IV process – Final plat.

21.10.140    Type V process – City council quasi-judicial decisions.

21.10.150    Type VI process – City council legislative decisions.

21.10.160    Type VII – Historic place certificate of alteration.

21.10.170    Preapplication conference.

21.10.180    Preapplication neighborhood meeting.

21.10.190    Application.

21.10.200    Notice of application.

21.10.210    Minimum comment period.

21.10.220    Environmental review.

21.10.230    Notice of decision.

21.10.240    Effect of decision.

21.10.250    Procedures for appeal to the hearing examiner.

21.10.260    Vesting.

21.10.270    Interpretation.

21.10.010 Purpose and scope.

This title establishes standard procedures for land use and development permit decisions made by the city of Bellingham. The procedures are designed to promote timely and informed public participation, eliminate redundancy in the application, permit review, and appeal processes, minimize delay and expense, and result in development approvals that further city goals as set forth in the comprehensive plan. They are also intended to be consistent with the provisions of Chapter 36.70B RCW. These procedures provide for a consolidated land use permit process and integrate the environmental review process with the procedures for review of land use decisions. [Ord. 2004-09-065].

21.10.020 Definitions.

“Administrative appeal” means an appeal to a city body or officer, such as the hearing examiner or city council.

“City” means the city of Bellingham.

“Closed record appeal” means an administrative appeal on the record to a local government body or officer, including the legislative body, following an open record hearing on a project permit application when the appeal is on the record with no or limited new evidence or information allowed to be submitted and only appeal argument allowed.

“Director” means director of planning and community development department.

“Open record hearing” means a hearing, conducted by a single hearing body or officer authorized by the local government to conduct such hearings, that creates the local government’s record through testimony and submission of evidence and information, under procedures prescribed by the local government by ordinance or resolution. An open record hearing may be held prior to a local government’s decision on a project permit to be known as an “open record predecision hearing.” An open record hearing may be held on an appeal, to be known as an “open record appeal hearing,” if no open record predecision hearing has been held on the project permit.

“Project permit” means any land use or environmental permit or license required from a local government for a project action, including but not limited to building permits, subdivisions, binding site plans, planned unit developments, conditional uses, shoreline substantial development permits, site plan review, permits or approvals required by critical area ordinances, site-specific rezones authorized by a comprehensive plan or subarea plan, but excluding the adoption or amendment of a comprehensive plan, subarea plan, or development regulations except as otherwise specifically included in this subsection.

“Public meeting” means an informal meeting, hearing, workshop, or other public gathering of people to obtain comments from the public or other agencies on a proposed project permit prior to the city’s decision. A public meeting does not include an open record hearing. The proceedings at a public meeting may be recorded and a report or recommendation may be included in the local government’s project permit application file. [Ord. 2004-09-065].

21.10.030 Administration.

The provisions of this title supersede all other procedural requirements that may exist in other sections of the Bellingham Municipal Code. When interpreting and applying the standards of this code, its provisions shall be the minimum requirements. If a process type is not specified for a project permit or land use decision, the director shall determine the process that shall apply. [Ord. 2004-09-065].

21.10.040 Types of land use decisions.

A. Land use decisions are classified into seven review process types based on who makes the decision, the amount of discretion exercised by the decision maker and the amount and type of public input sought.

B. Type I. A Type I review process is an administrative review and decision by the director. It is exempt from notice requirements. If a Type I decision is not categorically exempt from SEPA and the SEPA review has not been completed with a prior permit, the Type II process shall be used. Appeals of Type I decisions are decided by the hearing examiner unless the rules for a specific permit or decision specify that no administrative appeal is available. The following are Type I decisions when the application does not require a SEPA threshold decision:

1. Billboard relocation permit;

2. Clearing permit;

3. Design review for projects that are not required to use a Type II process;

4. Grading permit;

5. Exempt home occupation;

6. Final short plat;

7. Land use approval for building permits, occupancy approvals, demolition permits and sign permits;

8. Interpretation of development regulations;

9. Lot line adjustment;

10. Nonconforming use status determination;

11. Overheight fence;

12. Parking waiver or joint parking;

13. Shoreline statement of exemption;

14. Preliminary short plat of one to four lots; except cluster subdivisions and applications that include a request to round up the next higher number of lots when dividing the combined area of two or more lots of record by the allowed density results in a fractional lot between one-half and three-fourths;

15. Site area exception (BMC 20.30.040(B)(1)(d));

16. Specific binding site plan;

17. Temporary use;

18. Use approvals for permitted uses;

19. Vision clearance waiver;

20. Critical area and minor critical area permits and other director decisions issued under Chapter 16.55 BMC that do not require a variance and are not a Type II process;

21. Wireless communication facility that does not require either a planned development approval or conditional use permit; and

22. Certificates of alteration under BMC 17.90.060(C)(2)(a).

23. All other decisions that specify use of the Type I process.

C. Type II. A Type II review process is an administrative review and decision by the director. Public notice is required. Appeals of Type II decisions are decided by the hearing examiner. The following are Type II decisions:

1. Accessory dwelling unit;

2. Design review for projects that:

a. Require a SEPA threshold decision; or

b. Include construction of a new building; or

c. Include an exterior nonresidential addition to an existing building; or

d. Include an exterior addition of one or more residential units;

3. General binding site plan;

4. Grading permits requiring a SEPA threshold decision;

5. Home occupation permit;

6. Institutional site plan;

7. Land use approval for building, demolition and sign permits for projects requiring a SEPA threshold decision if the SEPA review was not previously completed;

8. Land use approval for public facility construction permits for streets, stormwater facilities, sewer and/or water facilities requiring a SEPA threshold decision if the SEPA review was not previously completed;

9. Planned development;

10. Shoreline substantial development permit or variance;

11. Preliminary short plats consisting of five to nine lots that are not using cluster subdivision provisions; and cluster short plats of one to four lots without a density bonus (unless the director requires Process III-A) but excluding any short plats rounding up the number of lots from a fraction of less than three-fourths when dividing the combined area of two or more lots of record by the required minimum lot size;

12. Critical area permit requiring a SEPA threshold decision;

13. Infill housing projects under Chapter 20.28 BMC; and

14. Type I decisions that require a SEPA threshold decision and all other decisions specifying a Type II process.

D. Type III-A. A Type III-A review process is a quasi-judicial review and decision made by the hearing examiner that has no administrative appeal, with the exception that a shoreline conditional use decision may be appealed to the State Shoreline Hearings Board. The following are Type III-A decisions:

1. Co-housing;

2. Conditional use;

3. Nonconforming building reconstruction when over 50 percent destroyed;

4. Nonconforming use expansion, reconstruction when over 50 percent destroyed or change in use;

5. Shoreline conditional use;

6. Preliminary short plat that is not a Type III-B decision and is rounding up the number of lots from one-half but less than three-fourths when dividing the combined area of two or more lots of record by the allowed density;

7. Variance as provided in BMC 18.48.010 for a short plat, lot line adjustment, binding site plan or preliminary plat that is not being reviewed under Process Type III-B;

8. Variance from the land use development code and/or Chapter 16.80 BMC, Lake Whatcom Reservoir Regulatory Provisions;

9. Critical area variance;

10. Cluster short plats of one to four lots without a density bonus if the director requires Process III-A; and

11. All other decisions specifying a Type III-A process.

E. Type III-B. A Type III-B review process is a quasi-judicial review and decision made by the hearing examiner that may be appealed to the city council. The following are Type III-B decisions:

1. Preliminary plats, plat alterations and plat vacations, including any variances;

2. Short plats consisting of one to four cluster lots with a density bonus or five to nine cluster lots, including any variances; and

3. All other decisions specifying a Type III-B process.

F. Type IV. A Type IV review process is a city council quasi-judicial decision on a final plat, a final amended plat or final vacated plat. There is no opportunity for administrative appeal.

G. Type V-A. A Type V-A review process is a quasi-judicial decision made by the city council after recommendation by the planning commission. The following are Type V-A decisions:

1. Quasi-judicial rezones as described in BMC 20.19.020(A)(2); and

2. Institutional master plans and amendments that are consistent with the comprehensive plan.

H. Type V-B. A Type V-B review process is a quasi-judicial decision made by the historic preservation commission regarding a designation of a property on the city of Bellingham’s register of historic places under Chapter 17.90 BMC.

I. Type VI. A Type VI review process is a legislative decision made by the city council after review and recommendation by the planning commission. The following are Type VI decisions:

1. Comprehensive plan and neighborhood plan amendments;

2. Development regulation amendments;

3. Institutional master plans and amendments that require a concurrent amendment to the comprehensive plan;

4. Planned action adoption as authorized by Chapter 16.20 BMC;

5. Legislative rezones as described in BMC 20.19.020(A)(1);

6. Historic district designations as described in BMC 17.90.050; and

7. Establishment of annual comprehensive plan amendment docket.

J. Type VII. A Type VII review process is a quasi-judicial decision by the historic preservation commission on a certificate of alteration for a property listed on the city of Bellingham’s register of historic places. An appeal of a Type VII decision is decided by the hearing examiner. [Ord. 2016-02-005 § 35; Ord. 2009-08-047; Ord. 2009-08-051; Ord. 2006-06-060; Ord. 2005-12-094; Ord. 2005-11-092; Ord. 2005-08-066; Ord. 2004-12-088; Ord. 2004-12-088; Ord. 2004-09-065].

21.10.050 Concurrent review of multiple land use permits.

A. All Type II applications for a project, excluding land use approval for construction permits (building, grading, clearing and street and utility construction), shall be processed concurrently unless the director approves separate processing. An application for a shoreline permit which requires a shoreline conditional use permit or shoreline variance shall be submitted and processed concurrently.

B. A single report shall be provided for all Type II applications included in the project review. The report shall include all recommendations and decisions as of the date of the report, including any mitigation required or proposed through a SEPA mitigated determination of nonsignificance or through an environmental impact statement. The report may be the permit. [Ord. 2004-09-065].

21.10.060 Optional consolidated permit process.

Applicants for a project involving more than one project permit from Type I, II, III and/or VII may request to have the review and decision consolidated into one process. Consolidated Type I, II and III permits shall be reviewed under the process required for the permit with the highest process type number. If any permit requires a review by a board or commission, that body shall conduct a public meeting and provide a recommendation to the decision maker. If the time frames for permit review differ among consolidated permits, the applicant must agree to the longest period. [Ord. 2004-09-065].

21.10.070 Exemptions.

A. Process Type VI decisions are city council legislative decisions exempt from the procedural provisions of Chapter 36.70B RCW.

B. Multifamily residential tax exemption decisions under Chapter 17.82 BMC and historic preservation special valuation decisions under Chapter 17.90 BMC are not project permits and are exempt from the procedural provisions of Chapter 36.70B RCW.

C. As authorized by RCW 36.70B.140(1), the following actions are exempt from the requirements of RCW 36.70B.060 through 36.70B.080 and 36.70B.110 through 36.70B.130:

1. Bellingham register of historic places (landmark) designations (Type V);

2. Street vacations;

3. Temporary right-of-way use permits;

4. Street tree permits;

5. Sidewalk cafe approvals;

6. Sidewalk vendor cart approvals; and

7. Final plats (Type IV).

D. As authorized by RCW 36.70B.140(2), the following actions are exempt from the requirements of RCW 36.70B.060 and 36.70B.110 through 36.70B.130 when categorically exempt from SEPA environmental review under Chapter 16.20 BMC or for which environmental review has been completed in connection with other project permits:

1. Building and construction permits (including but not limited to public facilities construction permits, sign permits, clearing permits and grading permits); and

2. Process Type I decisions.

E. Other sections of this chapter exempt specific applications from some of the provisions authorized by RCW 36.70B.140. For example, Type V-A decisions are exempt from the optional consolidated permit process contained in BMC 21.10.060 and are exempt from the time frames established under BMC 21.10.080(A) when they are remanded to the planning commission from the city council. [Ord. 2005-12-094; Ord. 2004-12-088; Ord. 2004-09-065].

21.10.080 Time frames for review.

A. RCW 36.70B.070 and 36.70B.080 require that permit processing time frames be established. Decisions on Type I, II, III and VII applications shall be made within 120 days from the date of a determination that the application is complete unless a shorter time is required by city ordinance or state statute. A decision on a Type V-A application shall be made within 180 days. No time frames are established for Type V-B or VI applications. Exceptions to these time frames are:

1. Substantial project revisions made by an applicant, in which case the time frame will be calculated from the time the city determines the revised application to be complete.

2. A mutual agreement by the applicant and director to an extension of time.

3. Applications that require an amendment to the comprehensive plan or a development regulation.

4. Applications for a project requiring an approval for siting of an essential public facility as provided in RCW 36.70A.200.

5. Applications for which the city makes written findings that a specified amount of additional time is needed for processing of specific complete project permit applications or project types (RCW 36.70B.080(1)).

6. Type V-A applications that are remanded to the planning commission from the city council.

B. The time limit does not include:

1. Any period of time during which the applicant has been requested by the city to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the city notifies the applicant of the need for additional information until the earlier of the date the city determines whether the additional information satisfies the request for information or 14 days after the date the information has been provided to the city. If the city determines that the information submitted by the applicant is insufficient, it shall notify the applicant of the deficiencies and the procedures under BMC 21.10.190(B) shall apply as if a new request for studies had been made.

2. The time required to prepare and issue a draft and final environmental impact statement (EIS) in accordance with the State Environmental Policy Act.

3. Any period for administrative appeals of project permits, if an open record appeal hearing or a closed record appeal, or both, are allowed. The time period for consideration and decision on appeals shall not exceed:

a. Ninety days for an open record appeal hearing; and

b. Sixty days for a closed record appeal.

C. Preliminary Plats. Pursuant to RCW 58.17.140, preliminary plats of any proposed subdivision and dedication shall be approved, disapproved, or returned to the applicant for modification or correction within 90 days from the date of filing thereof unless the applicant consents to an extension of such time period or the 90-day limitation is extended to include up to 21 days as specified under RCW 58.17.095(3). The 90-day period shall not include the time spent preparing and circulating an environmental impact statement by the local governmental agency.

D. Final Plats (Type IV) and Short Plats. Pursuant to RCW 58.17.140, final plats and short plats shall be approved, disapproved, or returned to the applicant within 30 days from the date of filing a complete application, unless the applicant consents to an extension of such time period. [Ord. 2004-12-088; Ord. 2004-09-065].

21.10.090 Summary of process steps by review type.

A. BMC 21.10.100 through 21.10.250 describe the process steps listed in Table 21.10.090 as set forth in Exhibit C attached to the ordinance codified in this chapter and included in this section.

 

Table 21.10.090 – Summary of Process Steps by Review Type 

 

Director Ministerial Decision

Director Decisions

Hearing Examiner Decisions

Hearing Examiner Decisions

City Council Final Plat

City Council or Historic Preservation Commission Quasi-Judicial Decisions

City Council Legislative

Certificate of Alteration for a Property Listed on the City of Bellingham’s Register of Historic Places

 

Type I

Type II

Type III-A

Type III-B

Type IV

Type V-A

Type V-B

Type VI

Type VII

Preapplication conference required

See BMC 21.10.170

See BMC 21.10.170

See BMC 21.10.170

See BMC 21.10.170

No

Yes

No

See BMC 21.10.170

No

Preapplication neighborhood meeting

No

Required for planned developments, institutional site plans, general binding site plans and design review

Required for co-housing, conditional use and nonconforming use or building decisions

Yes

No

Yes

No

Required for site-specific neighborhood plan or comprehensive plan amendments, including those with rezones, and for institutional master plans/amendments

No

Preapplication design guidance meeting

Optional for some permits; see BMC 21.10.100(B) and (D)

Required or optional for some permits; see BMC 21.10.110(C) and (E)

No

No

No

No

No

No

No

Determination of complete application process

Yes

Yes

Yes

Yes

No

Yes

No

No

Yes

Notice of application

No

Yes

Yes

Yes

No

Yes

No

No

Yes

Recommendation by board, commission or hearing examiner

Optional for some permits; see BMC 21.10.100(B) and (D)

Required or optional for some permits; see BMC 21.10.110(C) and (E)

No

No

No

Yes, planning commission

No

Yes, planning commission

No

Open record predecision hearing

No

No

Yes, hearing examiner

Yes, hearing examiner

No

Yes, planning commission

Yes, historic preservation commission

Yes, planning commission

Yes, historic preservation commission

Decision

Director

Director; shoreline variances must also be approved by Department of Ecology

Hearing examiner; shoreline conditional use must also be approved by Department of Ecology

Hearing examiner

Council

Council at closed record hearing

Historic preservation commission

Council

Historic preservation commission

Notice of decision

No

Yes

Yes

Yes

No

Yes

No

No

Yes

Reconsideration

No

No

Yes

Yes

No

No

No

No

No

Appeal to hearing examiner

Yes, unless otherwise specified by code

Yes, except shoreline permit and shoreline variance appeals are heard by the Shoreline Hearings Board

No

No

No

No

No

No

Yes, closed record

Closed record appeal to city council

No

No

No

Yes

No

No

No

No

No

Judicial appeal

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

Yes

[Ord. 2015-01-001 § 7 (Exh. C); Ord. 2004-09-065].

21.10.100 Type I process – Minor administrative decisions.

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

B. Design Review – Preapplication Design Guidance Meeting. A preapplication design guidance meeting with the design review board or historic preservation commission may be optional or required for certain projects as provided in BMC 20.25.020 and 20.25.030. Notice of the meeting shall be published on the city’s website at least 10 days prior to the meeting date.

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

D. Design Review – Design Response Meeting. A design response meeting with the design review board or historic preservation commission may be optional or required for certain projects as provided in BMC 20.25.020 and 20.25.030. Notice of the meeting shall be published on the city’s website at least 10 days prior to the meeting date.

E. Decision. A written record of the decision shall be prepared. The record may be in the form of a staff report, letter, permit, or other written document and shall indicate whether the application has been approved, approved with conditions or denied. With the exception of critical area permits, a decision shall be effective on the date the written decision is issued and is presumed valid unless overturned by an appeal decision. Critical area permits shall be effective after the close of the appeal period, or if an appeal is filed, until the withdrawal of, or final decision on an administrative appeal. Project activity not requiring a critical area permit that is commenced prior to the end of any appeal period, or withdrawal of, or final decision on, an appeal, may continue at the sole risk of the applicant.

F. Shoreline Statement of Exemption. Whenever a development is determined by the city to be exempt from the requirement to obtain a shoreline substantial development permit and a letter of exemption is required under the provisions of WAC 173-27-050, the city shall issue a letter of exemption in compliance with WAC 173-27-050.

G. Appeal of Type I Decisions. Type I decisions may be appealed to the hearing examiner unless otherwise specified by state statutes or city ordinance. The hearing examiner shall conduct an open record hearing. [Ord. 2015-01-001 § 8; Ord. 2012-08-041 § 14; Ord. 2008-08-079; Ord. 2006-06-060; Ord. 2005-12-094; Ord. 2005-11-092; Ord. 2004-09-065].

21.10.110 Type II process – Administrative decisions.

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:

1. Planned developments;

2. Institutional site plans;

3. General binding site plans; and

4. Design review for projects in residential zones involving over 1,000 square feet of new gross floor area and for projects in other zones involving over 5,000 square feet of new gross floor area.

Upon request of the applicant, the planning director may waive this requirement for minor amendments and for industrial and commercial projects which do not abut or have significant impacts on residential areas; provided, that such amendments and industrial and commercial projects do not, in the discretion of the planning director, involve significant land use issues.

C. Design Review Preapplication Design Guidance Meeting. A preapplication design guidance meeting with the design review board or historic preservation commission may be optional or required for certain projects as provided in BMC 20.25.020 and 20.25.030. Notice of the meeting shall be mailed as provided in BMC 21.10.200(D) and shall also be published on the city’s website and in a newspaper of general circulation at least 10 days prior to the meeting date.

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

E. Public Meeting.

1. Design Review Board and Historic Preservation Commission. A design response meeting with the design review board or historic preservation commission may be optional or required for certain projects as provided in BMC 20.25.020 and 20.25.030. For projects reviewed by the board and commission, the following procedures shall apply:

a. The application shall be scheduled for review by the applicable board or commission at a public meeting within 60 days after a complete design review application has been submitted, provided, the timeline for scheduling a meeting with the commission may be extended for projects requiring a certificate of alteration under Chapter 17.90 BMC to allow consolidation of the reviews.

b. Notice of the meeting shall be mailed as provided in BMC 21.10.200(D) and shall also be published on the city’s website and in a newspaper of general circulation at least 10 days prior to the meeting date.

c. The board or commission shall transmit its recommendations to the planning director following the public meeting.

2. Planning Commission and Planning Commission Shoreline Committee. For projects requiring review by the planning commission or planning commission shoreline committee, the following procedures shall apply:

a. The planning commission shoreline committee shall hold a public meeting and make recommendations to the director on shoreline permits.

b. An optional public meeting and review by the planning commission shall be available for planned development, general binding site plan and institutional site plan applications as follows:

i. Staff shall send a notice of optional meeting together with the project plan to members of the commission. The notice shall be sent no later than the date of the notice of application.

ii. The planning director or the commission chair may require a meeting of the commission for review and recommendation on the application if they believe the proposal is likely to raise substantial planning issues or is a matter of public interest. A decision to conduct a public meeting must be made within 10 days from the mailing of the notice of optional meeting.

iii. If a public meeting is required, the proposal shall be scheduled for a meeting date. Notice of the meeting shall be mailed at least 10 days prior to the hearing in the same manner as provided in BMC 21.10.200(D) and shall also be published in a newspaper of general circulation at least 10 days prior to the meeting date.

iv. The commission shall transmit its recommendations to the planning director following the public meeting.

F. Notice of Application. The procedures in BMC 21.10.200 apply to a Type II process.

G. Minimum Comment Period. The procedures in BMC 21.10.210 apply to a Type II process.

H. Environmental Review. When a threshold decision is required under Chapter 16.20 BMC, the procedures in BMC 21.10.220 apply to a Type II process.

I. Decision. The city shall not make a decision or recommendation on a permit application until the expiration of the minimum comment period stated in the notice of application. A written record of the decision shall be prepared. The record may be in the form of a staff report, letter, permit, or other written document and shall indicate whether the application has been approved, approved with conditions or denied.

J. Notice of Decision. The procedures in BMC 21.10.230 apply to a Type II process.

K. Appeal of Type II Decision. A Type II decision may be appealed to the hearing examiner with the exception of a shoreline permit and/or shoreline variance. The hearing examiner shall conduct an open record appeal.

L. Appeal of a Shoreline Permit or Shoreline Variance.

1. A shoreline permit decision may be appealed to the State Shoreline Hearings Board. Any appeal shall be filed within 21 days of the date of filing the city’s decision with the Department of Ecology as provided in RCW 90.58.180 and defined in RCW 90.58.140(6).

2. A shoreline variance must also be approved by the Department of Ecology. A shoreline variance decision by 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). [Ord. 2015-01-001 § 9; Ord. 2012-08-041 § 15; Ord. 2008-08-079; Ord. 2006-06-060; Ord. 2005-12-094; Ord. 2004-09-065].

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, 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.

E. Additional Notification Requirements for Preliminary Plats.

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.

H. Notice of Public Hearing.

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.

I. Hearing.

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.

J. Hearing Examiner Decision.

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.

L. Reconsideration.

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. 2008-08-079; Ord. 2004-09-065].

21.10.130 Type IV process – Final plat.

A. Application. The applicant shall submit an application for final plat approval in conformance with the submittal requirements established by the director.

B. Review and Recommendation.

1. An application shall be sent for review and approval to all departments and agencies whose approval is required under Chapter 18.20 BMC.

2. If the director finds that the plat meets all applicable requirements, the director shall forward the final plat and the director’s recommendation to the city council.

C. Decision.

1. The city council shall review the plat to determine whether the plat conforms to the terms of preliminary approval, the requirements of applicable state laws and all other applicable city ordinances. If the plat conforms to these requirements, the city council shall approve the final plat. If the council does not approve the final plat, the applicant shall be provided a written notice of the decision and the conditions for compliance.

2. An application for a final plat shall be approved, disapproved or returned to the applicant within the time frame required under BMC 21.10.080(D).

D. Appeal of Type IV Decision. A final decision 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. [Ord. 2004-09-065].

21.10.140 Type V process – City council quasi-judicial decisions.

A. Type V-A Process.

1. Preapplication Procedures. A preapplication conference is required for Type V-A applications. A preapplication neighborhood meeting shall be conducted under the procedures of BMC 21.10.180 for Type V-A applications.

2. Application. A complete application shall consist of the submittal requirements established by the director and stated on the application forms. An application shall be reviewed to determine whether it is complete under the procedures of BMC 21.10.190.

a. Who May Apply. The property owner or authorized agent of the property owner, city council, planning commission or planning director may apply.

b. For an institutional master plan adoption or amendment, a property owner may apply for amendments or master plan adoption that apply only to the property they own. Any other amendment proposals must be initiated by the city council planning commission or planning director.

3. Notice of Application. The procedures in BMC 21.10.210 apply to a Type V-A application.

4. Minimum Comment Period. The procedures in BMC 21.10.210 apply to a Type V-A application.

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

6. Notice of Planning Commission Public Hearing. The planning commission shall conduct an open record public hearing on the proposal. Notice of the hearing shall be provided as follows:

a. Publishing. The city shall publish notice of the hearing in a newspaper of general circulation at least 15 days and not more than 30 days prior to the hearing date.

b. Mailed Notice. The city shall mail a hearing notice no less than 15 days prior to the date of the hearing. Mailed notice shall be provided in the same manner as provided in BMC 21.10.200(D).

c. Posted Notice. The city shall post one or more hearing notice signs on the site or in a location immediately adjacent to the site that provides visibility from adjacent streets. The signs shall be posted at least 15 days prior to the hearing. The director shall establish standards for size, color, layout, materials, number, placement, maintenance and removal.

7. Planning Commission Hearing. The planning commission 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. All comments received by the department prior to the hearing shall be transmitted to the planning commission no later than the date of the public hearing.

8. Planning Commission Recommendation. The planning commission shall review the proposal based on the criteria listed in the applicable city code and provide a written recommendation to the city council containing the following:

a. Findings of fact and conclusions of law; and

b. Recommendation.

9. Notice of City Council Hearing. Notice of the city council closed record hearing shall be provided in the same manner as for the planning commission hearing.

10. City Council Decision. The city council shall consider the proposal at a closed record hearing. The city council shall not accept new information on the application, but shall consider the complete record before the planning commission and the recommendation of the planning commission. The city council may:

a. Approve the application;

b. Approve the application with modifications;

c. Remand the application to the planning commission for additional review limited to specific issues identified by the council; or

d. Deny the application.

11. Notice of Decision. The procedures in BMC 21.10.230 apply to a Type V-A process.

12. Appeal of Type V-A Decision. A Type V-A decision 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.

B. Type V-B Process.

1. Nomination of Historic Property Designations. The property owner, historic preservation commission or the city council may nominate and make application to designate a property on the city of Bellingham’s register of historic places under the provisions of Chapter 17.90 BMC. If nominated by the historic preservation commission or city council, the application shall not be processed unless the written consent of the property owner is obtained.

2. Notice of Historic Preservation Commission Public Hearing.

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

b. 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).

c. The notice 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.

3. Historic Preservation Commission Public Hearing.

a. The historic preservation commission 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.

b. The planning and community development department shall provide the historic preservation commission with a staff report on the application and transmit all written comments received prior to the hearing.

c. The historic preservation commission shall create a complete record of the public hearing including all exhibits introduced at the hearing and an electronic sound recording of the hearing.

4. Historic Preservation Commission Decision. The historic preservation commission shall take action on the application at a public hearing, and shall approve, approve with modifications or deny the application for designation of the property on the city of Bellingham’s register of historic places based on the record and the applicable criteria in Chapter 17.90 BMC. The commission’s decision shall be in writing and shall include findings of fact upon which the decision, including any conditions, was based and the conclusions derived from those facts. The decision shall also identify the historic features of the property.

5. Record of Designation. Within two weeks following the decision by the historic preservation commission, the property owner shall sign a covenant declaring the property a designated historic property pursuant to and subject to the provisions of Chapter 17.90 BMC, and record it with the Whatcom County auditor. The covenant shall be the form as provided by the director and shall be recorded at the expense of the property owner.

6. Appeal of the Historic Preservation Commission Decision. A final decision by the historic preservation commission may be appealed to the 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. [Ord. 2005-12-094; Ord. 2005-08-066; Ord. 2004-12-088; Ord. 2004-09-065].

21.10.150 Type VI process – City council legislative decisions.

A. Preapplication Procedures. A preapplication conference is required for certain proposals as provided in BMC 21.10.170. A preapplication neighborhood meeting shall be conducted under the procedures of BMC 21.10.180 for site-specific comprehensive plan amendments, site-specific neighborhood plan amendments and institutional master plans or rezones that require a Type VI process.

B. Application. A complete application shall consist of the submittal requirements established by the director and stated on the application forms.

1. Who May Apply for Those Type VI Actions That Include a Request to Docket an Amendment to the Comprehensive Plan and/or a Neighborhood Plan. Comprehensive plan and/or neighborhood plan amendments can only be placed on the annual review docket by the city council. These amendments are divided into two categories: site-specific and non-site-specific.

a. Non-Site-Specific Amendments. Any person may submit an application to have a non-site-specific amendment placed on the review docket to be considered in the subsequent year. All docket requests should be submitted no later than April 1st of each year.

b. Site-Specific Amendments. Only a property owner or authorized agent of the property owner may submit an application to have a site-specific amendment to the comprehensive plan or a neighborhood plan, a request for a site-specific comprehensive/neighborhood plan amendment and concurrent rezone, or a request for a Type VI institutional master plan or IMP amendment placed on the review docket for consideration in the subsequent year. All docket requests should be submitted no later than April 1st of each year.

c. All Amendments. Both site-specific and non-site-specific amendments may be added to the annual review docket by the city council at any time during the year, provided the council finds that the proposal meets the docketing criteria in BMC 20.20.030.

C. Environmental Review. When environmental review is required, the procedures of Chapter 16.20 BMC shall apply. The determination of nonsignificance or environmental impact statement shall be provided to the planning commission with the staff report.

D. Notice of Planning Commission Public Hearing. The planning commission shall conduct an open record public hearing on the proposal. Notice of the hearing shall be provided as follows:

1. Publishing. The city shall publish notice of the hearing in a newspaper of general circulation at least 30 days prior to the hearing date.

2. Mailed Notice. Notice of the public hearing shall be mailed at least 30 days prior to the hearing date. For site-specific comprehensive plan amendments, site-specific neighborhood plan amendments, site-specific rezones or institutional master plan adoption or amendments, the city shall mail a hearing notice in the same manner as provided in BMC 21.10.200(D). For all other proposals, the hearing notice shall be mailed to the list of mayor’s neighborhood advisory commission representatives and neighborhood associations registered with the planning and community development department.

3. Posted Notice. For site-specific comprehensive plan amendments, site-specific neighborhood plan amendments, site-specific rezones, or institutional master plan adoption or amendments, the city shall post one or more hearing notice signs on the site or in a location immediately adjacent to the site that provides visibility from adjacent streets. The signs shall be posted at least 30 days prior to the hearing. The director shall establish standards for size, color, layout, materials, number, placement, maintenance and removal.

4. For non-site-specific amendments to the comprehensive plan, neighborhood plan or development regulations, the director shall provide public notice and public participation opportunities appropriate for the proposal and consistent with RCW 36.70A.035 and subsections (D)(1) and (2) of this section.

E. Planning Commission Hearing. The planning commission 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. All comments received by the department prior to the hearing shall be transmitted to the planning commission no later than the date of the public hearing.

F. Planning Commission Recommendation. The planning commission shall review the proposal based on the criteria listed in the applicable city code and provide a written recommendation to the city council containing the following:

1. Finding of fact and conclusions of law; and

2. Recommendation.

G. Notice of City Council Hearing. Notice of the city council public hearing shall be provided in the same manner as for the planning commission hearing.

H. City Council Decision. The city council shall hold an open record public hearing on the proposal. The director shall transmit to the city council the staff report, planning commission recommendation and any written comments received prior to the city council hearing. The city council may confirm, modify or reject the planning commission recommendations.

I. Appeal of Type VI Decision. An action of the city council on a Type VI proposal may be appealed together with any SEPA threshold determination by filing a petition with the Growth Management Hearings Board or the superior court, as applicable. Appeals to the Growth Management Hearings Board are subject to the requirements set forth in RCW 36.70A.290 and must be filed within the 60-day time period set forth in RCW 36.70A.290(2). A land use petition filed with the superior court must meet the requirements set forth in Chapter 36.70C RCW and must be filed and served upon all necessary parties within the 21-day time period as set forth in RCW 36.70C.040. [Ord. 2011-08-048; Ord. 2009-08-051; Ord. 2008-08-079; Ord. 2004-12-088; Ord. 2004-09-065].

21.10.160 Type VII – Historic place certificate of alteration.

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

B. Notice of Application. The procedures in BMC 21.10.200 apply to a Type VII process.

C. Minimum Comment Period. The procedures in BMC 21.10.210 apply to a Type VII process.

D. Environmental Review. When a threshold decision is required under Chapter 16.20 BMC, the procedures in BMC 21.10.220 apply to a Type VII process.

E. Notice of Hearing.

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.

F. Historic Preservation Commission Hearing.

1. The historic preservation commission (commission) 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 department shall transmit to the commission a copy of the application, staff report and all written comments received prior to the hearing. The information shall also include the SEPA threshold decision and records regarding public notice of the application.

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

G. Historic Preservation Commission Decision.

1. The commission shall approve a project or approve with conditions if the applicant has demonstrated that the proposal complies with the applicable decision criteria in Chapter 17.90 BMC. 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 commission shall deny the application.

2. Following the close of the record, a written report shall be issued that contains:

a. The decision of the commission;

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.

H. Notice of Decision. The procedures in BMC 21.10.230 apply to a Type VII process.

I. Appeal of Type VII Decision. A Type VII decision may be appealed to the hearing examiner. The hearing examiner shall conduct a closed record appeal hearing. [Ord. 2005-12-094; Ord. 2004-09-065].

21.10.170 Preapplication conference.

A. The purpose of a preapplication conference with staff is to assist applicants in preparing development applications for submittal to the city by identifying applicable regulations and procedures. It is not intended to provide an exhaustive review of proposed plans or a staff recommendation on future permit decisions. The director shall establish the submittal requirements and process for preapplication conferences. A fee may be required if established by the city council.

B. Applicability – Land Use Applications. A preapplication conference is required for the following land use applications unless a written waiver is granted by the planning director:

1. Preliminary plat (10 or more lots);

2. General binding site plans;

3. Planned development and institutional site plans;

4. Shoreline substantial development permits, conditional uses and variances;

5. Design review (excluding Type I);

6. Co-housing;

7. Conditional use (excluding bed and breakfast and single-family residential uses that do not exceed the thresholds in subsection (C) of this section);

8. Rezones and site-specific comprehensive plan amendments;

9. Institutional master plans (including essential public facilities reviewed under IMP process);

10. Critical area permit (excluding Type I);

11. Demonstration housing; or

12. Preliminary short plat requiring a critical area permit.

C. Applicability – Building and Grading Applications.

1. A preapplication conference is required for building or grading applications for projects that include any of the following situations unless a written waiver is granted by the planning director:

a. Required land use permits have not been completed;

b. Required SEPA environmental review has not been completed;

c. Over 5,000 square feet of new or replaced impervious surface;

d. Disturbance of more than one acre of land;

e. Public street or public utility construction; or

f. Construction of more than one primary building on a lot or any building that is four stories or more.

2. A preapplication conference may be required for any project that the planning director determines to be similar in nature to those listed in subsection (C)(1) of this section.

D. Submittal. The planning director shall develop submittal requirements and forms for preapplication conferences. A fee may be established by the city council.

E. Expiration. Preapplication review does not vest an application. If a complete application is not submitted within one year of the preapplication conference, a new preapplication conference or written waiver is required.

F. Authority Not Affected. A preapplication conference shall not be construed to constitute permit application, approval or any other decision and shall not affect in any way the city’s authority under the provisions of the Bellingham Municipal Code. [Ord. 2008-08-079; Ord. 2004-09-065].

21.10.180 Preapplication neighborhood meeting.

A. The purpose of the neighborhood meeting is to:

1. Inform citizens about the potential project at an early stage; and

2. Foster communication between the applicant and interested citizens regarding potential issues and opportunities for solutions related to the project.

B. An applicant is required to conduct a neighborhood meeting prior to the submittal of an application and after any required preapplication conference. The director may provide standard notice formats and guidelines for conducting the meeting. The notice shall include a brief description of the project, date, time and location of the neighborhood meeting and name and phone number of the applicant or their representative. The applicant shall mail the notice at least 10 days prior to the meeting to:

1. The planning and community development department with a copy of the mailing list;

2. The representatives to the mayor’s neighborhood advisory commission for the neighborhood in which the project will be located and any neighborhoods within 500 feet of the project site;

3. The list of property owners that will be required to be notified of the proposed application;

4. Neighborhood associations for the project area that have registered a request to receive notice with the planning and community development department; and

5. The local newspaper.

C. The applicant shall also post the notice on the project site at least 14 days prior to the meeting for a Type VI application and at least seven days prior to the meeting for all other applications.

D. The proceeding is not invalid if there are minor deficiencies in the mailed or posted notice as required in this section as long as there was a good faith attempt to comply with the notice requirements. [Ord. 2004-09-065].

21.10.190 Application.

A. Submittal Requirements. The director shall specify in writing submittal requirements for applications and provide official application forms. The director may waive specific submittal requirements determined to be unnecessary for review of an application. The director may require additional material such as maps, studies or models when the director determines such material is needed to adequately assess the proposed project. A complete application consists of an application form together with all required information listed in the submittal requirements and payment of the application fee as may be established by the city council.

B. Determination of Complete Application.

1. This subsection applies to applications requiring a Type I, II, III, V-A or VII process.

2. Within 28 days after receiving a permit application, the city shall mail, fax or otherwise provide to the applicant or his authorized representative a written determination which states either that the application is complete or that the application is incomplete and what is necessary to make the application complete. If the director does not provide a written determination within the 28 days, the application shall be deemed complete as of the end of the twenty-eighth day. If the applicant fails to submit the required information within 120 days from the date of the written determination, the application shall become null and void. The applicant may request a refund of application fees but 20 percent shall be nonrefundable. The director may extend the response period beyond 120 days if within that time period the applicant provides and subsequently adheres to an approved schedule with specific target dates for submitting the required information.

3. To the extent known by the city, other agencies with jurisdiction over the permit application shall be identified in the city’s determination of completeness.

4. A project permit application is complete for purposes of this section when it meets the submittal requirements established by the director and is sufficient for continued processing even though additional information may be required. The determination of completeness shall not prevent the city from requesting additional information or studies either at the time of the notice of completeness or at some later time, if new information is required or where there are changes in the proposed action.

5. Within 14 days after an applicant has submitted information in response to a notice of incomplete application, the director shall notify the applicant whether the application is complete or specify what additional information is necessary.

C. Expiration of Applications. Any complete land use application for which no substantial steps have been taken to respond to the city’s request for revisions, corrections or additional information within 120 days of the written determination will expire and become null and void. The applicant may request a refund of application fees but 50 percent shall be nonrefundable. The time limit does not include those provisions described in BMC 21.10.080(B)(2) and (3). The director may extend the response period beyond 120 days in accordance with BMC 21.10.080(A). [Ord. 2008-08-080; Ord. 2004-12-088; Ord. 2004-09-065].

21.10.200 Notice of application.

A. This section applies to applications requiring a Type II, III-A, III-B or VII process.

B. Within 14 days after the city has made a determination of completeness for a permit application, the city shall issue a notice of application. The date of notice shall be the date of mailing. Except for a determination of significance under the State Environmental Policy Act (SEPA), the city shall not issue its SEPA threshold determination or issue a decision or recommendation on a permit application until the expiration of the public comment period on the notice of application. If an optional determination of nonsignificance (DNS) process is used, the notice of application and DNS comment period shall be combined.

C. The notice of application shall include:

1. The date of the application, the date the application was determined to be complete and the date of the notice of application;

2. The name of the applicant;

3. The description and location of the project;

4. The requested actions and/or permits and any other required permits known by the city;

5. A list of any required studies;

6. The date, time, place and purpose of any required public meeting or hearing, if it has been scheduled;

7. Identification of environmental documents that evaluate the project;

8. A statement of the minimum public comment period;

9. A statement of the right of any person to comment on the application, to receive notice of and participate in any hearings, to request a copy of the decision once made, and a statement specifying any appeal rights;

10. A statement of the preliminary determination of consistency, if one has been made at the time of notice, of those development regulations that will be used for project mitigation and of consistency as provided in RCW 36.70B.040;

11. The location where the application and other listed materials can be viewed;

12. The city staff contact and phone number; and

13. Any other information determined appropriate by the city.

D. Mailed Notice.

1. The applicant is responsible for obtaining the list of property owners from the Whatcom County assessor’s records. The director may establish procedures under which the applicant and city may agree that the city will provide this mailing list or that the applicant will conduct the mailing. A U.S. Postal Service certificate of mailing shall be provided to the director if the applicant conducts the mailing.

2. The director may increase the notification radius or notification method for any specific application. The validity of the notice procedure shall not be affected by whether the director uses this option.

3. The planning and community development department, or applicant if authorized under this section, shall mail notice of application to:

a. The applicant;

b. The owner of the property as listed on the application;

c. Owners of property within 500 feet (100 feet for home occupations) of the site boundary of the subject property as listed by the Whatcom County assessor records;

d. The mayor’s neighborhood advisory commission representative and any neighborhood association registered with the planning and community development department for the neighborhood in which the project is proposed, and for any neighborhood within 500 feet of the project site boundary; and

e. Any person or organization that has filed a written request for notice with the planning and community development department.

4. No proceeding shall be invalid due to minor deficiencies in the mailed notice as required in this section as long as the other method(s) of notice has met its respective requirements and there was a good faith attempt to comply with the mailed notice requirements.

E. Posted Notice.

1. The applicant shall post one or more signs on the site or in a location immediately adjacent to the site that provides visibility from adjacent streets. The director shall establish standards for size, color, layout, materials, placement and timing of installation and removal of the signs.

2. No proceeding shall be invalid due to minor deficiencies in the posted notice as required in this section as long as the other method(s) of notice has met its respective requirements and there was a good faith attempt to comply with the posted notice requirements.

F. When feasible, notices of complete application, application, SEPA comment period and public meeting or hearing should be combined into one notice. [Ord. 2004-12-088; Ord. 2004-09-065].

21.10.210 Minimum comment period.

A. This section applies to applications requiring a Type II, III-A, III-B, V-A or VII process.

B. The minimum comment period shall be 14 days following the date of notice of application, except for shoreline permits and Type V-A applications, which shall have a minimum comment period of 30 days; and except for short subdivisions consisting of five or more lots, which shall have a minimum comment period of 20 days. The city may accept public comments at any time prior to the close of the open record public hearing, or if there is no public hearing, prior to the decision on the project permit. Except for a determination of significance (DS) under the State Environmental Policy Act and Chapter 16.20 BMC, the city shall not issue a final SEPA threshold determination or issue a decision or recommendation on a permit application until the expiration of the minimum public comment period. [Ord. 2004-12-088; Ord. 2004-09-065].

21.10.220 Environmental review.

A. When environmental review is required under Chapter 16.20 BMC for a Type II, III-A, III-B, V-A or VII process, the following procedures apply:

1. Threshold Determinations. The responsible official shall issue the threshold determination after the minimum comment period for the notice of application and prior to the decision on the application. When public notice of the threshold determination is required (see BMC 16.20.160), the threshold determination and notice of the 14-day comment period shall be mailed and posted in the same manner as the notice of application. The threshold determination shall also be sent to agencies with jurisdiction and the Washington State Department of Ecology (see BMC 16.20.080 and 16.20.160).

2. Optional DNS Process. For projects that are not likely to have a significant environmental impact, a preliminary DNS may be issued with the notice of application (see optional DNS process under BMC 16.20.080). The comment period for the DNS and the notice of application shall be combined. The notice of application shall state that the city expects to issue a DNS for the proposal and that this may be the only opportunity to comment on the environmental impacts of the proposed project. After the close of the comment period, the responsible official shall review any comments and issue a final threshold determination. When a final DNS is issued, no additional comment period is required.

3. Determination of Significance. If a determination of significance is issued and an environmental impact statement (EIS) is required, the Final EIS must be issued at least seven days prior to issuance of the decision on the application. (See BMC 16.20.130.) If the requirement to prepare an EIS is appealed, the appeal must be resolved prior to issuance of a decision on the application. [Ord. 2004-12-088; Ord. 2004-09-065].

21.10.230 Notice of decision.

A. This section applies to applications requiring a Type II, III-A, III-B, V-A or VII process.

B. A notice of decision shall be mailed to the applicant and to any person who, prior to rendering the decision, requested notice of the decision or submitted substantive comments on the application. The notice shall be mailed within 10 days after the decision.

C. The notice of decision shall include a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for administrative appeal, if an administrative appeal option is provided. [Ord. 2004-12-088; Ord. 2004-09-065].

21.10.240 Effect of decision.

A. This section applies to Type I, II, III-A, III-B or VII decisions.

B. Unless otherwise provided in subsection (C) of this section, the decision is presumed valid and in effect on the date issued unless an administrative appeal is filed. The filing of any administrative appeal shall stay all development activity based on the decision granting the application until such time as the city issues a final decision on the matter. Any applicant receiving approval who engages in any activity based on the decision granting the application prior to the filing of any appeal or prior to the expiration of any administrative appeal period, does so at his/her own risk.

C. Exceptions.

1. Shoreline Permits. All city decisions on a shoreline permit shall be submitted to the Department of Ecology. Development under a shoreline substantial development permit shall not begin and shall not be authorized until 21 days from the date of filing the city’s decision with the Department of Ecology as defined in RCW 90.58.140(6) and WAC 173-27-130, or until all review proceedings initiated within 21 days from the date of filing have been terminated; except as provided in RCW 90.58.140(5)(a) and (b). This restriction shall be stated on the permit.

2. Shoreline Conditional Use or Variance. The city’s decision on a shoreline conditional use or shoreline variance shall be submitted to the Department of Ecology for a final decision. Development under the variance or conditional use shall not begin and shall not be authorized until 21 days from the date of filing the Department of Ecology decision with the city as defined in RCW 90.58.140(6) and WAC 173-27-130, or until all review proceedings initiated within 21 days from the date of filing have been terminated; except as provided in RCW 90.58.140(5)(a) and (b). This restriction shall be stated on the notice of decision sent to the applicant. On receipt of the Department of Ecology decision, the city shall provide timely notice of the decision to the applicant and other interested persons having requested notification, as provided by WAC 173-27-200.

3. Critical Area Permits. Critical area permits shall be effective after the close of the appeal period, or if an appeal is filed, after the withdrawal of, or final decision on an administrative appeal.

4. Certificates of Demolition. A certificate of demolition for whole or partial demolition of a designated historic register property under Chapter 17.90 BMC shall be effective after the close of the appeal period, or if an appeal is filed, after the withdrawal of, or final decision on an administrative appeal. [Ord. 2005-12-094; Ord. 2005-11-092; Ord. 2004-09-065].

21.10.250 Procedures for appeal to the hearing examiner.

A. Who May Appeal. Any aggrieved party may appeal.

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

1. The action or decision being appealed and the date it was issued;

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

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

4. The specific relief requested; and

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

C. 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, or following the date of the decision if no notice was issued.

D. Notice of Appeal. A hearing date shall be set and the city shall provide notice of the hearing to the appellant, applicant, director and to any other person granted party status by the hearing body or officer. Notice shall be mailed or sent no less than 10 days prior to the appeal hearing.

E. Hearing Examiner Open Record Hearing. The appellant, the applicant, and the city shall be designated parties to the appeal. Each party may participate in the appeal hearing by presenting testimony or calling witnesses to present testimony. Interested persons, groups, associations or other entities who have not appealed may participate only if called by one of the parties to present information; provided, that the examiner may allow nonparties to present relevant testimony if allowed under the examiner rules of procedure.

F. Hearing Examiner Closed Record Hearing. The appellant, the applicant, and the city shall be designated parties to the appeal.

G. Hearing Examiner Decision. The hearing examiner shall issue a written decision to grant, grant with modifications, or deny the appeal. The hearing examiner may grant the appeal or grant the appeal with modification if:

1. The appellant has carried the burden of proof; and

2. The examiner finds that the decision is not supported by a preponderance of the evidence.

H. Reconsideration.

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.

I. Appeal of Hearing Examiner Decision. A final decision by the hearing examiner may be appealed to the 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. 2004-09-065].

21.10.260 Vesting.

A. Vesting of Land Use Applications. Unless provided otherwise by this section, an application for a land use permit or other project permit shall be considered under the development regulations in effect on the date of filing of that complete application as defined in BMC 21.10.190. This section does not establish vesting rules for impact fees.

B. Exceptions.

1. If a comprehensive plan amendment or rezone is required, any previously submitted land use permit application shall be considered under the laws, ordinances and standards in effect on the date that such zoning or plan amendment is final.

2. An application for a land use approval may be denied or approved with conditions under the authority of the city to protect and enhance the public safety, health and welfare, and under the State Environmental Policy Act (SEPA) and the city of Bellingham’s SEPA regulations and policies as of the date of vesting.

C. Expiration of Vested Status.

1. Except for lot line adjustments, short subdivisions, preliminary plats, general binding site plans, planned developments and critical area permits or where a different duration of approval is established by city ordinance, executed development agreement or state or federal law, the vested status of an approved land use permit under Process Type I, II, III or VII shall expire two years from the date of the city’s final decision, unless a complete building permit application is filed before the end of the two-year term.

2. Planned development approvals and critical area permits shall expire five years from the date of the city’s final decision unless a complete building permit application is filed before the end of the five-year term or the applicant has obtained an extension from the planning director. The director may grant one extension of up to two years.

3. If a complete building permit application is filed prior to the expiration of the land use permit, the vested status of the permit shall be automatically extended for the time period during which the building permit application is pending prior to issuance; provided, that if the building permit application expires or is cancelled, the vested status of the permit or approval shall also expire or be cancelled. If a building permit is issued and subsequently renewed, the vested status of the subject permit or approval under the permit shall be automatically extended for the period of the renewal.

D. One-Time Economic Hardship Extension of Vested Status.

1. The planning and community development director shall grant a one-time two-year extension, from the date of expiration, of the vested status of an issued land use approval under Process Type I, II, III, or VII or a Whatcom County issued land use approval on a property that has been annexed into the city of Bellingham if all of the following criteria are met:

a. The applicant files a written extension request with applicable fee on forms provided by the city by no later than December 31, 2011;

b. The extension request includes a sworn declaration that the work authorized by the land use approval will be delayed as a result of an inability to secure financing; and

c. The extension request is for an issued land use approval set to expire between January 1, 2010, and December 31, 2011.

2. To the extent the applicant has not obtained an extension identified in BMC 18.04.100, 18.16.110 or subsection (C) of this section prior to applying for this one-time extension, the applicant may utilize these other extensions upon conclusion of this two-year one-time extension. Requests for these other extensions shall be submitted to the city prior to the expiration of the one-time two-year extension. [Ord. 2016-02-005 § 36; Ord. 2010-05-026; Ord. 2004-09-065].

21.10.270 Interpretation.

A. Applicability. This section applies to each written request to interpret the provisions of the land use development code and any other city development regulations administered by the director.

B. Purpose. An interpretation of the provisions of the code clarifies conflicting or ambiguous wording, or the scope or intent of the provisions of the code as it applies to review of a project. A request for a code interpretation must relate to a specific site, land use district, use or application within the city of Bellingham. An interpretation of the provisions of the code may not be used to amend that code.

C. Request for Interpretation. Anyone may request an interpretation consistent with the provisions of this chapter/section. Any person requesting an interpretation of the code shall submit a written request specifying each provision of the code for which an interpretation is requested, why an interpretation of each provision is necessary and any reasons or material in support of a proposed interpretation. The city council may establish an application fee for interpretation requests.

D. Procedure.

1. The director shall determine how to process the code interpretation request. The request may be:

a. Processed as a Type I decision; or

b. Consolidated with the process associated with the review of the application.

2. The director shall consult with the Department of Ecology regarding any interpretation of the shoreline master program.

E. Factors for Consideration. In making an interpretation of the provisions of the code, the director shall consider the following:

1. The applicable provisions of the code including their purpose and context;

2. The impact of the interpretation on other provisions of the code;

3. The implications of the interpretation for development within the city as a whole; and

4. The applicable provisions of the comprehensive plan and other relevant codes and policies. [Ord. 2004-09-065]