Chapter 19.06
OPEN AND CLOSED RECORD APPEALS – CLOSED RECORD DECISIONS
Sections:
19.06.001 Right of appeal.
19.06.002 Consolidated appeals.
19.06.003 Standing to initiate an administrative appeal.
19.06.004 Appeals of decisions.
19.06.005 Procedure for open record appeal hearing.
19.06.006 Procedure for closed record appeal.
19.06.007 Closed record decisions.
19.06.008 Judicial appeals.
19.06.001 Right of appeal.
The right of appeal for all project permit applications and Type V land use decisions shall be as described in the matrix set forth in GHMC 19.01.003. (Ord. 1197 § 109, 2010; Ord. 806 § 26, 1998; Ord. 711 § 1, 1996).
19.06.002 Consolidated appeals.
All appeals of project permit application decisions, other than appeals of determinations of significance (“DS”), and exempt permits and approvals under GHMC 19.01.007, shall be considered together in a consolidated appeal using the appeal procedure for the highest type permit application. (Ord. 806 § 28, 1998; Ord. 711 § 1, 1996).
19.06.003 Standing to initiate an administrative appeal.
A. Limited to Parties of Record. Only parties of record may file an administrative appeal.
B. Definition. The term “parties of record,” for the purposes of this chapter, shall mean:
1. The applicant;
2. Any person who testified at the open record public hearing on the application;
3. Any person who submitted written comments concerning the application (excluding persons who have only signed petitions or mechanically produced form letters);
4. The Gig Harbor city council;
5. Property owners within 300 feet of the property subject to the project permit; and/or
6. Any person who can demonstrate he/she is aggrieved by the decision. (Ord. 1197 § 110, 2010; Ord. 889 § 1, 2001; Ord. 806 § 29, 1998; Ord. 711 § 1, 1996).
19.06.004 Appeals of decisions.
A. Permit Decisions. Appeals of a decision shall be governed by the following:
1. Standing. Only parties of record have standing to appeal the decision.
2. Time to File. An appeal must be filed within 14 days after the issuance of the notice of decision. Appeals shall be delivered to the director by mail, by personal delivery or by fax before 5:00 p.m. on the last business day of the appeal period. Appeals received by mail after 5:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.
3. Computation of Time. For the purposes of computing the time for filing an appeal, the day the decision is issued shall not be counted. If the last day of the appeal is a Saturday, Sunday, or holiday designated by RCW 1.16.050 or by a city ordinance, then the appeal must be filed on the next business day.
4. Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee, and contain the following information:
a. Appellant’s name, address and phone number;
b. A statement describing appellant’s standing to appeal;
c. Identification of the application which is the subject of the appeal;
d. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts in the record;
e. The specific relief sought;
f. A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.
5. Effect. The timely filing of an appeal shall stay the hearing body’s decision until such time as the appeal is concluded or withdrawn.
6. Burden of Proof. The appellant shall bear the burden to demonstrate that substantial evidence does not exist in the administrative record to support the decision of the hearing body/officer.
7. Standard of Review. The appeal body/officer shall determine whether there is substantial evidence in the administrative record to support the decision of the hearing body/officer. The appeal body/officer may affirm, modify or reverse the decision of the hearing body/officer. Reasonable determinations by the body or officer that made the decision shall be accorded substantial weight.
8. Remand. Upon written agreement by the applicant to waive the requirement for a decision within the time periods set forth in GHMC 19.02.007, as allowed by RCW 36.70B.080(3), the appeal body/officer may remand the decision to the hearing body for additional information. (Ord. 1197 § 111, 2010; Ord. 806 § 30, 1998; Ord. 711 § 1, 1996).
19.06.005 Procedure for open record appeal hearing.
A. An open record appeal hearing shall be conducted in the manner set forth in Chapter 19.05 GHMC. The provisions of this chapter shall prevail in the event of conflict with Chapter 19.05 GHMC.
B. Public Notice. Public notice of the open record appeal hearing shall be mailed and published pursuant to GHMC 19.03.003.
C. An open record appeal hearing on a site plan review decision pursuant to Chapter 17.96 GHMC shall be heard by the hearing examiner de novo. (Ord. 1197 § 114, 2010).
19.06.006 Procedure for closed record appeal.
A. Closed record appeals shall be on the record established at the open record hearing before the hearing body/officer whose decision is appealed, which shall include the written decision of the hearing body/officer, a transcript or tape recording of the proceedings, and copies of any exhibits admitted into the record.
B. No new testimony or other evidence will be accepted by the appeal body/officer except: (1) new information that was unknown to the parties at the time of the hearing which could not reasonably have been discovered by the parties and is necessary for a just resolution of the appeal; and (2) relevant information that, in the opinion of the appeal body/officer, was improperly excluded by the hearing body/officer. Appellants who believe that information was improperly excluded must specifically request, in writing prior to the closed record appeal hearing, that the information be made part of the record. The request shall describe the information excluded, its relevance to the issues appealed, the reason(s) that the information was excluded by the hearing body/officer, and why the hearing body/officer erred in excluding the information. No reference to excluded information shall be made in any presentation to the appeal body/officer on the merits, written or oral, until the appeal body/officer has determined that the information should be admitted.
C. Parties to the appeal may present written and/or oral arguments to the appeal body/officer. Argument shall describe the particular errors committed by the hearing body/officer, with specific references to the administrative record.
D. The hearing shall commence with a presentation by the director, or the director’s designee, of the general background of the proposed development and the issues in dispute. After the director’s presentation, the appellant(s) shall first present oral argument, and then the other parties of record shall make their arguments. The appeal body/officer may question any party concerning disputed issues, but shall not request information not in the administrative record. (Ord. 1197 § 113, 2010; Ord. 903 § 2, 2002; Ord. 806 § 32, 1998. Formerly 19.06.005).
19.06.007 Closed record decisions.
If the city council determines that the applicable criteria have been met for a Type IV permit, the city council shall approve the permit by resolution. (Ord. 1197 § 116, 2010).
19.06.008 Judicial appeals.
The city’s final decision on an application may be appealed by a party of record with standing to file a land use petition in Pierce County superior court. Such petition must be filed within 21 days after issuance of the decision, as provided in Chapter 36.70C RCW. (Ord. 1197 § 112, 2010; Ord. 711 § 1, 1996. Formerly 19.06.006).