Chapter 19.15 ADMINISTRATION

Chapter 19.15
ADMINISTRATION

Sections:

19.15.010 General procedures.

19.15.020 Permit review procedures.

19.15.040 Design commission.

19.15.010 General procedures.

A. Purpose. Administration of the development code is intended to be expedient and effective. The purpose of this chapter is to identify the processes, authorities and timing for administration of development permits. Public noticing and hearing procedures, decision criteria, appeal procedures, dispute resolution and code interpretation issues are also described.

B. Objectives. Guide customers confidently through the permit process; process permits equitably and expediently; balance the needs of permit applicants with neighbors; allow for an appropriate level of public notice and involvement; make decisions quickly and at the earliest possible time; allow for administrative decision-making, except for those decisions requiring the exercise of discretion which are reserved for appointed decision makers; ensure that decisions are made consistently and predictably; and resolve conflicts at the earliest possible time.

C. Roles and Responsibilities. The roles and responsibilities for carrying out the provisions of the development code are shared by appointed boards and commissions, elected officials and city staff. The authorities of each of these bodies are set forth below.

1. City Council. The city council is responsible for establishing policy and legislation affecting land use within the city. The city council acts on recommendations of the planning commission in legislative and quasi-judicial matters, and serves as the appeal authority on discretionary actions.

2. Planning Commission. The role of the planning commission in administering the development code is governed by Chapter 3.46 MICC. In general, the planning commission is the designated planning agency for the city (see Chapter 35A.63 RCW). The planning commission is responsible for final action on a variety of discretionary permits and makes recommendations to the city council on land use legislation, comprehensive plan amendments and quasi-judicial matters. The planning commission also serves as the appeal authority for some ministerial and administrative actions.

3. Design Commission. The role of the design commission in administering the development code is governed by Chapter 3.34 MICC and MICC 19.15.040. In general, the design commission is responsible for maintaining the city’s design standards and action on sign, commercial and multiple-family design applications.

4. Building Board of Appeals. The role of the building board of appeals in administering the construction codes is governed by Chapter 3.28 MICC. In general, the building board of appeals is responsible for hearing appeals of interpretations or application of the construction codes set forth in MICC Title 17.

5. Development Services Group. The responsible officials in the development services group act upon ministerial and administrative permits.

a. The code official is responsible for administration, interpretation and enforcement of the development code.

b. The building official is responsible for administration and interpretation of the building code, except for the International Fire Code.

c. The city engineer is responsible for the administration and interpretation of engineering standards.

d. The environmental official is responsible for the administration of the State Environmental Policy Act and shoreline master program.

e. The fire code official is responsible for administration and interpretation of the International Fire Code.

6. Hearing Examiner. The role of the hearing examiner in administering the development code is governed by Chapter 3.40 MICC.

D. Actions. There are four categories of actions or permits that are reviewed under the provisions of the development code.

1. Ministerial Actions. Ministerial actions are based on clear, objective and nondiscretionary standards or standards that require the application of professional expertise on technical issues.

2. Administrative Actions. Administrative actions are based on objective and subjective standards that require the exercise of limited discretion about nontechnical issues.

3. Discretionary Actions. Discretionary actions are based on standards that require substantial discretion and may be actions of broad public interest. Discretionary actions are only taken after an open record hearing.

4. Legislative Actions. Legislative actions involve the creation, amendment or implementation of policy or law by ordinance. In contrast to the other types of actions, legislative actions apply to large geographic areas and are of interest to many property owners and citizens. Legislative actions are only taken after an open record hearing.

E. Summary of Actions and Authorities. The following is a nonexclusive list of the actions that the city may take under the development code, the criteria upon which those decisions are to be based, and which boards, commissions, elected officials, or city staff have authority to make the decisions and to hear appeals of those decisions.


ACTION	DECISION AUTHORITY	CRITERIA	APPEAL AUTHORITY
Ministerial Actions
Right-of-Way Permit	City engineer	Chapter 19.09 MICC	Hearing examiner
Home Business Permit	Code official	MICC 19.02.010	Hearing examiner
Special Needs Group Housing Safety Determination	Police chief	MICC 19.06.080(A)	Hearing examiner
Lot Line Adjustment Permit	Code official	Chapter 19.08 MICC	Hearing examiner
Design Review – Minor Exterior Modification Outside Town Center	Code official	MICC 19.15.040, Chapters 19.11 and 19.12 MICC	Design commission
Design Review – Minor Exterior Modification in Town Center	Design commission	MICC 19.15.040, Chapters 19.11 and 19.12 MICC	Hearing examiner
Final Short Plat Approval	Code official	Chapter 19.08 MICC	Planning commission
Seasonal Development Limitation Waiver	Building official or city arborist	MICC 19.10.030, 19.07.060(D)(4)	Building board of appeals
Development Code Interpretations	Code official	MICC 19.15.020(L)	Planning commission
Shoreline Exemption	Code official	MICC 19.07.010	Hearing examiner*
Administrative Actions
Accessory Dwelling Unit Permit	Code official	MICC 19.02.030	Hearing examiner
Preliminary Short Plat	Code official	Chapter 19.08 MICC	Planning commission
Deviation (Except Shoreline Deviations)	Code official	MICC 19.15.020(G), 19.01.070, 19.02.050(F), 19.02.020(C)(2) and (D)(3)	Planning commission
Critical Areas Determination	Code official	Chapter 19.07 MICC	Planning commission
Shoreline – Substantial Development Permit	Code official	MICC 19.07.110	Shoreline hearings board
SEPA Threshold Determination	Code official	MICC 19.07.120	Planning commission
Short Plat Alteration and Vacations	Code official	MICC 19.08.010(G)	Hearing examiner
Long Plat Alteration and Vacations	City council via planning commission	MICC 19.08.010(F)	Superior court
Discretionary Actions
Conditional Use Permit	Planning commission	MICC 19.11.130(2), 19.15.020(G)	Hearing examiner
Reclassification (Rezone)	City council via planning commission*	MICC 19.15.020(G)	Superior court
Design Review – Major New Construction	Design commission	MICC 19.15.040, Chapters 19.11 and 19.12 MICC	Hearing examiner
Preliminary Long Plat Approval	City council via planning commission**	Chapter 19.08 MICC	Superior court
Final Long Plat Approval	City council via code official	Chapter 19.08 MICC	Superior court
Variance	Hearing examiner	MICC 19.15.020(G), 19.01.070	Planning commission
Variance from Short Plat Acreage Limitation	Planning commission	MICC 19.08.020	City council
Critical Areas Reasonable Use Exception	Hearing examiner	MICC 19.07.030(B)	Superior court
Street Vacation	City council via planning commission**	MICC 19.09.070	Superior court
Shoreline Deviation	Planning commission	MICC 19.07.080	City council
Shoreline Variance	Planning commission	MICC 19.07.110(C)(2)(d)	State Shorelines Hearings Board
Impervious Surface Variance	Hearing examiner	MICC 19.02.020(D)(4)	Superior court
Legislative Actions
Code Amendment	City council via planning commission**	MICC 19.15.020(G)	Growth management hearings board
Comprehensive Plan Amendment	City council via planning commission**	MICC 19.15.020(G)	Growth management hearings board
*Final rulings granting or denying an exemption under MICC 19.07.110 are not appealable to the shoreline hearings board (SHB No. 98-60).
**The original action is by the planning commission which holds a public hearing and makes recommendations to the city council which holds a public meeting and makes the final decision.

(Ord. 08C-01 § 8; Ord. 06C-06 § 2; Ord. 06C-05 § 2; Ord. 05C-12 § 9; Ord. 04C-12 § 16; Ord. 04C-08 § 3; Ord. 03C-08 §§ 9, 10; Ord. 02C-04 § 5; Ord. 02C-01 § 6; Ord. 99C-13 § 1).

19.15.020 Permit review procedures.

The following are general requirements for processing a permit application under the development code. Additional or alternative requirements may exist for actions under specific code sections (see MICC 19.07.080, 19.07.100, and 19.08.020).

A. Preapplication. Applicants for development permits are encouraged to participate in informal meetings with city staff and property owners in the neighborhood of the project site. Meetings with the staff provide an opportunity to discuss the proposal in concept terms, identify the applicable city requirements and the project review process. Meetings or correspondence with the neighborhood serve the purpose of informing the neighborhood of the project proposal prior to the formal notice provided by the city.

B. Application.

1. All applications for permits or actions by the city shall be submitted on forms provided by the development services group. An application shall contain all information deemed necessary by the code official to determine if the proposed permit or action will comply with the requirements of the applicable development regulations.

2. All applications for permits or actions by the city shall be accompanied by a filing fee in an amount established by city ordinance.

C. Determination of Completeness.

1. The city will not accept an incomplete application. An application is complete only when all information required on the application form and all submittal items required by code have been provided to the satisfaction of the code official.

2. Within 28 days after receiving a development permit application, the city shall mail or provide in person a written determination to the applicant, stating either that the application is complete or that the application is incomplete and what is necessary to make the application complete. An application shall be deemed complete if the city does not provide a written determination to the applicant stating that the application is incomplete.

3. Within 14 days after an applicant has submitted all additional information identified as being necessary for a complete application, the city shall notify the applicant whether the application is complete or what additional information is necessary.

4. If the applicant fails to provide the required information within 90 days of the determination of incompleteness, the application shall lapse. The applicant may request a refund of the application fee minus the city’s cost of determining the completeness of the application.

D. Notice of Application.

1. Within 14 days of the determination of completeness, the city shall issue a notice of application for all administrative, discretionary, and legislative actions listed in MICC 19.15.010(E).

2. The notice of application shall include the following information:

a. The dates of the application, the determination of completeness, and the notice of application;

b. The name of the applicant;

c. The location and description of the project;

d. The requested actions and/or required studies;

e. The date, time, and place of the open record hearing, if one has been scheduled;

f. Identification of environmental documents, if any;

g. A statement of the public comment period, which shall be not less than 14 days nor more than 30 days following the date of notice of application; and a statement of the rights of individuals to comment on the application, receive notice and participate in any hearings, request a copy of the decision once made and any appeal rights;

h. The city staff contact and phone number;

i. The identification of other permits not included in the application to the extent known by the city;

j. A description of those development regulations used in determining consistency of the project with the city’s comprehensive plan; and

k. Any other information that the city determines appropriate.

3. Open Record Hearing. If an open record hearing is required on the permit, the city shall:

a. Provide the notice of application at least 15 days prior to the hearing; and

b. Issue any threshold determination required under MICC 19.07.100 at least 15 days prior to the hearing.

4. Notice shall be provided in the bi-weekly DSG bulletin, posted at City Hall and made available to the general public upon request.

5. All comments received on the notice of application must be received by the development services group by 5 pm on the last day of the comment period.

6. Except for a determination of significance, the city shall not issue a threshold determination under MICC 19.07.100 or issue a decision on an application until the expiration of the public comment period on the notice of application.

7. A notice of application is not required for the following actions; provided, the action is either categorically exempt from SEPA or an environmental review of the action in accordance with SEPA has been completed:

a. Building permit;

b. Lot line revision;

c. Right-of-way permit;

d. Storm drainage permit;

e. Home occupation permit;

f. Design review – minor new construction;

g. Final plat approval;

h. Shoreline exemption permit;

i. Critical lands determination; and

j. Seasonal development limitation waiver.

E. Public Notice.

1. In addition to the notice of application, a public notice is required for all administrative, discretionary, and legislative actions listed in MICC 19.15.010(E).

2. Public notice shall be provided at least 10 days prior to any required open record hearing. If no such hearing is required, public notice shall be provided 10 days prior to the decision on the application.

3. The public notice shall include the following:

a. A general description of the proposed project and the action to be taken by the city;

b. A nonlegal description of the property, vicinity map or sketch;

c. The time, date and location of any required open record hearing;

d. A contact name and number where additional information may be obtained;

e. A statement that only those persons who submit written comments or testify at the open record hearing will be parties of record; and only parties of record will receive a notice of the decision and have the right to appeal; and

f. A description of the deadline for submitting public comments.

4. Public notice shall be provided in the following manner:

a. Administrative and Discretionary Actions. Notice shall be mailed to all property owners within 300 feet of the property and posted on the site in a location that is visible to the public right-of-way.

b. Legislative Action. Notice shall be published in a newspaper of general circulation within the city.

F. Open Record Hearing.

1. Only one open record hearing shall be required prior to action on all discretionary and legislative actions except design review and street vacations.

2. Open record hearings shall be conducted in accordance with the hearing body’s rules of procedures. In conducting an open record hearing, the hearing body’s chair shall, in general, observe the following sequence:

a. Staff presentation, including the submittal of any additional information or correspondence. Members of the hearing body may ask questions of staff.

b. Applicant and/or applicant representative’s presentation. Members of the hearing body may ask questions of the applicant.

c. Testimony by the public. Questions directed to the staff, the applicant or members of the hearing body shall be posed by the chairperson at his/her discretion.

d. Rebuttal, response or clarifying statements by the applicant and/or the staff.

e. The public comment portion of the hearing is closed and the hearing body shall deliberate on the action before it.

3. Following the hearing procedure described above, the hearing body shall:

a. Approve;

b. Conditionally approve;

c. Continue the hearing; or

d. Deny the application.

G. Decision Criteria. Decisions shall be based on the criteria specified in the Mercer Island City Code for the specific action. A reference to the code sections that set out the criteria and standards for decisions appears in MICC 19.15.010(E). For those actions that do not otherwise have criteria specified in other sections of the code, the following are the required criteria for decision.

1. Comprehensive Plan Amendment.

a. There exists obvious technical error in the information contained in the comprehensive plan;

b. The amendment is consistent with the Growth Management Act, the county-wide planning policies, and the other provisions of the comprehensive plan and city policies;

c. The amendment addresses changing circumstances of the city as a whole;

d. If the amendment is directed at a specific property, the following additional findings shall be determined:

i. The amendment is compatible with the adjacent land use and development pattern;

ii. The property is suitable for development in conformance with the standards under the potential zoning;

iii. The amendment will benefit the community as a whole and will not adversely affect community facilities or the public health, safety, and general welfare.

2. Reclassification of Property (Rezones).

a. The proposed reclassification is consistent with the policies and provisions of the Mercer Island comprehensive plan;

b. The proposed reclassification is consistent with the purpose of the Mercer Island development code as set forth in MICC 19.01.010;

c. The proposed reclassification is an extension of an existing zone, or a logical transition between zones;

d. The proposed reclassification does not constitute a “spot” zone;

e. The proposed reclassification is compatible with surrounding zones and land uses; and

f. The proposed reclassification does not adversely affect public health, safety and welfare.

3. Conditional Use Permit.

a. The permit is consistent with the regulations applicable to the zone in which the lot is located;

b. The proposed use is determined to be acceptable in terms of size and location of site, nature of the proposed uses, character of surrounding development, traffic capacities of adjacent streets, environmental factors, size of proposed buildings, and density;

c. The use is consistent with policies and provisions of the comprehensive plan; and

d. Conditions shall be attached to the permit assuring that the use is compatible with other existing and potential uses within the same general area and that the use shall not constitute a nuisance.

4. Variances.

a. No use variance shall be allowed;

b. There are special circumstances applicable to the particular lot such as the size, shape, topography, or location of the lot; the trees, groundcover, or other physical conditions of the lot and its surroundings; or factors necessary for the successful installation of a solar energy system such as a particular orientation of a building for the purposes of providing solar access;

c. The granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the property is situated;

d. The granting of the variance will not alter the character of the neighborhood, nor impair the appropriate use or development of adjacent property; and

e. The variance is consistent with the policies and provisions of the comprehensive plan and the development code.

5. Deviation.

a. No use deviation shall be allowed;

b. The granting of the deviation will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the property is situated;

c. The granting of the deviation will not alter the character of the neighborhood, nor impair the appropriate use or development of adjacent property; and

d. The deviation is consistent with the policies and provisions of the comprehensive plan and the development code.

H. Notice of Decision.

1. Unless the city and applicant have mutually agreed in writing to an extension of time, project review shall be completed within 120 days from the date the application is determined to be complete. Time required for the submittal of additional information, preparation of environmental impact statement, and hearing of appeals shall be excluded from this 120-day period.

2. Written notice of the decision shall be provided to the applicant and all parties of record. Notice of decision shall also be provided in the biweekly DSG bulletin.

I. Optional Consolidated Permit Processing.

1. An application that involves two or more permits may be processed concurrently and the decision consolidated at the request of the project applicant. If an applicant elects the consolidated permit processing, the code official shall determine the appropriate application and review procedures for the project.

2. If a project requires action from more than one hearing body, the decision authority in the consolidated permit review shall be by the decision body with the broadest discretionary powers.

J. Appeals.

1. Any party of record on a decision may file a letter of appeal on the decision. Appeals shall be filed with the city clerk within 14 days after the notice of decision or after other notice that the decision has been made and is appealable.

2. Appeals shall include the following information:

a. The decision being appealed;

b. The name and address of the appellant and his/her interest in the matter;

c. The specific reasons why the appellant believes the decision to be wrong. The burden of proof is on the appellant to demonstrate that there has been substantial error, or the proceedings were materially affected by irregularities in procedure, or the decision was unsupported by evidence in the record, or that the decision is in conflict with the standards for review of the particular action;

d. The desired outcome or changes to the decision; and

e. The appeals fee, if required.

3. Authority for appeals is specified in MICC 19.15.010(E).

4. Public notice of an appeal shall be provided in the manner specified in subsection E of this section.

5. The rules of procedure for appeal hearings shall be as follows:

a. For development proposals that have been subject to an open record hearing, the appeal hearing shall be a closed record appeal, based on the record before the decision body, and no new evidence may be presented.

b. For development proposals that have not been subject to an open record hearing, the appeal hearing shall be an open record appeal and new information may be presented.

c. The total time allowed for oral argument on the appeal shall be equal for the appellants and the applicant (if not the appellants). If there are multiple parties on either side, they may allocate their time between themselves or designate a single spokesperson to represent the side. All testimony shall be given under oath.

d. If the hearing body finds that there has been substantial error, or the proceedings were materially affected by irregularities in procedure, or the decision was unsupported by material and substantial evidence in view of the entire record, or the decision is in conflict with the city’s applicable decision criteria, it may:

i. Reverse the decision.

ii. Modify the decision and approve it as modified.

iii. Remand the decision back to the decision maker for further consideration.

e. If the hearing body finds that none of the procedural or factual basis listed above exist and that there has been no substantial error, the hearing body may adopt the findings and/or conclusions of the decision body, concur with the decision of the decision body and approve the development proposal as originally approved, with or without modifications.

f. Final decision on the appeal shall be made within 30 days of the appeal hearing.

g. The city’s final decision on a development proposal may be appealed by a party of record with standing to file a land use petition in King County superior court. Such petition must be filed within 21 days of the issuance of the decision.

K. Expiration of Approvals. Except for building permits or unless otherwise conditioned in the approval process, permits shall expire one year from the date of notice of decision if the activity approved by the permit is not exercised. Responsibility for knowledge of the expiration date shall be with the applicant.

L. Code Interpretations. Upon request or as determined necessary, the code official shall interpret the meaning or application of provisions of the development code. The code official may also bring any issue of interpretation before the planning commission for determination. Anyone in disagreement with an interpretation by the code official may also request a review of the code official’s interpretation by the planning commission. (Ord. 08C-01 § 8; Ord. 02C-04 § 7; Ord. 02C-01 § 6; Ord. 99C-13 § 1).

19.15.030 Enforcement.

A. Violations.

1. It is a violation of the development code, MICC Title 19, for any person to initiate or maintain or cause to be initiated or maintained the use of any structure, land or real property within the city of Mercer Island without first obtaining proper permits or authoriza-

tions required for the use by the development code.

2. It is a violation of the development code for any person to use, construct, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the city of Mercer Island in any manner that is not permitted by the terms of any permit or authorization issued pursuant to the development code or previous codes.

3. It is a violation of the development code to misrepresent any material fact in any application, plans or other information submitted to obtain any land use authorization.

4. It is a violation of the development code for anyone to fail to comply with the requirements of the development code, as set out in the specific sections of the code.

B. Duty to Enforce.

1. It shall be the duty of the director of the development services group to enforce the development code. The director may call upon the police, fire, health or other appropriate city departments to assist in enforcement.

2. Upon presentation of proper credentials, the director or duly authorized representative of the director may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any building or premises subject to the consent or warrant to perform the duties imposed by the development code.

3. The development code shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.

4. It is the intent of the development code to place the obligation of complying with its requirements upon the owner, occupier or other person responsible for the condition of the land and buildings within the scope of this code.

5. No provisions or term used in this code is intended to impose any duty upon the city or any of its officers or employees, which would subject them to damages in a civil action.

C. Investigation.

1. The director or his/her designee, shall investigate any structure or use which the director reasonably believes does not comply with the standards and requirements of this development code.

2. If, after investigation, the director determines that the standards or requirements have been violated, the director shall serve a notice of violation upon the owner, tenant or other person responsible for the condition. The notice of violation shall state separately each standard or requirement violated; shall state what corrective action, if any, is necessary to comply with the standards or requirements; and shall set a reasonable time for compliance. The notice shall state that any further violation may result in criminal prosecution and civil penalties.

3. The notice shall be served upon the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested addressed to the last known address of such person. If, after a reasonable search and reasonable efforts are made to obtain service, the whereabouts of the person or persons is unknown or service cannot be accomplished and the director makes an affidavit to that effect, then service of the notice upon such person or persons may be made by publication and mailing to the last known address.

D. Stop Work/Emergency Orders.

1. Stop Work Order. Whenever a continuing violation of the development code will materially impair the director’s ability to secure compliance with this code, or when the continuing violation threatens the health or safety of the public, the director may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. A failure to comply with a stop work order shall constitute a violation of this development code.

2. Emergency Order. Whenever any use or activity in violation of this code threatens the health and safety of the occupants of the premises or any member of the public, the director may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible. A failure to comply with an emergency order shall constitute a violation of this development code.

3. Any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the director is authorized to abate such nuisance summarily by such means as may be available. If the city declines to bring an abatement action, then such action may be brought by any person who owns or resides on property within 300 feet of the structure or whose use and enjoyment of property is impaired by the structure or use complained of.

E. Extension of Compliance Date.

1. The director may grant a reasonable extension of time for compliance with any notice or order, whether pending or final, upon the director’s finding that substantial progress toward compliance has been made and that the public will not be adversely affected by the extension. Such extension of time shall not exceed 180 days.

2. An extension of time may be revoked by the director if it is shown that the conditions at the time the extension was granted have changed, the director determines that a party is not performing corrective actions as agreed, or if the extension creates an adverse effect on the public. The date of revocation shall then be considered as the compliance date.

F. Civil Penalty.

1. In addition to any other sanction or remedial procedure which may be available, any person violating or failing to comply with any of the provisions of the development code, stop work order or emergency order shall be subject to a cumulative monetary penalty. Each separate day of noncompliance shall be a separate and distinct violation of the development code and shall be subject to a separate notice of civil infraction. The penalty shall be:

a. Fifty dollars ($50) for the first day of noncompliance after the compliance date set in the notice.

b. Seventy-five dollars ($75) for the second day of noncompliance after the compliance date set in the notice.

c. One hundred dollars ($100) for the third and each following additional day of noncompliance after the compliance date set in the notice.

2. The penalty imposed by this section shall be collected by notice of civil infraction, as authorized by Chapter 7.80 RCW.

3. The director of development services, and his/her designees, are the authorized enforcement officers for purposes of issuing a notice of infraction for violation of the development code.

4. A notice of infraction issued under this section represents a determination that a civil infraction has been committed, and the determination is final unless contested.

5. The city’s notice of infraction shall include the following:

a. A statement that the notice represents a determination that a civil infraction has been committed by the person named and the determination is final unless contested.

b. A statement that a civil infraction is a noncriminal offense for which imprisonment may not be imposed.

c. A statement of the specific violation of the development code for which the notice is issued.

d. A statement of the monetary penalty for the violation.

e. A statement of the options available for responding to the notice of infraction and the procedures necessary to exercise those options.

f. A statement that at the hearing to contest the notice the city has the burden of proving, by a preponderance of the evidence, that the civil infraction was committed and that the person may subpoena witnesses, including the enforcement officer issuing the notice.

g. A statement that at any hearing requested to explain mitigating circumstances surrounding the commission of the civil infraction, the person will be deemed to have committed the infraction and may not subpoena witnesses.

h. A statement that the person must respond to the notice within 14 days.

i. A statement that failure to respond to the notice or to appear at a hearing, if requested, will result in a default judgment in the amount of the penalty and may be referred for criminal prosecution for failure to appear.

j. A statement, which the person shall sign, that the person promises to respond to the notice of civil infraction in one of the ways set forth in this section.

6. Any person who receives a notice of infraction for violation of the development code shall respond to the notice as provided in this section within 14 days of the date of the notice.

a. If the person does not contest the determination, he/she shall respond by completing the appropriate portion of the notice and sending it, with a check or money order in the amount of the penalty, to the court specified on the notice.

b. If the person wishes to contest the civil infraction, the person shall complete the portion of the notice requesting a hearing and submit it to the court specified on the notice. The court shall notify the person of the time and place of the hearing.

c. If the person does not contest the violation but wishes to explain mitigating circumstances surrounding the violation, the person shall complete the portion of notice requesting a hearing for that purpose and submit it to the court specified on the notice. The court shall notify the person of the time and place of the hearing.

d. The court shall enter a default judgment for the amount of the penalty for the civil infraction if a person fails to respond within 15 days or to appear at the hearing.

7. The violator may show as full or partial mitigation of the infraction:

a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the defendant.

8. Failure to respond to a civil citation within 14 days or to appear for a requested hearing is a misdemeanor, punishable by fine or imprisonment in jail.

G. Criminal Penalties. Any person violating or failing to comply with any of the provisions of this development code shall be subject to criminal prosecution and upon conviction shall be fined in a sum not exceeding $1,000 or be imprisoned in the city jail for a term not exceeding 90 days or be both fined and imprisoned. Each day of noncompliance with any of the provisions of this development code shall constitute a separate offense. However, the aggregate penalty for all days of noncompliance shall not exceed $5,000 or one year in the city jail.

H. Additional Relief. The director may seek legal or equitable relief to enjoin any actions or practices and abate any condition which constitutes or will constitute a violation of this development code when civil or criminal penalties are inadequate to effect compliance. (Ord. 99C-13 § 1).

19.15.040 Design commission.

A. Intent and Purpose. These regulations are intended to implement and further the comprehensive plan of the city and are adopted for the following purposes:

1. To promote the public health, safety and general welfare of the citizens of the city.

2. To recognize that land use regulations aimed at the orderliness of community growth, the protection and enhancement of property values, the minimization of discordant and unsightly surroundings, the avoidance of inappropriateness and poor quality of design and other environmental and aesthetic objectives provide not only for the health, safety and general welfare of the citizens, but also for their comfort and prosperity and the beauty and balance of the community, and as such, are the proper and necessary concerns of local government.

3. To protect, preserve and enhance the social, cultural, economic, environmental, aesthetic, and natural values that have established the desirable quality and unique character of Mercer Island.

4. To promote and enhance construction and maintenance practices that will tend to promote visual quality throughout Mercer Island.

5. To recognize environmental and aesthetic design as an integral part of the planning process.

B. Creation of Design Commission. A design commission is established as provided for in Chapter 3.34 MICC.

C. Rules and Records.

1. The design commission shall adopt rules and regulations for the conduct of its business, subject to the approval of the city council.

2. A majority of the membership shall constitute a quorum for the purpose of transacting business. Action by the design commission shall be by majority vote of the members constituting the quorum. A tie vote on a motion to approve shall constitute a failure of the motion and a denial of the application.

3. The code official shall serve as executive secretary of the design commission and shall be responsible for all records. All meetings of the design commission shall be open to the public. The design commission shall keep minutes of its proceedings and such minutes and a copy of its rules shall be kept on file in the office of the city clerk and open to inspection by the public.

D. Powers of the Commission.

1. No building permit or other required permit shall be issued by the city for any major new construction or minor exterior modification of any regulated improvement without prior approval of the design commission or code official as authorized pursuant to MICC 19.15.010(E).

2. The design commission or code official may require a bond or assignment of funds as set out in MICC 19.01.060(C) to secure the installation and maintenance of landscaping, screens, and other similar site improvements.

3. When the city council deems it necessary to retain consultants for a proposed capital improvement, the council shall seek recommendations from the design commission as to the selection of consultants to provide design services.

4. Consultants or city officials charged with the design responsibility for a major capital improvement shall hold preliminary discussions on the proposed project with the design commission to obtain its preliminary recommendations as to aesthetic, environmental and design principles and objectives. In addition, the design commission shall review major capital improvements at the completion of the design development phase. A capital improvement approved by the city council after review and recommendations by the design commission may be implemented on a phasing basis without further review so long as the improvement is developed in substantial conformity with the reviewed plan. Significant deviations from an approved plan shall be submitted to the design commission for its further review and recommendations.

5. The design commission or code official shall complete its review and make its decision and/or recommendations pursuant to the process set forth in subsection F of this section, and the review an decision and/or recommendations shall be based upon the design objectives and standards set forth in subsection G of this section, with such amendments as may be made from time to time.

E. Additional Functions.

1. The design commission may assist any person, group, or agency who requests design advice on matters not requiring formal commission action.

2. The design commission shall consult and cooperate with the planning commission and other governmental bodies on matters affecting the appearance of the Island. The design commission may offer recommendations to the appropriate city agencies and officials on legislation to promote aesthetic and environmental values.

3. The design commission shall act as the appeal authority for design review decisions made by the code official for minor exterior modifications outside the Town Center.

F. Design Review Procedure.

1. General.

a. Intent. The intent of the design review process is to ensure that regulated development in all land use zones complies with design objectives and standards established in Chapters 19.11 and 19.12 MICC.

b. Scope. No building permit or other required permit shall be issued by the city for any major new c