Chapter 18.75
APPEALS/RECONSIDERATION

18.75.000    Chapter Contents

Sections:

18.75.020    Specific appeal procedures.

18.75.040    Appeals to hearing examiner.

18.75.060    Reconsideration of hearing examiner decision.

18.75.070    Clarification of hearing examiner decision.

18.75.080    No appeals to City Council.

18.75.100    Council action.

18.75.120    Appeal of City Council decision.

(Ord. 6514 §6, 2007, repealed section 18.75.080 and replaced with new section 18.75.080).

18.75.020 Specific appeal procedures

A.    Administrative Decision. Administrative decisions regarding the approval or denial of the following applications or determinations/interpretations may be appealed to the Hearing Examiner within fourteen (14) days, or twenty-one (21) days if issued with a SEPA threshold determination including a comment period, of the final staff decision using procedures outlined below and in OMC Chapter 18.82, Hearing Examiner (Refer to 18.72.080 for other appeal authorities).

1.    All Administrative Interpretations/Determinations

2.    Boundary Line Adjustments

3.    Home Occupation Permits

4.    Preliminary Short Plats

5.    Preliminary SEPA Threshold Determination (EIS required)

6.    Shoreline Exemptions and staff-level substantial development permits

7.    Sign Permits

8.    Variances, Administrative

9.    Building permits

10.    Engineering permits

11.    Application or interpretations of the Building Code

12.    Application or interpretations of the Housing Code

13.    Application or interpretations of the Uniform Fire Code

14.    Application or interpretations of the Uniform Code for the Abatement of Dangerous Buildings

15.    Application and interpretations of the Uniform Code for Building Conservation

16.    Land Use (Director) decisions

17.    Administrative decisions on impact fees

18.    A recommendation to Thurston County to deny a permit to repair or replace existing, failing on-site septic systems that meet the criteria set forth in OMC 13.08.020(2), as required by RCW 35.21.940

19.    Appeals of Drainage Manual Administrator decisions

B.    SEPA.

1.    The City establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

a.    Any agency or person may appeal the City’s conditioning, lack of conditioning or denial of an action pursuant to WAC Chapter 197-11. All such appeals shall be made to the Hearing Examiner and must be filed within seven (7) days after the comment period before the threshold decision has expired. This appeal and any other appeal of a land use action shall be considered together.

b.    The following threshold decisions or actions are subject to timely appeal.

i.    Determination of Significance. Appeal of a determination of significance (DS) or a claim of error for failure to issue a DS may only be appealed to the Hearing Examiner within that fourteen (14) day period immediately following issuance of such initial determination.

ii.    Determination of Nonsignificance or Mitigated Determination of Nonsignificance. Conditions of approval and the lack of specific conditions may be appealed to the Hearing Examiner within seven (7) calendar days after the SEPA comment period expires.

iii.    Environmental Impact Statement. A challenge to a determination of adequacy of a Final EIS may be heard by the Hearing Examiner in conjunction with any appeal or hearing regarding the associated project permit. Where no hearing is associated with the proposed action, an appeal of the determination of adequacy must be filed within fourteen (14) days after the thirty (30) day comment period has expired.

iv.    Denial of a proposal. Any denial of a project or non-project action using SEPA policies and rules may be appealed to the Hearing Examiner within seven (7) days following the final administrative decision.

c.    For any appeal under this subsection the City shall keep a record of the appeal proceedings, which shall consist of the following:

i.    Findings and conclusions; and

ii.    Testimony under oath; and

iii.    A taped or written transcript.

d.    Any procedural determination by the City’s responsible official shall carry substantial weight in any appeal proceeding.

2.    The City shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. See Chapter 18.78, Public Notification.

C.    Land Use Approval.

1.    The Director’s decisions may be appealed to the Hearing Examiner by any aggrieved or affected parties. All appeals shall be filed in writing with the Department within fourteen (14) days of the date of the decision being appealed. Where combined with an environmental threshold determination, such appeal period shall be extended to twenty-one (21) days.

2.    The Department shall send written notification of receipt of the appeal to the applicant and to all appropriate city departments prior to the date the Hearing Examiner will consider the matter.

3.    Any action taken by the Hearing Examiner which upholds, modifies or reverses a decision by the Director shall be final.

D.    Building and Fire Permits Appeals. For building or fire code appeals, the Hearing Examiner is authorized to appoint a master, an individual with appropriate professional experience and technical expertise, to hear such appeals and to prepare findings and conclusions for issuance by the Hearing Examiner.

E.    Takings and Substantive Due Process Review and Modifications.

1.    The Hearing Examiner is hereby authorized to hear, by way of appeal or upon review of a project permit application, all assertions of project-specific taking of property for public use without just compensation and/or the denial of substantive due process of law, and all challenges to imposition of conditions on a project of a similar nature such as any assertion that an open space dedication is not reasonably necessary as a direct result of a proposed development whether based on constitutional, statutory or common law. Failure to raise a specific challenge to such condition or exaction shall constitute a waiver of such issue and a failure to exhaust an administrative remedy.

2.    In deciding and resolving any such issue, the Examiner may consider all law applicable to the City. Should the Examiner determine that, but for a taking without just compensation or a violation of substantive due process of law, imposition of any such condition would be required by standard, regulation, or ordinance the Examiner shall so state in the decision and so report to the Olympia City Council. In lieu of failing to impose such condition, the Examiner shall first provide the City with due opportunity to provide just compensation. The Examiner shall specify a time period in which the Council shall elect to or not to provide just compensation. Upon notice of the election of the City Council not to provide such compensation, the Examiner is authorized to and shall, within fourteen (14) days, issue a decision modifying to whatever degree necessary such condition to eliminate the taking or violation of substantive due process.

(Ord. 7027 §35, 2016; Ord. 7024 §10, 2016; Ord. 6967 §40, 2015; Ord. 6514 §4, 2007; Ord. 6310 §50, 2004; Ord. 6273 §29, 2003; Ord. 6166 §1, 2001; Ord. 5830 §18, 1998; Ord. 5798 §18, 1998; Ord. 5570 §33, 1995; Ord. 5517 §1, 1995).

18.75.040 Appeals to hearing examiner

A.    Appellant. Appeals may be taken to the Hearing Examiner only by a party of record aggrieved or by any officer, department, board, council or commission of the city affected by any order, requirement, permit, decision or determination made by an administrative official in the administration or enforcement of this title or any amendment thereto. Such appeals shall be filed in writing with the Department on forms provided by the Department within fourteen (14) days after the date of decision. Appeals of a land use approval combined with environmental threshold determinations shall be filed in writing with the Department within twenty-one (21) days of the date of final decision. The Department shall promptly forward a copy of such appeal to the Examiner.

B.    Basis of Appeal and Relief Sought. Every appeal shall state in writing:

1.    How the appellant is or is likely to be harmed or prejudiced by the decision appealed from;

2.    How or in what particular respect the administrative official erred; and

3.    What relief or ruling is sought and how such ruling would eliminate or reduce harm to the appellant.

C.    Dismissal. Failure to state specific grounds of the appeal and relief sought may result in dismissal of such appeal. The city staff or any party may request dismissal of an appeal at any time with notice to all parties. Upon finding that the appeal fails to state cause to reverse or modify the decision or that the Examiner lacks jurisdiction to grant relief, the Examiner may dismiss such appeal without hearing. The Examiner shall state in writing whether such dismissal is with or without prejudice.

D.    Notice and Record. Upon the finding that an appeal has sufficient merit the Hearing Examiner shall set the time and place at which the matter will be heard. At least a ten (10) day notice of the time and place of such open record appeal hearing shall be given to the parties of record and to the official whose decision is being appealed. See OMC Chapter 18.78, Public Notification. The Department shall transmit to the Hearing Examiner a copy of all of the records pertaining to the decision being appealed, together with written reports as the Hearing Examiner deems pertinent.

E.    Waiver of Hearing. By agreement of all parties thereto, the appeal hearing may be waived. Such appeal may be decided by the Examiner on the basis of written briefs or memoranda.

F.    Standard of Review. In reviewing a decision including a recommendation of the Design Review Board, the Examiner shall give substantial weight to the recommendation of the Board. With regard to decisions of city staff, the Examiner shall accord due deference to the expertise and experience of the staff rendering such decision. The Examiner shall only grant the relief requested by an appellant upon finding that the appellant has established that:

1.    the staff engaged in unlawful procedures or failed to follow a prescribed procedure;

2.    the staff’s decision was an erroneous interpretation of the law;

3.    the decision is not supported by substantial evidence within the context of the whole record;

4.    the decision is a clearly erroneous application of the law to the facts;

5.    the decision is outside the authority or jurisdiction of the decision-maker;

6.    the decision violates the constitutional rights of the party seeking relief, or

7.    the decision is clearly in conflict with the City’s adopted plans, policies or ordinances.

G.    Decision. The decision of the Examiner shall be limited to those issues timely raised on appeal. The examiner may not reconsider or modify aspects of a project previously considered and settled by another final decision of the City. In exercising the powers granted herein, the Hearing Examiner may, in conformity with this title, reverse or affirm, wholly or in part, or may modify the order, requirements, decision or determination appealed, and may make such order, requirement, decision or determination as should be made, and, to that end, shall have all the powers of the officer from whom the appeal is being taken, insofar as the decision on the particular issue is concerned, and in making a determination the Hearing Examiner may hear any pertinent testimony and receive and consider any other evidence bearing on the case.

(Ord. 5570 §33, 1995; Ord. 5517 §1, 1995).

18.75.060 Reconsideration of hearing examiner decision

Decisions of the hearing examiner may be reconsidered. Further, prior to issuing a decision, the Examiner may reconvene any hearing or continue any other proceeding in such manner as the Examiner deems appropriate to ensure a fair, timely, and reasoned decision.

A.    After issuance of a final decision any party, including the Department of Community Planning and Development, may file a motion for reconsideration on an appeal to the Hearing Examiner in accordance with subsection (B) of this Section. Such motion must be filed within ten days of service of the final decision. The original of the motion for reconsideration shall be filed at the Community Planning and Development Permit Center with a copy to the Olympia City Attorney’s Office. At the same time, copies shall be served on all parties of record. Within five days of filing the motion for reconsideration, a party may file an answer to the motion for reconsideration without direction or request from the Hearing Examiner. The Hearing Examiner may require other parties to supply an answer. All answers to motions for reconsideration shall be served on all parties of record.

B.    A motion for reconsideration shall be based on at least one of the following grounds:

1.    Errors of procedure or misinterpretation of fact or law, material to the party seeking reconsideration;

2.    Irregularity in the hearing before the Hearing Examiner by which such party was prevented from having a fair hearing; or

3.    Clerical mistakes in the final decision and order.

C.    In response to a motion for reconsideration, the Hearing Examiner may deny the motion, modify its decision, or reopen the hearing. A motion is deemed denied unless the Hearing Examiner takes action within 20 days of the filing of the motion for reconsideration. A Hearing Examiner order on a motion for reconsideration is not subject to a motion for reconsideration.

D.    A decision in response to the petition for reconsideration shall constitute a final decision and order for purposes of judicial review. Copies of the final decision and order shall be served on each party or the party’s attorney or other authorized representative of record, unless the decision is deemed denied following the 20-day time frame set forth in Subsection C of this Section.

E.    The time for an appeal to court does not commence until disposition of the motion for reconsideration. If the Hearing Examiner takes no action under subsection (C) of this Section, the motion for reconsideration is deemed disposed at the end of the 20-day period. The filing of a motion for reconsideration is not a prerequisite for seeking judicial review.

(Ord. 6886 §27, 2013; Ord. 6514 §5, 2007; Ord. 6408 §33, 2006; Ord. 5570 §33, 1995; Ord. 5517 §1, 1995).

18.75.070 Clarification of hearing examiner decision

A.    Any interested party believing that a decision of the Hearing Examiner is ambiguous, vague, or internally inconsistent may request clarification of the decision by the Examiner. Such a request shall be submitted to the Department with the applicable fee and shall set forth the specific provision requiring additional clarity. The Department shall forward such request to the Examiner. Upon receipt of such a request, the Hearing Examiner may take action as the Examiner deems appropriate to the circumstances.

B.    A request for clarification shall not provide an opportunity for reconsideration of a decision nor for introduction of new evidence. Except as ordered by the Examiner, the filing of a request for clarification shall not toll any appeal period or delay issuance of any permit.

C.    When the Examiner determines that a clarification is in order, the Examiner may issue a supplemental or clarified decision. As deemed appropriate by the Examiner, the Examiner may order that the supplemental or clarified decision be subject to appropriate notice and an opportunity for appeal.

(Ord. 6408 §34, 2006; Ord. 5594 §24, 1996)

18.75.080 No Appeals to City Council

There are no appeals from the Hearing Examiner to the City Council.

(Ord. 6514 §6, 2007; Ord. 6496 §2, 2007; Ord. 5989 §1, 2000; Ord. 5570 §33, 1995; Ord. 5517 §1, 1995).

18.75.100 Council action

A.    Except for decisions regarding planned residential developments, master planned developments, rezones and related ordinances, action on any appeal before the City Council shall be taken by the adoption of a motion by the Council. When taking any final action, the Council shall make and enter written conclusions which support its action. The City Council may adopt or modify the Examiner’s conclusions, based on the findings of fact in the record.

B.    The decision of the Council shall be final upon adoption of such written findings and conclusions and approval of any necessary ordinance.

C.    The action of the Council, approving, modifying, or rejecting a decision of the Hearing Examiner shall be conclusive, unless within twenty-one (21) calendar days from the date of the final Council action an aggrieved party or person files a land use petition with the Superior Court of Washington for Thurston County for the purpose of review of the action taken.

(Ord. 5989 §2, 2000; Ord. 5830 §9, 1998; Ord. 5570 §33, 1995; Ord. 5539 §15, 1995; Ord. 5517 §1, 1995).

18.75.120 Appeal of City Council decision

A.    State Growth Management Hearings Board. The action of the City Council approving Comprehensive Plan amendments shall be final and conclusive, unless appealed to the Growth Management Hearings Board as provided under the Revised Code of Washington. The cost of preparing and certifying the transcript of records ordered by the Board shall be borne by appellant.

B.    Thurston County Superior Court. Consistent with the requirements and jurisdiction of chapter 36.70C RCW, the action of the City Council on a permit, shall be final and conclusive, unless within twenty-one (21) calendar days from the date of the Council’s final action an aggrieved party files a land use petition in the Superior Court of Washington for Thurston County. The cost of preparing and certifying the transcript of records ordered by the court shall be borne by appellant.

(Ord. 6514 §7, 2007; Ord. 5570 §33, 1995; Ord. 5517 §1, 1995).