Chapter 30.72
TYPE 2 PERMITS AND DECISIONS - HEARING EXAMINER

Sections:

30.72.010    Purpose and applicability.

30.72.020    Type 2 permits and decisions.

30.72.025    Type 2 process overview.

30.72.030    Notice and timing of open record hearing.

30.72.040    Report of department and transfer of file.

30.72.050    Open record hearing procedure on Type 2 application.

30.72.060    Hearing examiner’s decision on Type 2 application.

30.72.062    Notice of hearing examiner’s decision on Type 2 application.

30.72.065    Reconsideration of Type 2 decision.

30.72.070    Appeal of Type 2 decision.

30.72.075    Summary dismissal of a Type 2 appeal.

30.72.080    Requirements for filing a Type 2 appeal.

30.72.085    Effect of appeal.

30.72.090    Consolidation of multiple appeals.

30.72.100    Notice of Type 2 appeal.

30.72.110    Type 2 closed record appeal hearing.

30.72.120    County council decision on Type 2 appeal.

30.72.125    Effect of remand.

30.72.130    Effect and appeal of final council decision on Type 2 appeal.

30.72.140    Vacation of permits or approvals.

30.72.150    Review or revocation of certain permits or approvals.

30.72.010 Purpose and applicability.

This chapter describes decision-making and appeal procedures and applies to all Type 2 permits and decisions.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.020 Type 2 permits and decisions.

The following are processed as Type 2 permits and decisions:

(1) Conditional use permit;

(2) Rezones (site-specific);

(3) Official site plan or preliminary plan approval when combined with a rezone request in FS, IP, BP, PCB, T, RB, RFS, and RI zones;

(4) Flood hazard area variance, if combined with a Type 2 application;

(5) Preliminary subdivision approval;

(6) Planned residential developments;

(7) Short subdivision with dedication of a new public road;

(8) Shoreline substantial development, conditional use, or variance permit if forwarded pursuant to SCC 30.44.210;

(9) Shoreline substantial development permit rescission pursuant to SCC 30.44.295;

(10) Boundary line adjustments as provided in SCC 30.41E.020; and

(11) Development applications in the UC zone as provided in SCC 30.34A.180(2).

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended by Amended Ord. 09-079, May 12, 2010, Eff date May 29, 2010; Amended by Amended Ord. 12-025, June 6, 2012, Eff date July 27, 2012; Amended by Amended Ord. 13-050, Aug. 28, 2013, Eff date Sept. 19, 2013; Amended by Amended Ord. 13-007, Sep. 11, 2013, Eff date Oct. 3, 2013; Amended by Ord. 15-005, March 18, 2015, Eff date April 2, 2015)

30.72.025 Type 2 process overview.

Type 2 decisions are made by the hearing examiner based on a report from the department and information received at an open record hearing. The hearing examiner’s decision on a Type 2 application is a final decision subject to appeal to the county council, except for shoreline permits issued under chapter 30.44 SCC. Appeals of shoreline substantial development permits, shoreline conditional use permits, and shoreline variances shall comply with SCC 30.44.250.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Emergency Ordinance No. 05-030, April 18, 2005, Eff date April 18, 2005; Amended by Amended Ord. 12-025, June 6, 2012, Eff date July 27, 2012))

30.72.030 Notice and timing of open record hearing.

(1) Notice of the open record public hearing on a Type 2 application shall be provided at least 15 days prior to the hearing date.

(2) In setting hearing dates, the department shall consider the time necessary for comment and appeal periods on any related SEPA decision and for the hearing examiner to conduct the hearing and issue a decision within the time period established in SCC 30.70.110.

(3) Notice of the public hearing shall contain a description of the proposal and list of permits requested, the county file number and contact person, the date, time, and place for the hearing, and any other information determined to be appropriate by the department.

(4) Notice shall be provided by publishing, mailing, and posting in the manner prescribed by SCC 30.70.045.

(5) If the appeal period for a SEPA threshold determination has not expired when the notice of the hearing is provided, the notice shall state that any timely SEPA appeal shall be heard at the scheduled open record hearing.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.040 Report of department and transfer of file.

(1) Following expiration of required comment periods on the notice of application, and to complete project review, the department shall coordinate and assemble the reviews of other county departments and governmental agencies having an interest in the application. The department shall prepare a report describing how the application meets or fails to meet the applicable decision criteria. The report shall include recommended conditions, if appropriate, and a recommendation to the hearing examiner on the action to be taken on the application.

(2) The report shall be filed with the hearing examiner and made available for public review and copying at least seven days before the open record hearing.

(3) The department shall transfer the file to the hearing examiner’s office concurrently with transmittal of the report.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.050 Open record hearing procedure on Type 2 application.

(1) The hearing examiner shall conduct an open record hearing on the Type 2 application.

(2) The department shall provide a summary of the report of the department and the contents of the project file.

(3) Any person may participate in the hearing and shall have the following rights, as limited by the hearing examiner rules of procedure:

(a) To call, examine, and cross-examine witnesses;

(b) To introduce documentary or physical evidence; and

(c) To present rebuttal evidence.

(4) All hearing testimony shall be taken under oath.

(5) An electronic transcript shall be made of the open record hearing.

(6) When an appeal of a Type 1 decision related to the Type 2 application has been filed, the open record hearing shall serve as both the appeal hearing and the predecision hearing.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.060 Hearing examiner’s decision on Type 2 application.

(1) A decision on the Type 2 application shall be issued within 15 working days of the conclusion of a hearing, and not later than 120 calendar days after a determination of completeness pursuant to SCC 30.70.110, unless the appellant agrees in writing to extend the time period or the time period has been extended under some other authority.

(2) If an appeal of a Type 1 administrative decision was heard at the open record predecision hearing, a final decision on the Type 1 appeal shall be issued concurrently with the Type 2 decision.

(3) The hearing examiner may grant, grant in part, return to the applicable department and applicant for modification, deny without prejudice, deny, or grant with such conditions or modifications as the hearing examiner finds appropriate based on the applicable decision criteria.

(4) The decision shall include findings of fact based upon the record and conclusions of law therefrom which support the decision.

(5) Reconsideration of the hearing examiner’s decision may be requested only in accordance with SCC 30.72.065.

(6) The hearing examiner’s decision shall include information on, and any applicable time limitations for, requesting reconsideration or for appealing the decision.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended by Amended Ord. 13-043, June 19, 2013, Eff date June 30, 2013)

30.72.062 Notice of hearing examiner’s decision on Type 2 application.

Notice of the hearing examiner’s decision, which may be the decision itself, shall be provided as follows:

(1) By regular mail or inter-office mail, as appropriate, to the applicant and other parties of record; and

(2) To the clerk of the council.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.065 Reconsideration of Type 2 decision.

(1) Any aggrieved party of record may file a written petition for reconsideration with the hearing examiner within 10 calendar days following the date of the hearing examiner’s written decision. The petitioner for reconsideration shall mail or otherwise provide a copy of the petition for reconsideration to all parties of record on the date of filing. The timely filing of a petition for reconsideration shall stay the hearing examiner’s decision until such time as the petition has been disposed of by the hearing examiner.

(2) The grounds for seeking reconsideration shall be limited to the following:

(a) The hearing examiner exceeded the hearing examiner’s jurisdiction;

(b) The hearing examiner failed to follow the applicable procedure in reaching the hearing examiner’s decision;

(c) The hearing examiner committed an error of law;

(d) The hearing examiner’s findings, conclusions and/or conditions are not supported by the record;

(e) New evidence is discovered which could not reasonably have been produced at the open record hearing and which is material to the decision; or

(f) The applicant proposed changes to the application in response to deficiencies identified in the decision.

(3) The petition for reconsideration must:

(a) Contain the name, mailing address, and daytime telephone number of the petitioner, or the petitioner’s representative, together with the signature of the petitioner or of the petitioner’s representative;

(b) Identify the specific findings, conclusions, actions, and/or conditions for which reconsideration is requested;

(c) State the specific grounds upon which relief is requested;

(d) Describe the specific relief requested; and

(e) Where applicable, identify the specific nature of any newly discovered evidence or changes proposed.

(4) The petition for reconsideration shall be decided by the same hearing examiner who rendered the decision, if reasonably available. The hearing examiner shall provide notice of the decision on reconsideration in accordance with SCC 30.72.062. Within 15 working days the hearing examiner shall:

(a) Deny the petition in writing;

(b) Grant the petition and issue an amended decision in accordance with the provisions of SCC 2.02.155 following reconsideration;

(c) Accept the petition and give notice to all parties of record of the opportunity to submit written comment. Parties of record shall have 10 calendar days from the date of such notice in which to submit written comments. Within 15 working days after the close of the comment period, the hearing examiner shall either issue a decision in accordance with the provisions of SCC 2.02.155 or issue an order reopening the hearing. If the hearing is reopened, the hearing examiner’s office shall mail notice not less than 15 calendar days prior to the hearing date to all parties of record; or

(d) Accept the petition and reopen the open record hearing to consider new evidence, proposed changes in the application and/or the arguments of the parties. Notice of such reopened hearing shall be mailed by the hearing examiner’s office not less than 15 calendar days prior to the hearing date to all parties of record. The hearing examiner shall issue a decision following the reopened hearing in accordance with the provisions of SCC 2.02.155.

(5) A decision which has been subjected to the reconsideration process shall not again be subject to reconsideration.

(6) The hearing examiner may consolidate for action, in whole or in part, multiple petitions for reconsideration of the same decision where such consolidation would facilitate procedural efficiency.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended by Amended Ord. 13-043, June 19, 2013, Eff date June 30, 2013)

30.72.070 Appeal of Type 2 decision.

(1) All Type 2 hearing examiner decisions may be appealed to the county council except for shoreline substantial development permits and permit rescissions, shoreline conditional use permits, and shoreline variances, which may be appealed to the state shorelines hearings board pursuant to SCC 30.44.250 and RCW 90.58.180.

(2) An appeal to the county council may be filed by any aggrieved party of record. Where the reconsideration process of SCC 30.72.065 has been invoked, no appeal may be filed until the reconsideration petition has been disposed of by the hearing examiner. An aggrieved party need not file a petition for reconsideration but may file an appeal directly to the county council. If a petition for reconsideration is filed, issues subsequently raised by that party on appeal to the county council shall be limited to those issues raised in the petition for reconsideration.

(3) Any aggrieved party of record may appeal a decision on reconsideration.

(4) Appeals shall be addressed to the county council and shall be filed in writing with the department within 14 days following the date of the hearing examiner’s decision.

(5) A filing fee of $500 shall be submitted with each appeal filed; provided that the fee shall not be charged to a department of the county. The filing fee shall be refunded in any case where an appeal is summarily dismissed in whole without hearing under SCC 30.72.075.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended Ord. 03-014, March 19, 2003, Eff date April 14, 2003; Amended by Amended Ord. 12-025, June 6, 2012, Eff date July 27, 2012))

30.72.075 Summary dismissal of a Type 2 appeal.

(1) The council may summarily dismiss an appeal in whole or in part without hearing if it determines that the appeal is untimely, incomplete, without merit on its face, frivolous, beyond the scope of the council’s jurisdiction, or brought merely to secure a delay. The council may also summarily dismiss an appeal based on lack of standing after allowing the appellant a reasonable period in which to reply to the challenge.

(2) Except in extraordinary circumstances, summary dismissal orders shall be issued within 15 days following receipt of either a complete appeal or a request for issuance of such an order, whichever is later.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.080 Requirements for filing a Type 2 appeal.

(1) An appeal must be in writing and contain the following:

(a) A detailed statement of the grounds for appeal and the facts upon which the appeal is based, including references to specific hearing examiner findings or conclusions, and to exhibits or oral testimony in the record;

(b) Argument in support of the appeal; and

(c) The name, mailing address, and daytime telephone number of each appellant, or each appellant’s representative, together with the signature of at least one of the appellants or of the appellants’ representative.

(2) The grounds for filing an appeal shall be limited to the following:

(a) The decision exceeded the hearing examiner’s jurisdiction;

(b) The hearing examiner failed to follow the applicable procedure in reaching the decision;

(c) The hearing examiner committed an error of law; or

(d) The hearing examiner’s findings, conclusions, and/or conditions are not supported by substantial evidence in the record.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.085 Effect of appeal.

Timely filing of an appeal shall stay the effective date of the hearing examiner’s decision until such time as the appeal is decided by the council or withdrawn.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.090 Consolidation of multiple appeals.

The council shall consolidate multiple appeals of the same action.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.100 Notice of Type 2 appeal.

(1) Within seven calendar days following the close of the appeal period and upon receipt of a timely filed and complete appeal, the council clerk will mail notice of the appeal and of the date, time, and place of the closed record appeal hearing to all parties of record.

(2) The dates for filing written arguments with the council shall be included in the hearing notice as follows:

(a) Parties of record may file written arguments with the council until 5:00 p.m. on the fourteenth day following the date of the hearing notice mailed pursuant to SCC 30.72.100(1); and

(b) An appellant may file written rebuttal arguments with the council until 5:00 p.m. on the twenty-first day following the date of the hearing notice mailed pursuant to SCC 30.72.100(1).

(3) The hearing notice shall be sent for publication in the official county newspaper the same day the notice of appeal is sent to parties of record.

(4) Within five days of mailing of the hearing notice pursuant to SCC 30.72.100(1), the applicant shall conspicuously post notice of the hearing on the signs in accordance with of SCC 30.70.045.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.110 Type 2 closed record appeal hearing.

(1) An appeal before the county council shall be conducted as a closed record appeal. The hearing shall be limited to the record from the hearing examiner and all written argument timely filed with the council. New evidence shall not be allowed unless specifically requested by the council and consistent with the limitation of subsection (2) below.

(2) Appeal issues shall be limited to those expressly raised in the written appeal. No new appeal issues may be raised or argued after the close of the time period for filing the appeal.

(3) Parties of record may file written argument according to the dates set forth in the notice of the appeal hearing.

(4) Any party of record may present oral argument at the hearing.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.120 County council decision on Type 2 appeal.

(1) The council’s decision shall be issued in writing and entered into the record of the proceedings. The decision of the county council shall set forth findings and conclusions that support the council decision and may adopt any or all of the findings or conclusions of the hearing examiner.

(2) The council may affirm the decision of the hearing examiner, reverse in whole or in part, or may remand the matter to the hearing examiner in accordance with the council’s findings and conclusions.

(3) The council clerk shall mail copies of the decision to all parties of record within 15 calendar days after the conclusion of the hearing, but not later than 60 calendar days from the last day of the applicable appeal period, unless the applicant agrees to extend the time period or the time period is extended under some other authority.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.125 Effect of remand.

(1) The effect of remand on the decision of the hearing examiner shall be specified in the county council’s decision. A decision by the hearing examiner in response to the remand order shall be issued in the same manner as the original decision.

(2) A remand is not a final decision on the appeal, but shall serve as a decision for purposes of applicable time limitations contained in SCC 30.72.120(3). Issuance of the decision by the hearing examiner in response to the remand order shall commence a new appeal period pursuant to SCC 30.72.070. Issues on appeal shall be limited to the issues remanded to the hearing examiner.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.130 Effect and appeal of final council decision on Type 2 appeal.

(1) The county council’s decision on a Type 2 appeal is the final decision of the county except where a matter has been remanded to the hearing examiner. A final council decision may be appealed to superior court within 21 days of issuance of the decision in accordance with chapter 36.70C RCW.

(2) The cost of transcribing the record of proceeding, of copying photographs, video tapes and any oversized documents, and of staff time spent in copying and assembling the record and preparing the return for filing with the court shall be borne by the party filing the petition. If more than one party appeals the decision, the costs of preparing the record shall be borne equally among the appellants.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.72.140 Vacation of permits or approvals.

(1) Requests to vacate a permit shall be made in writing to the department of planning and development services.

(2) The director shall determine if the conditions in 30.42C.208 are present prior to authorizing the vacation.

(3) Vacation of any permit shall be documented by the filing of a notice of land use permit vacation with the county auditor on a form provided by the department of planning and development services.

(Added Amended Ord. 05-022, May 11, 2005, Eff date May 28, 2005)

30.72.150 Review or revocation of certain permits or approvals.

(1) If the director determines that a permit or approval is in material violation of this title, the director may initiate proceedings before the hearing examiner to review or revoke the permit or approval, in whole or in part.

(2) The hearing examiner shall hold a hearing in accordance with SCC 30.71.100. The director shall provide notice in accordance with SCC 30.70.050.

(3) The hearing examiner, upon good cause shown, may direct the department to issue a stop work order to temporarily stay the force and effect of all or any part of an issued permit or approval until the final decision of the hearing examiner is issued.

(Added Amended Ord. 05-022, May 11, 2005, Eff date May 28, 2005)