Chapter 18.56
LAND USE REVIEW PROCEDURES

Sections

18.56.010    Purpose and intent.

18.56.020    Framework for decision.

18.56.030    Type I land use action – General.

18.56.040    Type II land use action – General.

18.56.050    Type III land use action – General.

18.56.060    Type IV land use action – General.

18.56.070    Type V land use action – General.

18.56.080    Type VI land use action – General.

18.56.085    Repealed.

18.56.090    Application.

18.56.100    Pre-application meetings.

18.56.110    Contents of applications.

18.56.120    Acceptance for vesting.

18.56.130    Notice of complete application.

18.56.140    Public notice of proposed land use action.

18.56.150    Review process for Type I land use action.

18.56.160    Review process for Type II land use action.

18.56.170    Review process for Type III land use action.

18.56.180    Review process for Type IV land use action.

18.56.190    Review process for Type V land use action.

18.56.200    Review process for Type VI land use action.

18.56.205    Repealed.

18.56.210    Written report or decision.

18.56.220    Procedures for open record public hearings.

18.56.230    Procedures for closed record appeal hearings.

18.56.240    Reconsideration.

18.56.250    Remand.

18.56.260    Final decision.

18.56.270    Appeals.

18.56.010 Purpose and intent.

The purpose of this chapter is to establish standard procedures for land use and related development decisions made by the city of Des Moines. The procedures are designed to promote timely and informed public participation, eliminate redundancy in the application, land use review, and appeal processes, minimize delay and expense, and result in land use actions that further the city goals, policies, and strategies as set forth in the City of Des Moines Comprehensive Plan. As required by RCW 36.70B.060, as presently constituted or as may be subsequently amended, these procedures provide for an integrated and consolidated land use review process. The procedures integrate the environmental review process specified in Title 16 DMMC (Environment) with the procedures for land use actions specified in Title 14 DMMC (Buildings and Construction), Title 17 DMMC (Subdivisions), and Title 18 DMMC (Zoning), and provide for the consolidation of appeal processes for land use actions. The review procedures specified by Title 17 DMMC (Subdivisions) for a land use action authorized by that title shall take precedence over the procedures specified by this chapter. [Ord. 1174 § 1, 1996.]

18.56.020 Framework for decision.

(1) The scope of a land use action covered by this chapter shall be limited as specified by RCW 36.70B.030 as presently constituted or as may be subsequently amended.

(2) Except when a land use action is categorically exempt from SEPA, environmental review shall be conducted concurrently with review of other proposed land use actions requested by an applicant. Integrated and consolidated review shall be provided as required by RCW 36.70B.120 and 36.70B.140 as presently constituted or as may be subsequently amended.

(3) As allowed by RCW 36.70B.140(1) as presently constituted or as may be subsequently amended, the following land use actions are not subject to the provisions of RCW 36.70B.070, 36.70B.080, 36.70B.090, 36.70B.110, 36.70B.120, and 36.70B.130 because the city council has determined that these projects present special circumstances that warrant a review process different from the process specified by this chapter:

(a) Business park master plans;

(b) Street vacations and other actions relating to use of public areas or facilities;

(c) Type VI land use actions; and

(d) Abatement of nonconforming uses.

(4) As authorized by RCW 36.70B.140(2) as presently constituted or as may be subsequently amended, the following Type I land use actions shall not be subject to the provisions of RCW 36.70B.060, 36.70B.110, 36.70B.120, and 36.70B.130 as presently constituted or as may be subsequently amended:

(a) Lot line adjustments.

(b) Construction permits required under Title 14 DMMC that are categorically exempt from environmental review under chapter 16.04 DMMC (SEPA Rules), or for which environmental review has been completed in conjunction with other project permits.

(5) Land use actions are classified into six types, based upon the entity responsible for the decision, the amount of discretion exercised by the decisionmaker, the degree of impact associated with the decision, the amount and type of public input sought, and the type of appeal available. The six categories of land use actions are as follows:

(a) Type I. Administrative decision made without legal requirement for public comment.

(b) Type II. Administrative decision made after legally required opportunity for public comment.

(c) Type III. Quasi-judicial and other decisions by hearing examiner made after legally required opportunity for public comment.

(d) Type IV. Quasi-judicial and other nonlegislative decisions by city council made after legally required opportunity for public comment.

(e) Type V. Quasi-judicial and other nonlegislative decisions by city council made without legal requirement for public comment.

(f) Type VI. Legislative decision by city council made after legally required opportunity for public comment.

(6) The land use review procedures specified by Title 17 DMMC (Subdivisions) for a land use action explicitly covered by that title shall control over the procedures specified by this chapter. [Ord. 1341 § 1, 2004: Ord. 1287 § 1, 2001: Ord. 1174 § 2, 1996.]

18.56.030 Type I land use action – General.

A Type I land use action is an administrative land use decision made by the community development director. Public notice of application is not required for a Type I land use action. The following actions are designated as Type I land use actions:

(1) Sign special use permit.

(2) Comprehensive sign design permit.

(3) Design review.

(4) Lot line adjustment.

(5) On-site parking exception.

(6) Accessory living quarters development permit.

(7) Reduction of the minimum dimension of on-site parking.

(8) Waiver of zoning requirement as specified by chapter 18.61 DMMC.

(9) Building height bonus.

(10) Determination that the action is categorically exempt from State Environmental Policy Act (SEPA) Rules.

(11) Interpretation of Title 14 DMMC (Buildings and Construction), Title 16 DMMC (Environment), Title 17 DMMC (Subdivisions), and Title 18 DMMC (Zoning).

(12) Construction permits required under Title 14 DMMC (Buildings and Construction).

(13) Actions not specifically listed in this or any other section of this chapter and that are administrative land use actions made without legal requirement for public comment. [Ord. 1378 § 13, 2006: Ord. 1267 § 12, 2000: Ord. 1174 § 3, 1996.]

18.56.040 Type II land use action – General.

A Type II land use action is an administrative land use decision made by the community development director. Public notice of application is required for a Type II land use action. The following actions are designated as Type II land use actions:

(1) Determination of nonsignificance (DNS) and mitigated DNS.

(2) Determination of significance (DS).

(3) Determination of the adequacy of a final environmental impact statement.

(4) Binding site plan with no more than four lots.

(5) Short subdivision.

(6) Alteration or vacation of short subdivision without public dedication.

(7) Alteration or vacation of binding site plan with no more than four lots.

(8) Townhouse development with no more than four lots.

(9) Community development director approval, conditional approval, or denial of a project based upon chapter 16.04 DMMC (SEPA Rules).

(10) Actions not specifically listed in this or any other section of this chapter and that are administrative land use actions taken after a legally required opportunity for public comment. [Ord. 1197 § 35, 1997; Ord. 1174 § 4, 1996.]

18.56.050 Type III land use action – General.

A Type III land use action includes quasi-judicial land use decisions and other land use decisions made by the hearing examiner. Except as specified below, public notice of application is required for a Type III land use action. The following actions are designated as Type III land use actions:

(1) Variance.

(2) Conditional use permit.

(3) Environmentally critical area development exception.

(4) Shoreline substantial development permit and revisions.

(5) Modification of parking provisions.

(6) Hearing examiner approval, conditional approval, or denial of a project based upon chapter 16.04 DMMC (SEPA Rules).

(7) Appeal of an administrative land use decision, except that appeal of a decision of the building official is limited to interpretation or application of the building code, mechanical code, electrical code, and plumbing code. Public notice requirements for appeal of an administrative land use decision are provided by DMMC 18.94.150.

(8) Actions not specifically listed in this or any other section of this chapter and that are quasi-judicial land use actions delegated to the hearing examiner by the city council. [Ord. 1174 § 5, 1996.]

18.56.060 Type IV land use action – General.

A Type IV land use action includes quasi-judicial land use decisions and other nonlegislative land use decisions made by the city council. Public notice of application is required for a Type IV land use action. The following actions are designated as Type IV land use actions:

(1) Zoning map amendment (rezone).

(2) Unclassified use permit.

(3) Preliminary planned unit development.

(4) Business park master plan.

(5) Final binding site plan for a business park master plan.

(6) Subdivision – preliminary plat.

(7) Preliminary modified subdivision.

(8) Preliminary alteration or vacation of subdivision.

(9) Preliminary alteration or vacation of short subdivision with public dedication.

(10) Preliminary alteration or vacation of binding site plan with public dedication.

(11) Preliminary alteration or vacation of binding site plan with more than four lots and not involving public dedication.

(12) Preliminary binding site plan with more than four lots.

(13) Preliminary townhouse development with more than four lots.

(14) Shoreline substantial development with an environmental impact statement.

(15) Shoreline conditional use.

(16) Shoreline variance.

(17) City council approval, conditional approval, or denial of a project based upon chapter 16.04 DMMC (SEPA Rules).

(18) Actions not specifically listed in this or any other section of this chapter and that are quasi-judicial land use actions made by the city council following a legally required opportunity for public comment. [Ord. 1341 § 2, 2004: Ord. 1287 § 2, 2001: Ord. 1197 § 36, 1997; Ord. 1174 § 6, 1996.]

18.56.070 Type V land use action – General.

A Type V land use action includes quasi-judicial land use decisions and other nonlegislative land use decisions made by the city council. Public notice of application is not required for a Type V land use action. The following actions are designated as Type V land use actions:

(1) Textual code amendment of Title 14 DMMC (Buildings and Construction) and Title 16 DMMC (Environment).

(2) Final planned unit development.

(3) Subdivision – final plat.

(4) Final modified short subdivision.

(5) Final modified subdivision.

(6) Final alteration or vacation of subdivision.

(7) Final alteration or vacation of short subdivision with public dedication.

(8) Final alteration or vacation of binding site plan with public dedication.

(9) Final alteration or vacation of binding site plan with more than four lots and not involving a public dedication.

(10) Final binding site plan with more than four lots.

(11) Final townhouse development with more than four lots.

(12) Actions not specifically listed in this or any other section of this chapter and that are quasi-judicial land use actions made by the city council without a legal requirement for public comment. [Ord. 1197 § 37, 1997; Ord. 1174 § 7, 1996.]

18.56.080 Type VI land use action – General.

A Type VI land use action is a legislative land use decision made by the city council. Public notice of application is required for a Type VI land use action. The following actions are designated as Type VI land use actions:

(1) Textual code amendment of Title 17 DMMC (Subdivisions) and Title 18 DMMC (Zoning).

(2) Area-wide rezones.

(3) Comprehensive plan adoption or amendment.

(4) Actions not specifically listed in this or any other section of this chapter and that are legislative land use actions made by the city council. [Ord. 1174 § 8, 1996.]

18.56.085 Type VII land use action – General.

Repealed by Ord. 1341. [Ord. 1287 § 3, 2001.]

18.56.090 Application.

(1) The city shall integrate its land use review and environmental review processes in order to avoid unnecessary duplication or delay. When a proposed development requires more than one land use action, the applicant may request concurrent review of all proposed land use actions.

(2) All applications for land use actions and other city approvals specified in Title 14 DMMC (Buildings and Construction), Title 16 DMMC (Environment), Title 17 DMMC (Subdivisions), and Title 18 DMMC (Zoning) shall be submitted on forms specified by the community development department. All applications shall be authorized by the property owner. [Ord. 1174 § 9, 1996.]

18.56.100 Pre-application meetings.

(1) Informal Pre-Application Meetings. Applicants for a land use action may participate in an informal meeting prior to submittal of the application for land use action or the formal pre-application meeting. The purpose of the meeting is to discuss, in general terms, the proposed land use action, alternatives, required approvals, and the land use action process.

(2) Formal Pre-Application Meetings. Unless waived by the community development director, potential applicants or their designees are required to attend a formal pre-application meeting for all Type III, Type IV, and Type VI land use actions. The purpose of the meeting is to discuss the nature of the proposed development, application and approval requirements, fees, review process and schedule, and applicable policies and regulations. As appropriate, the community development director shall invite representatives of affected agencies, such as other city departments and special purpose districts, to attend any formal pre-application meeting. This meeting requirement should be deemed waived in the event the community development director or the community development director’s designee is unavailable to meet within 10 days of a request for such meeting. [Ord. 1341 § 3, 2004: Ord. 1287 § 4, 2001: Ord. 1174 § 10, 1996.]

18.56.110 Contents of applications.

(1) All applications for land use actions under Title 14 DMMC (Buildings and Construction), Title 16 DMMC (Environment), Title 17 DMMC (Subdivisions), and Title 18 DMMC (Zoning) shall include the information specified in the applicable title. The property owner shall sign all applications or provide written authorization of the requested land use action. The community development director may require additional information as reasonably necessary to fully and properly evaluate the proposed land use action.

(2) The applicant may submit consolidated applications for concurrent review, or phase application submittal for consecutive review and approval. [Ord. 1174 § 11, 1996.]

18.56.120 Acceptance for vesting.

(1) An application for a proposed land use action shall not serve to vest any development rights until the community development director determines the application is complete as specified by this code.

(2) Applications found to include material errors shall be deemed withdrawn and subsequent submittals shall be treated as a new application and shall require a new application fee.

(3) Applicant-generated requests for revision(s), i.e., those requests which are not made in response to staff review or public appeal, that result in a substantial change to the proposed land use action, as determined by the community development director, shall be treated as a new application as of the date of receipt of the revision by the community development department and shall require a new application fee. [Ord. 1174 § 12, 1996.]

18.56.130 Notice of complete application.

(1) An application for land use action is complete for purposes of this section when it contains all of the following:

(a) A completed application form.

(b) All applicable fees.

(c) Written authorization of the property owner.

(d) A completed environmental checklist for projects subject to review under the State Environmental Policy Act (SEPA).

(e) Information required in applicable titles of the Des Moines Municipal Code.

(2) Notice of complete application shall be provided as provided in RCW 36.70B.070 as presently constituted or as may be subsequently amended.

(3) For the purposes of this section, applications will only be deemed “received” if filed during regular business hours with the appropriate department and date-stamped by a city official authorized to accept such applications.

(4) More than one request for additional information may be required by the community development director prior to the issuance of a notice of complete application. The community development director shall attempt to minimize the number of requests for additional information. The applicant shall attempt to provide the requested information in a complete and prompt manner. [Ord. 1174 § 13, 1996.]

18.56.140 Public notice of proposed land use action.

(1) Upon a determination that a complete application for a land use action has been filed, the community development director shall issue a notice of proposed land use action as required by RCW 36.70B.110 as presently constituted or as may be subsequently amended.

(2) The notice of proposed land use action shall be provided as specified by Article V of chapter 16.04 DMMC (Commenting), DMMC 18.94.150 (Notice of hearing – Required), DMMC 18.94.160 (Notice of hearing – Content), DMMC 18.94.170 (Persons entitled to notice), and DMMC 18.94.180 (Notice of hearing – When given).

(3) Unless an open record public hearing is required, public notice of a land use action is not required for a Type I land use action or an action categorically exempt under chapter 16.04 DMMC.

(4) The notice of proposed land use action shall indicate that a 15-day public comment period is provided.

(5) Written comment in response to a notice of proposed land use action shall be provided to the community development department during the 15-day public comment period.

(6) If allowed by chapter 197-11 WAC as presently constituted or as may be subsequently amended, notice of proposed land use action may be combined with notice of proposed DNS for the purpose of consolidating comment periods. [Ord. 1174 § 14, 1996.]

18.56.150 Review process for Type I land use action.

(1) The community development director may approve, approve with conditions, or deny a Type I land use action without public notice.

(2) The decision of the community development director shall be effective on the date issued.

(3) The community development director’s decision regarding a Type I land use action is appealable to the hearing examiner as provided in DMMC 18.94.113. [Ord. 1174 § 15, 1996.]

18.56.160 Review process for Type II land use action.

(1) Upon conclusion of the 15-day public comment period, the community development director may approve, approve with conditions, or deny a Type II land use action subject to applicable public notice and appeal provisions.

(2) The community development director’s decision regarding a Type II land use action shall be effective on the date issued.

(3) Except as provided by subsections (4) and (5) of this section, the community development director’s decision regarding a Type II land use action is appealable to the hearing examiner as provided in DMMC 18.94.113.

(4) A determination of significance (DS) is not appealable to the hearing examiner or the city council and may be appealed by filing a land use petition with the superior court of Washington for King County as provided by chapter 36.70C RCW, as presently constituted or as may be subsequently amended.

(5) Within the Pacific Ridge area, a SEPA determination is not appealable to the hearing examiner or the city council and may be appealed by filing a land use petition with the superior court of Washington for King County as provided by chapter 36.70C RCW, as presently constituted or as may be subsequently amended. [Ord. 1267 § 13, 2000: Ord. 1217 § 20, 1998: Ord. 1174 § 16, 1996.]

18.56.170 Review process for Type III land use action.

(1) Upon conclusion of the 15-day comment period and any applicable SEPA appeal period, the hearing examiner may approve, approve with conditions, or deny a Type III land use action as specified by chapter 18.94 DMMC (Hearing examiner code).

(2) The hearing examiner’s decision regarding a Type III land use action is appealable to the Superior Court of Washington for King County as specified by DMMC 18.94.260 (Appeals from decision of hearing examiner). [Ord. 1174 § 17, 1996.]

18.56.180 Review process for Type IV land use action.

(1) The planning agency shall conduct a public meeting for review of the proposed land use action. The planning agency may recommend approval, approval with conditions or amendments, or denial of a Type IV land use action. The recommendation(s) of the planning agency shall be forwarded to the city council.

(2) Upon conclusion of the 15-day comment period and any applicable SEPA appeal period, the city council may approve, approve with conditions, or deny a Type IV land use action upon compliance with the procedural requirements of chapter 18.94 DMMC (Hearing examiner code).

(3) The city council’s decision regarding a Type IV land use action is appealable to the Superior Court of Washington for King County as specified by DMMC 18.94.300 (Appeal from decision of the city council). [Ord. 1174 § 18, 1996.]

18.56.190 Review process for Type V land use action.

(1) The city council may approve, approve with conditions, or deny a Type V land use action without public notice other than the notice requirements for public meetings.

(2) The decision of the city council shall be effective on the date final action is taken during a public meeting or as otherwise provided by law.

(3) The city council’s decision regarding a Type V land use action is appealable the Superior Court of Washington for King County as specified by DMMC 18.94.300 (Appeal from decision of the city council). [Ord. 1174 § 19, 1996.]

18.56.200 Review process for Type VI land use action.

(1) For all Type VI land use actions except textual code amendments, the planning agency shall conduct a public hearing for review of the proposed land use action. The planning agency may recommend approval, approval with conditions, or denial of a Type VI land use action. The recommendation(s) of the planning agency shall be forwarded to the city council.

(2) For textual code amendments, the community development director may schedule a public meeting before the planning agency as provided in DMMC 18.60.120.

(3) Upon conclusion of the 15-day comment period, the city council may approve, approve with conditions, or deny a Type VI land use action upon compliance with the procedural requirements of chapter 18.60 DMMC (Amendments, Unclassified Use Permits, Planned Unit Developments, and Appeals).

(4) Except for matters subject to review by the Central Puget Sound Growth Management Hearings Board as provided by RCW 36.70A.280 as presently constituted or as may be subsequently amended, the city council’s decision regarding a Type VI land use action is appealable the Superior Court of Washington for King County as specified by DMMC 18.94.300 (Appeal from decision of the city council). [Ord. 1193 § 5, 1997; Ord. 1174 § 20, 1996.]

18.56.205 Review process for Type VII land use action.

Repealed by Ord. 1341. [Ord. 1287 § 5, 2001.]

18.56.210 Written report or decision.

A written report shall be provided as required by RCW 36.70B.060 and 36.70B.130 as presently constituted or as may be subsequently amended. [Ord. 1174 § 21, 1996.]

18.56.220 Procedures for open record public hearings.

(1) Open record public hearings shall be conducted as required by chapter 4.12 DMMC (City Council – Rules of Procedure), chapter 18.94 DMMC (Hearing Examiner), RCW 36.70B.020, 36.70B.060, 36.70B.110, 36.70B.120, 43.21C.075, and other applicable law as presently constituted or as may be subsequently amended.

(2) Written information received from the public or other agencies shall be admitted to the record during the time between the publication of the applicable public notice, and the closing of the open record public hearing by the presiding officer of the city council hearing.

(3) Oral testimony from the public or other agencies shall be admitted to the record during the time between the opening and closing of the open record public hearing by the presiding officer of the city council hearing.

(4) Upon the closing of the open record public hearing by the presiding officer of the city council hearing, no additional written information or oral testimony from the public or other agencies will be accepted or considered. [Ord. 1341 § 4, 2004: Ord. 1287 § 6, 2001: Ord. 1193 § 6, 1997; Ord. 1174 § 22, 1996.]

18.56.230 Procedures for closed record appeal hearings.

(1) Closed record appeal hearings shall be conducted in accordance with chapter 4.12 DMMC (City Council – Rules of Procedure) and chapter 18.94 DMMC (Hearing Examiner) as applicable.

(2) Closed record public hearings shall be conducted as required by RCW 36.70B.020, 36.70B.060, 36.70B.110, 36.70B.120, 43.21C.075, and other applicable law as presently constituted or as may be subsequently amended.

(3) Except as specified by procedures for reconsideration or remand, no new evidence or testimony shall be given or received during a closed record appeal hearing. However, the parties to the appeal may submit written statements limited to the issue(s) appealed. [Ord. 1174 § 23, 1996.]

18.56.240 Reconsideration.

A party to a public hearing or closed record appeal may seek reconsideration of a final decision. Requests for reconsideration shall be submitted and considered as specified by DMMC 18.94.250 (Decision – Reconsideration). [Ord. 1287 § 7, 2001: Ord. 1174 § 24, 1996.]

18.56.250 Remand.

The city council may remand a hearing examiner decision on a Type III land use action as specified by DMMC 18.94.290 (City council action on appeal – Procedure – Burden of proof – Criteria to affirm, modify, reverse, or remand). [Ord. 1174 § 25, 1996.]

18.56.260 Final decision.

(1) When written notice of a final decision is required, such notice shall be provided as specified by RCW 36.70B.060, 36.70B.090, and 36.70B.130 as presently constituted or as may be subsequently amended.

(2) As specified by chapter 64.40 RCW, as presently constituted or as may be subsequently amended, the city is not liable for damages under this chapter due to the city’s failure to make a final decision within the time limit specified by RCW 36.70B.090 or other applicable law. [Ord. 1174 § 26, 1996.]

18.56.270 Appeals.

(1) Appeals shall conform to the requirements specified by RCW 36.70B.030, 36.70B.060, 43.21C.075, 90.58.180, chapter 36.70C RCW, and other applicable law as presently constituted or as may be subsequently amended.

(2) Appeal of an administrative land use action shall be filed as specified by DMMC 14.04.130 (Appeals), 16.04.210 (Agency SEPA appeals), 17.12.170 (Appeals), chapter 18.60 DMMC (Amendments, Unclassified Use Permits, Planned Unit Developments, and Appeals), DMMC 18.86.150 (Appeals), and chapter 18.94 DMMC (Hearing Examiner). Appeal of an administrative decision relating to a proposed Type III, Type IV, or Type VI land use action shall be resolved during the required open record public hearing.

(3) Except for appeal of shoreline substantial development and other shoreline decisions, appeal of a hearing examiner land use decision shall be filed as specified by chapter 18.94 DMMC (Hearing Examiner). Appeal of shoreline substantial development and other shoreline decisions shall be filed with the shoreline hearings board as specified by chapter 90.58 RCW as presently constituted or as may be subsequently amended.

(4) Except for appeal of shoreline substantial development and other shoreline decisions, appeal of a city council decision and other land use actions for which available remedies have been exhausted shall require the filing of a land use petition in Superior Court of Washington for King County as specified by DMMC 18.94.300 and chapter 36.70C RCW as presently constituted or as may be subsequently amended. Appeal of shoreline substantial development and other shoreline decisions shall be filed with the shoreline hearings board as specified by chapter 90.58 RCW, as presently constituted or as may be subsequently amended. [Ord. 1341 § 5, 2004: Ord. 1287 § 8, 2001: Ord. 1174 § 27, 1996.]