Chapter 18.40 PROCEDURES FOR LAND USE PERMITS AND DECISIONS

Chapter 18.40
PROCEDURES FOR LAND USE PERMITS AND DECISIONS

Sections:

18.40.010 Purpose.

18.40.020 Permit required.

18.40.030 Exclusions from permit requirements.

18.40.040 Coordination of development permit procedures.

18.40.050 Certain regulatory authority not affected.

18.40.060 Terminology and methods used.

18.40.070 Process types.

18.40.080 Process I – Administrative approval.

18.40.090 Process II – Administrative action.

18.40.100 Process III – Hearing examiner action.

18.40.110 Process IV – Quasi-judicial rezones.

18.40.120 Process V – Legislative review.

18.40.130 Preapplication conference.

18.40.140 Project permit applications.

18.40.150 Determination of completeness (RCW 36.70B.070).

18.40.160 Incorrect applications.

18.40.170 Referral of applications.

18.40.180 Notice of application (RCW 36.70B.060).

18.40.190 Notice of public hearing.

18.40.010 Purpose.

The purpose of this chapter is to provide for and promote the health, safety and welfare of the general public and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the provisions of this chapter. (Ord. 03-203 § 1).

18.40.020 Permit required.

A permit, discretionary or zoning decision shall be issued by the city manager or designee according to the provisions of this title for all development activities and uses located within the city, except as excluded by EMC 18.40.030, Exclusions from permit requirements. The building official shall not issue a building permit for the construction, reconstruction or alteration of a structure or a part of a structure for which a zoning decision has not been issued. The city manager or designee shall not issue a project permit, discretionary or zoning decision for the improvement or use of land that has been previously divided or otherwise developed in violation of this title, regardless of whether the permit applicant created the violation, unless the violation can be rectified as part of the development. (Ord. 03-203 § 1).

18.40.030 Exclusions from permit requirements.

Except as indicated otherwise, an activity, development or use listed below is excluded from the requirement for a project permit, discretionary, or zoning decision. Exclusion from the requirements of a permit does not exempt the development or its use from applicable requirements of this title or other applicable federal, state and local regulations.

A. Landscaping of a single-family detached dwelling that does not involve a structure, grading, fill, excavation or otherwise require a permit.

B. Fences less than or equal to six feet in height and not obstructing the clear line of vision of vehicular traffic approaching the location from any street or driveway. Fences greater than six feet in height require a building permit and must meet applicable setback standards.

C. A change internal to a building or other structure that does not substantially affect the use of the structure and that does not require a building permit.

D. Structures less than 120 square feet and less than 10 feet in height are not subject to a development permit, but are required to meet all appropriate setbacks as listed in EMC 18.90.150, Setback standards, when placed on the owner's property where the owner resides. No structures may be placed on a lot so as to obstruct the clear line of vision of vehicular traffic approaching on any street or from a driveway.

E. Any emergency measures necessary for the safety or protection of property.

F. Agricultural uses.

G. The establishment, performance, construction, or installation of residential accessory uses that do not involve or otherwise require a city permit, license or approval.

H. The establishment, construction or termination of a public utility facility that directly serves development authorized for any area, including such facilities as a private or public street, sewer, water line, electrical power or gas distribution line, or telephone or television cable system, that do not otherwise require a city permit, license or approval.

I. Installation or construction of an accessory structure that does not require a building permit.

J. The stockpiling or broadcasting of less than 50 cubic yards of landscape material, such as topsoil, peat, sawdust, mulch, bark, or chips, not to exceed SEPA exemption levels. (Ord. 03-203 § 1).

18.40.040 Coordination of development permit procedures.

A. The city manager or designee shall determine the proper procedure for all applications using EMC 18.40.070, Process types. If there is a question as to the appropriate process, the city manager or designee shall resolve it in favor of the higher process number procedure. Process I is the lowest number procedure and Process V is the highest.

B. An application that involves two or more procedures shall be processed collectively at the city's sole discretion, under the highest numbered procedure required for any part of the application. Public hearings with other agencies shall be processed according to EMC 18.40.190, Notice of public hearing.

C. Abbreviated findings shall be restricted to Process I and II, where little or no discretion is needed to make a decision. The decision may serve as a permit if all requirements are met.

D. Except for Process V procedures, all city actions on project permits, including resolution of all local appeals shall be complete within 120 days of determination of a completed application. This 120-day period may be extended for a reasonable period of time at the request of the applicant pursuant to EMC 18.40.150, Determination of completeness. (Ord. 03-203 § 1).

18.40.050 Certain regulatory authority not affected.

An application for a land use approval may be denied or approved conditionally under the authority of the city to protect and enhance the public safety, health, and general welfare, and under the State Environmental Policy Act, even though the applicant has attained a vested right against enforcement of an ordinance which changes the regulations, codes, or procedures affecting the land use action. (Ord. 03-203 § 1).

18.40.060 Terminology and methods used.

The city manager or designee shall be responsible for the coordination of the project permit application and decision-making procedures and shall only issue a permit or grant an approval to an applicant whose application and proposed development is in compliance with the full provisions of this title. Before issuing any permits or approvals, the city manager or designee shall be provided with sufficient detail to establish that an application is in full compliance with the requirements of this title.

A. For purposes of this title, certain terms or words used in this title shall be interpreted as follows:

1. The present tense includes the future tense, the singular number includes the plural, and the plural number includes the singular.

2. The word “shall” is mandatory; and the word “may” is permissive.

3. The word “used” or “occupied” includes the words “intended, designed or arranged to be used or occupied.”

B. In computing time for the purposes of this title, the following apply:

1. “Day” means calendar day.

2. The day that a notice is issued shall not be included in the comment period.

3. The last day of the comment period shall be included unless it is a Saturday, Sunday, a day designated by RCW 1.16.050 or by the city's ordinances as a legal holiday, then it also is excluded and the comment must be submitted by the next business day.

4. The day that a decision is issued shall not be included in the appeal period.

5. The last day of the appeal period shall be included unless it is a Saturday, Sunday, a day designated by RCW 1.16.050 or by the city's ordinances as a legal holiday, then it also is excluded and the filing must be completed on the next business day.

C. Distances will be measured by following a straight line, without regard to intervening buildings, from the nearest point of the property or parcel upon which the proposed use is to be located, to the nearest point of the parcel, buffer or wetland delineation line, ordinary high water line or the zoning district boundary line from which the proposed use is to be separated. (Ord. 03-203 § 1).

18.40.070 Process types.

Permit applications for review pursuant to this section shall be classified as a Process I, Process II, Process III, or Process IV action, all of which are administrative in nature. Process V actions are legislative in nature. All land use permit applications and decisions are categorized by process type as set forth in this chapter. The differences between the processes are generally associated with the different nature of the decisions and the decision-making body, as described in Table 1 below.

Table 1: Application Processing Procedures
	Process I Administrative Approval	Process II Administrative Action	Process III Hearing Examiner Action	Process IV Quasi-Judicial Rezones	Process V Legislative Action
Permits	Administrative interpretations; Boundary line adjustments; Building permit; Design standards review; Final binding site plan; Final short plat; Limited home business; Manufactured or mobile home permit; Site development permit; Sign permit; Temporary sign permit; Temporary use; Tree removal permit; Zoning decisions	Administrative uses; Administrative variance; Binding site plan per EMC 16.05.050(B); Home business; Master plan; Environmental review; Short plat; Short plat amendment	Binding site plan per EMC 16.05.050(A); Conditional uses; Plat amendment; Preliminary plat; Public facilities permits; Reasonable use permit variances; Residential cluster development	Rezone; Comprehensive plan map and text amendments; Final plat No hearing or recommendation required from planning commission	Ordinance text or area-wide map change; Annexation; Adoption of new planning-related ordinances
Impacts	Minimal or no effect on others, so issuance of permit is not dependent on others	Application of the standards may require some knowledge of impacts and effect upon others	Potential significant effect on some persons or broad impact on a number of persons	Potential significant effect on some persons or broad impact on a number of persons	Potential significant effect on some persons or broad impact on a number of persons
Recommendations	NA	NA	Staff	Planning commission **except as noted above	Planning commission
Decision-Making Body	Designee	Designee	Hearing examiner	City council	City council
Appeal	City manager	Hearing examiner	City council	State agencies, Pierce County superior courts	State agencies, Pierce County superior courts
Notice/Comment	Participation of applicant only	Nearby property owners invited to comment on an application	In addition to applicant, others affected invited to present initial information	In addition to applicant, others affected invited to present initial information	Anyone invited to present information

A. This section is intended to provide procedures for the processing of permits pursuant to the requirements of Chapter 36.70B RCW, including, but not limited to, preapplication conferences, SEPA consistency, determination of completeness, notice of application, public notice, public hearing and appeal processes for review of project permits. If the procedural requirement of this title were in direct conflict with the state statute, then the state statute would apply.

B. All Process III, and Process IV permits, and any Process I and Process II permits that are subject to environmental review under SEPA (Chapter 43.21C RCW and EMC Title 20) are subject to the provisions of EMC 18.40.090, Process II – Administrative action. An environmental checklist shall be submitted in conjunction with the submittal of a project permit application subject to EMC 18.40.140, Project permit applications. One environmental threshold determination shall be made for all related project permit applications. The city will not issue a threshold determination, other than a determination of significance (DS), prior to the submittal of a complete project permit application and the expiration of the public comment period in the notice of application pursuant to EMC 18.40.180, Notice of application, but may utilize the public notice procedures as outlined in EMC 18.40.190, Notice of public hearing, to consolidate public notice.

C. The following permits or approvals are specifically excluded from the procedures set forth in this chapter:

1. Landmark designations.

2. Street vacations.

3. Street use permits.

4. Building permits which are categorically exempt from environmental review under SEPA or that do not require street improvements, boundary line adjustments, or other construction permits, pursuant to RCW 36.70B.140.

5. Administrative approvals which are categorically exempt from environmental review under SEPA, pursuant to Chapter 43.21C RCW and EMC Title 20, SEPA, for which environmental review has been completed in connection with other project permits. (Ord. 07-288 § 2; Ord. 06-269 § 5; Ord. 03-203 § 1).

18.40.080 Process I – Administrative approval.

A. Various provisions of this chapter indicate that certain developments, activities, or uses are permitted only if approved using Process I. Under Process I, the city manager or designee, is authorized to make administrative decisions based on certain criteria as set forth in this title or chapter. Any Process I application not categorically exempt from the State Environmental Policy Act, WAC 197-11-800, shall be reviewed pursuant to the procedural requirements of Process I of this chapter. Any appeals of the designee decision under this process may be appealed to the city manager as provided for in this process.

B. Purpose of Review.

1. To review a proposal for compliance with the provisions of this chapter and all other applicable law.

2. To ensure that the health, safety, and welfare of the citizens of the city is preserved.

3. To provide an expedient and reasonable land use review process for administrative decisions and interpretations of this chapter.

C. Applications.

1. Any person, personally or through an agent, may make application for a Process I land use decision.

2. The applicant shall file a completed land use application. Accompanying the application shall be a written response to the decisional criteria as set forth in this chapter for a particular use or activity.

3. With the application, the applicant shall submit the fee established by the city. The application shall not be accepted unless it is accompanied by the required fee.

4. The city manager or designee may modify the submittal requirements as deemed appropriate.

5. An application for an administrative decision shall be routed to the community development department. The city manager or designee may route for comment an application to other staff members or departments.

D. Appeals.

1. The applicant and any person who received notice of the administrative decision under this section may appeal the administrative decision.

2. The appeal, in the form of a letter of appeal, must be delivered to the community development department within 14 calendar days after issuance of the administrative decision. The letter of appeal must contain:

a. A statement identifying the administrative decision being appealed, along with a copy of the administrative decision;

b. A statement of the alleged errors in the administrative decision, including identification of specific factual findings and conclusions of the city manager or designee disputed by the person filing the appeal; and

c. The appellant's name, address, telephone number and fax number, and any other information to facilitate communications with the appellant.

3. The person filing the appeal shall include, with the letter of appeal, the appeal fee as established by the city. The appeal will not be accepted unless it is accompanied by the required fee.

4. Appeals of an administrative decision will be reviewed and decided upon using the process for appeals outlined in, EMC 18.40.090, Process II – Administrative action. (Ord. 03-203 § 1).

18.40.090 Process II – Administrative action.

A. Various provisions of this chapter indicate that certain developments, activities or uses are permitted only if approved using Process II. Under Process II, the city manager or designee will make the initial land use decision based on written comments and information. Appeal of the decisions will be decided by the hearing examiner after an open record appeal.

B. Process II has the following purposes:

1. Review the proposal for compliance with the provisions of this chapter and all other applicable law.

2. Help ensure that the proposal is coordinated, as is reasonable and appropriate, with other known or anticipated development on private properties in the area and with known or anticipated right-of-way and other public improvement projects within the area.

C. Applications.

1. Any person may, personally or through an agent, apply for a decision regarding property he or she owns.

2. The applicant shall file a completed application in the community development department on the form provided by the department. The applicant shall also provide all information or material that is specified in the provision of this chapter that describes the decision applied for, all information specified in EMC 18.40.150, Determination of completeness, and any additional information or material that the city manager or designee determines is reasonably necessary for a decision on the matter.

3. With the application, the applicant shall submit the fee established by the city. The application will not be accepted unless it is accompanied by the required fee.

4. The city will apply EMC 18.40.150, Determination of completeness, to determine if an application is complete.

5. A determination of completeness shall not preclude the city from requesting additional information or studies, either at the time of the letter of completeness or subsequently, if new information is required or substantial changes in the proposed action occur.

D. The State Environmental Policy Act applies to some of the decisions that will be made using this process. The city manager or designee shall evaluate each application and, where applicable, comply with the State Environmental Policy Act and with state regulation and city ordinances issued under the authority of the State Environmental Policy Act.

E. Official File.

1. The designee shall compile an official file on the application containing the following:

a. All application material submitted by the applicant.

b. All written comments received on the matter.

c. The written decision of the city manager or designee.

d. If the decision of the city manager or designee is appealed, the following will be included in the file:

i. The letter of appeal.

ii. All written comments received regarding the appeal.

iii. The staff report regarding the appeal.

iv. The electronic audio recording of the hearing on the appeal.

v. The decision of the hearing examiner on the appeal.

vi. Any other information relevant to the matter.

2. The official file is a public record. It is available for inspection and copying in the community development department during regular business hours.

F. The city manager or designee shall within 14 days of issuing a letter of completeness on the proposal, prepare a notice of application containing all information specified in EMC 18.40.180, Notice of application.

G. The applicant has the responsibility of convincing the city manager or designee that, under the provisions of this process, the applicant is entitled to the requested decision.

H. The city manager or designee shall consider all written comments and information regarding the requested decision that are received by the community development department before the deadline contained within the notice of application.

I. City Manager or Designee Decision.

1. Coordination with Decisions Under the State Environmental Policy Act. If a SEPA threshold determination is required to be issued, the threshold determination must follow the end of the public comment period, but precede the city manager's or designee's decision on the land use and design components of the Process II project approval. If the SEPA threshold determination is appealed, the city manager's or designee's land use and design components decision shall be issued sufficiently in advance of the open record hearing on the threshold determination appeal, to allow any appeal of the land use and/or design review decision to be consolidated and heard with the appeal of the threshold determination. If the city manager or designee is unable to issue the final decision on the land use of a Process II project application as provided in this section, the city shall provide written notice pursuant to EMC 18.40.150(A)(4).

2. In making a decision on the application, the city manager or designee shall use the criteria listed in the provisions of this chapter. In addition, the city manager or designee may approve the application only if it is consistent with:

a. The comprehensive plan;

b. All applicable provisions of this chapter;

c. The public health, safety, and welfare; and

d. The streets and utilities in the area of the subject property are adequate to serve the anticipated demand from the proposal.

3. The city manager or designee shall include in the written decision any conditions and restrictions that are reasonably necessary to eliminate or minimize any undesirable effects of granting the application. Any conditions and restrictions that are included become part of the decision.

a. The city manager or designee shall include the following in the written decision:

i. A statement granting, modifying and granting, or denying the application.

ii. Any conditions and restrictions that are imposed.

iii. A statement of facts presented to the city manager or designee that support the decision, including any conditions and restrictions that are imposed.

iv. A statement of the director's conclusions based on those facts.

v. A statement of the criteria used in making the decision.

vi. The date of the decision.

vii. A summary of the rights, as established in this process, of the applicant and others to appeal the decision.

viii. A statement of any threshold determination made under the State Environmental Policy Act, WAC 197-11-330, Threshold determination process.

J. Within five working days after the written decision of the city manager or designee is issued, a copy of the decision shall be mailed as follows:

1. The applicant.

2. Each person who submitted written comments or information to the city manager or designee.

3. Any person who has specifically requested it.

K. Decisions under this section shall become final subject to the following:

1. An applicant or other party of record who may be aggrieved by the decision may appeal the decision within 14 days of the issuance of the decision by the city manager or designee consistent with the provisions of subsection (L) of this section, Appeals. If a written notice of appeal is received within the appeal period, the decision shall be referred to the hearing examiner and shall not become final until the appeal process is complete and the city issues a final decision. Upon issuance of the final decision, the applicant may engage in activity based on the decision, provided applicable permits have been approved.

2. If no appeal is submitted within the 14 calendar day appeal period, the preliminary approval shall become final on the first calendar day following the expiration of the appeal period. Upon the decision becoming final, the applicant may engage in activity based on the decision, provided applicable permits have been approved.

L. Appeals.

1. The decision of the city manager or designee related to the processes pursuant to Table 1 may be appealed by any person who is to receive a copy of that decision under subsection (J) of this section.

2. The appeal, in the form of a letter of appeal, must be delivered to the department of community development within 14 calendar days after issuance of the decision of the city manager or designee. The letter of appeal must contain:

a. A statement identifying the decision being appealed, along with a copy of the decision;

b. A statement of the alleged errors in the decision, including identification of specific factual findings and conclusions of the city manager or designee disputed by the person filing the appeal; and

c. The appellant's name, address, telephone number and fax number, and any other information to facilitate communications with the appellant.

3. The person filing the appeal shall include, with the letter of appeal, the fee as established by the city. The appeal will not be accepted unless it is accompanied by the required fee.

4. Appeals from the decision of the city manager or designee will be heard by the hearing examiner.

M. Notice of public hearing is required for all types of applications for which a public hearing is held. Notice of public hearing shall be reasonably calculated to give actual notice and shall contain the information as specified in EMC 18.40.190, Notice of public hearing.

N. Only those persons entitled to appeal the decision under subsection (J) of this section may participate in the appeal. These persons may participate in either or both of the following ways:

1. By submitting written comments or information to the community development department prior to the hearing or to the hearing examiner during the hearing.

2. By appearing in person, or through a representative, at the hearing and submitting oral comments directly to the hearing examiner. The hearing examiner may reasonably limit the extent of the oral comments to facilitate the orderly and timely conduct of the hearing.

O. The scope of the appeal is limited to the errors raised or the specific factual findings and conclusions disputed in the letter of appeal. The hearing examiner may only consider evidence, testimony or comments relating to errors raised or the disputed findings and conclusions. The hearing examiner also may not consider any request for modification or waiver of applicable requirements of this chapter or any other law.

P. Staff Report on Appeal.

1. The city manager or designee shall prepare a staff report on the appeal containing the following:

a. The written decision of the city manager or designee.

b. All written comments submitted to the city manager or designee.

c. The letter of appeal.

d. All written comments on the appeal received by the community development department from persons entitled to participate in the appeal.

e. An analysis of the alleged errors in the decision and any specific factual findings and conclusions disputed in the letter of appeal.

2. At least seven calendar days before the hearing, the community development department shall distribute copies of the staff report on the appeal as follows:

a. The hearing examiner.

b. The applicant.

c. The person who filed the appeal.

d. Each person who received a copy of the city manager or designee decision.

Q. Open Record Appeal.

1. The hearing examiner shall hold an open record hearing on the appeal.

2. The hearings of the hearing examiner are open to the public.

3. The hearing examiner shall make an audio recording of each hearing.

4. The person filing the appeal has the responsibility of convincing the hearing examiner by a preponderance of the evidence that the city manager or designees' decision contains an error of law or that its findings of fact or conclusions are incorrect pursuant to EMC 18.30.090, Burden of proof.

5. The hearing examiner may continue the hearing if, for any reason, the examiner is unable to hear all of the public comments on the appeal or if the hearing examiner determines that the examiner needs more information within the scope of the appeal. If, during the hearing, the hearing examiner announces the time and place of the next hearing on the matter and a notice thereof is posted on the door of the hearing room, no further notice of that hearing need be given.

R. Decision on Appeal.

1. The hearing examiner shall consider all information and comments within the scope of the appeal submitted by persons entitled to participate in the appeal. The hearing examiner shall either affirm or change the findings and conclusions of the city manager or designee that were appealed. Based on the hearing examiner's findings and conclusions, the examiner shall either affirm, reverse or modify the decision being appealed.

2. Within 10 working days after the public hearing, the hearing examiner shall issue a written decision on the appeal. Within five working days after it is issued, the hearing examiner shall distribute the decision as follows:

a. The applicant.

b. The person who filed the appeal.

c. Each person who participated in the appeal.

d. Each person who specifically requested it.

3. The decision by the hearing examiner is the final decision of the city.

S. The hearing examiner's decision affirming, modifying or reversing the city manager or designee's decision denying an application under this process is the final decision of the city. The hearing examiner's decision may be reviewed pursuant to RCW 36.70C.040 in the Pierce County superior court. The land use petition must be filed within 21 calendar days after issuance of the final land use decision of the city.

1. The applicant under this process must begin construction or submit to the city a complete building permit application for the development activity, use of land or other actions approved under this process within one year after the final decision on the matter, or the decision becomes void.

2. The applicant must substantially complete construction for the development activity, use of land, or other actions approved under this process and complete the applicable conditions listed in the decision within five years after the final decision of the city on the matter, or the decision becomes void. If litigation is initiated pursuant to this subsection (S), the time limits of this section are automatically extended by the length of time between the commencement and final termination of that litigation.

3. If the development activity, use of land, or other actions approved under this chapter includes phased construction, the time limits of this section may be extended in the decision on the application, to allow for completion of subsequent phases.

T. Prior to the lapse of approval under subsection (S) of this section, the applicants may submit a written application in the form of a letter with supporting documentation to the community development department requesting a one-time extension of those time limits (time extension) of up to one year.

1. The request must demonstrate that the applicant is making substantial progress on the development activity, use of land or other actions approved under this chapter and that circumstances beyond the applicant's control prevent compliance with the time limits of EMC 18.40.150(A)(1), Time Limitations.

2. The applicant shall include, with the letter of request, the fee as established by the city. The application will not be accepted unless it is accompanied by the required fee.

3. An application for a time extension will be reviewed and decided upon by the city manager or designee.

U. Any person who is aggrieved by the granting or denying of a request for a time extension under this section may appeal that decision to the city council. The appellant must file a letter of appeal indicating how the decision on the time extension affects the appellant's property and presenting any relevant material or information supporting the appellant's contention. Pursuant to EMC 18.40.150(A), any time limit upon the city's processing and decision upon applications under this chapter may, except as otherwise specifically stated in this chapter, be modified by a written agreement between the applicant and the city manager or designee.

V. The city may require a bond under EMC 18.30.120, Security mechanisms, to ensure compliance with any aspect of a permit or approval.

W. Complete Compliance Required.

1. Except as specified in subsection (W)(2) of this section, the applicant must comply with all aspects, including conditions and restrictions, of an approval granted under this chapter in order to do everything authorized by that approval.

2. If a specific use or site configuration for the subject property was approved under this process or any administrative process under a previous zoning regulation, the applicant is not required to apply for and obtain approval through this process for a subsequent change in use or site configuration unless:

a. There is a change in use and this chapter establishes different or more rigorous standards for the new use than for the existing use; or

b. The city manager or designee determines that there will be substantial changes in the impacts on the neighborhood or the city as a result of the change. (Ord. 03-203 § 1).

18.40.100 Process III – Hearing examiner action.

A. Various provisions of this chapter indicate that certain developments, activities or uses are permitted only if approved using Process III. Under Process III the hearing examiner will make the initial decision following a public hearing. City council will decide appeals from the hearing examiner decision on the land use element.

B. Proposals Requiring Approval Through Process III. If the development, use or activity that requires approval through Process I or Process II is part of a proposal that also requires approval through Process III.

C. Process III has the following purposes:

1. Review the proposal for compliance with the provisions of this chapter and all other applicable law.

2. Ensure that the proposal is coordinated, as is reasonable and appropriate, with other known or anticipated development on private properties in the area and with known or anticipated right-of-way and other public improvement projects within the area.

3. Encourage proposals that embody good design standards principles that will result in high quality development on the subject property.

D. The applicant shall file the following information with the community development department when filing an application:

1. A completed application, with supporting affidavits, on forms provided by the community development department.

2. Any information or material that is specified in the provision of this chapter that describes the requested decision in the application.

3. Any additional information or material that the city manager or designee determines is reasonably necessary for a decision in the matter.

4. With the application, the applicant shall submit the fee established by the city. The application will not be accepted unless it is accompanied by the required fee.

5. The city will apply EMC 18.40.150, Determination of completeness, to determine if an application is complete.

6. A determination of completeness shall not preclude the city from requesting additional information or studies, either at the time of the letter of completeness or subsequently, if new information is required or substantial changes in the proposed action occur.

E. The city manager or designee shall compile an official file on the application containing the following:

1. All application materials submitted by the applicant.

2. The staff report.

3. All written comments received on the matter.

4. The electronic recording of the public hearing on the matter.

5. The decision of the hearing examiner.

F. If the decision of the hearing examiner is appealed, the following will be included in the file:

1. The letter of appeal.

2. All written comments submitted regarding the appeal.

3. The staff report on the appeal.

4. The decision of the city council on the appeal.

5. Any other information relevant to the matter.

G. The official file is a public record. It is available for inspection and copying in the community development department during regular business hours.

H. The city manager or designee shall, within 14 days of issuing a letter of completeness on the proposal, prepare a notice of application containing all information specified in EMC 18.40.180, Notice of application.

I. In addition to the information specified EMC 18.40.190, Notice of public hearing, the notice of public hearing shall include the following:

1. Date, time, and place of the public hearing.

2. A statement of the right of any person to submit written comments to the hearing examiner and to appear at the public hearing of the hearing examiner to give comments orally and the right to request a copy of the decision once made.

3. A statement that only persons who submit written or oral comments to the hearing examiner may appeal the hearing examiner's decision.

J. The State Environmental Policy Act (SEPA) applies to some of the decisions that will be made using this chapter.

1. The city manager or designee shall evaluate each application and, where applicable, comply with SEPA and with state regulations and city ordinances issued under the authority of the SEPA.

2. Where a threshold determination under the SEPA is required, the responsible official shall issue a determination at least 29 days prior to the hearing before the hearing examiner to allow any appeal of the threshold determination to be consolidated with the hearing on the application for Process III approval.

K. The city manager or designee shall prepare a staff report concerning the application being processed pursuant to this section.

1. The staff report shall contain the following information:

a. All pertinent application materials.

b. All comments regarding the matter received by the community development department prior to distribution of the staff report.

c. An analysis of the application under the relevant provisions of this chapter and the comprehensive plan.

d. A statement of the facts found by the city manager or designee and the conclusions drawn from those facts.

e. A recommendation on the matter.

2. At least seven calendar days before the hearing, the city manager or designee shall distribute the staff report as follows:

a. The hearing examiner.

b. The applicant.

c. Any person who has specifically requested it.

L. Public Hearing.

1. The hearing examiner shall hold a public hearing on each application.

2. The hearings of the hearing examiner are open to the public.

M. The hearing examiner shall make a complete electronic audio recording of each public hearing.

N. The applicant has the responsibility of convincing the hearing examiner that, under the provision of this process, the applicant is entitled to the requested decision.

O. Any person may participate in the public hearing in either or both of the following ways:

1. By submitting written comments to the hearing examiner, either by delivering these comments to the community development department prior to the hearing; or

2. By giving comments directly to the hearing examiner at the hearing. By appearing in person, or through a representative, at the hearing and making oral comments directly to the hearing examiner. The hearing examiner may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing.

P. The hearing examiner may continue the hearing if, for any reason, he or she is unable to hear all of the public comments on the matter or if the hearing examiner determines that more information on the matter is needed. If, during the hearing, the hearing examiner announces the time and place of the next hearing on the matter and a notice thereof is posted on the door of the hearing room, no further notice of that hearing need be given.

Q. After considering all of the information and comments submitted on the matter, the hearing examiner shall issue a written decision. Unless the applicant agrees to a longer period, the hearing examiner must issue the decision within 10 working days after the close of the public hearing. The hearing examiner shall use the criteria listed in the provisions of this chapter. In addition, the hearing examiner may approve the application only if it is consistent with:

1. The comprehensive plan; and

2. All applicable provisions of this chapter and all other applicable laws; and

3. The public health, safety and welfare; and

4. The streets and utilities in the area of the subject property are adequate to serve the anticipated demand from the proposal; and

5. The proposed access to the subject property is at the optimal location and configuration for access.

R. The hearing examiner shall include in the written decision any conditions and restrictions that the examiner determines are reasonably necessary to eliminate or minimize any undesirable effects of granting the application. Any conditions and restrictions that are imposed become part of the decision. The hearing examiner shall include the following in the examiner's written decision:

1. A statement granting, modifying and granting or denying the application.

2. Any conditions and restrictions that are imposed.

3. A statement of facts presented to him or her that support the decision, including any conditions and restrictions that are imposed.

4. A statement of the hearing examiner's conclusions based on those facts.

5. A statement of the criteria used by the hearing examiner in making the decision.

6. The date of issuance of the decision and a summary of the rights, as established in this chapter, of the applicant and others to appeal the decision of the hearing examiner.

7. A statement of any threshold determination made under the State Environmental Policy, Chapter 43.21C RCW.

8. A statement that affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.

9. Within five working days after the hearing examiner's written decision is issued, the city manager or designee shall mail a copy of the decision to:

a. The applicant.

b. Each person who submitted written or oral testimony to the hearing examiner.

c. Any person who has specifically requested it.

S. Decisions under this section shall become final subject to the following:

1. An applicant or other party of record who may be aggrieved by the decision may appeal the decision within 14 days of the issuance of the decision by the director of community development consistent with the provisions of EMC 18.40.090(L), Appeals. If a written notice of appeal is received within the appeal period, the decision shall be referred to the hearing examiner and shall not become final until the appeal process is complete and the city issues a final decision. Upon issuance of the final decision, the applicant may engage in activity based on the decision, provided applicable permits have been approved.

T. Appeals.

1. The decisions of the hearing examiner may be appealed by any person who is to receive a copy of that decision under EMC 18.40.090(I)(3) (a).

2. The appeal, in the form of a letter of appeal, must be delivered to the community development department within 14 calendar days after the issuance of the hearing examiner's decision. The letter of appeal must contain:

a. A statement identifying the decision being appealed, along with a copy of the decision;

b. A statement of the alleged errors in the hearing examiner's decision, including specific factual findings and conclusions of the hearing examiner disputed by the person filing the appeal; and

c. The appellant's name, address, telephone number and fax number, and any other information to facilitate communications with the appellant.

3. The person filing the appeal shall include, with the letter of appeal, the fee established by the city. The appeal will not be accepted unless it is accompanied by the required fee and appropriate costs.

4. Appeals from the decision of the hearing examiner will be heard by the city council as a closed record appeal.

U. Notice of public meeting is required for all types of applications for which a public meeting is held. Notice of public meeting shall be reasonably calculated to give actual notice and shall contain the information as specified in EMC 18.40.190, Notice of public hearing.

V. Only those persons entitled to appeal the decision may participate in either or both of the following ways:

1. By submitting written comments to the community development department prior to the hearing or to the city council at the hearing.

2. By appearing in person, or through a representative, at the hearing and making oral comments directly to the city council. The council may reasonably limit the extent of the oral comments to facilitate the orderly and timely conduct of the hearing.

W. Staff Report on the Appeal.

1. The city manager or designee shall prepare documents on the appeal containing the following:

a. The staff report prepared for the public hearing before the hearing examiner.

b. The written decision of the hearing examiner.

c. All written comments submitted to the hearing examiner.

d. A summary of the comments and information presented to the hearing examiner, a statement of the availability of the electronic sound recording of the hearing, or a written transcript of the hearing examiner's proceedings.

e. The letter of appeal.

f. All written comments received by the community development department from persons entitled to participate in the appeal and within the scope of the appeal.

g. An analysis of the alleged errors and the specific factual findings and conclusions disputed in the letter of appeal.

2. The city manager or designee shall distribute copies of the documents as follows:

a. Prior to the hearing, a copy will be sent to each member of the city council.

b. At least seven calendar days before the hearing, a copy will be sent to:

i. The applicant;

ii. The person who filed the appeal; and

iii. Each person who received a copy of the hearing examiner's decision.

X. Closed Record Appeal.

1. The city council shall hold a closed record appeal hearing, as defined in RCW 36.70B.020(1).

2. The hearings of the city council are open to the public.

3. The scope of the appeal is limited to the specific errors raised or factual findings disputed in the letter of appeal. The city council shall consider only the following:

a. The information received from the city manager or designee pursuant to subsection (T) of this section.

b. The record before the hearing examiner, including exhibits and evidence admitted by the hearing examiner;

c. Appeal arguments by the appellant and the property owner, provided that appeal argument shall address only the issues raised by the letter of appeal and evidence, if any, allowed under subsection (X)(3)(d) of this section; or

d. New evidence that was not presented to or considered by the hearing examiner, but only if the city attorney determines that evidence relates to the validity of the hearing examiner's decision at the time it was made and the party offering the new evidence did not know and was under no duty to discover or could not reasonably have discovered the evidence until after the hearing examiner's decision.

Y. The city council shall make a complete electronic audio recording of each closed record appeal.

Z. The person filing the appeal has the responsibility of convincing the city council by a preponderance of the evidence that the hearing examiner's decision contains an error of law or that its findings of fact or conclusions are incorrect.

AA. After considering the matter as provided in subsection (X)(3) of this section, the city council shall, by motion approved by a majority vote of members present, take one of the following actions:

1. If city council determines that the disputed findings of fact and conclusions are the correct findings of fact and conclusions, the council shall affirm the decision.

2. If city council determines that the disputed findings of fact and conclusions are not correct and that correct findings of fact and conclusions do not support the decision of the hearing examiner, the council shall modify or reverse the decision.

3. Notice of Decision.

a. Following the final decision of the city council, the city manager or designee shall prepare a notice of the city's final decision on the application. To the extent the decision does not do so, the notice shall include a statement of any threshold determination made under the State Environmental Policy Act, WAC 197-11-330.

4. The decision of city council is the final decision of the city.

BB. The action of the city in granting or denying an application under this process may be reviewed pursuant to RCW 36.70C.040 in the Pierce County superior court. The land use petition must be filed within 21 calendar days after the final land use decision of the city.

CC. The applicant must begin construction or submit to the city a complete building permit application for the development activity, use of land or other actions approved under this process within one year after the final decision on the matter, or the decision becomes void. The applicant must substantially complete construction for the development activity, use of land, or other actions approved under this section and complete the applicable conditions listed in the decision within five years after the final decision of the city on the matter, or the decision becomes void. If litigation is initiated pursuant to subsection (X) of this section, the time limit of this section is automatically extended by the length of time between the commencement and final termination of that litigation. If the development activity, use of land, or other actions approved under this section includes phased construction, the time limits of this section may be extended in the decision on the application.

DD. Time Extension.

1. Prior to the lapse of approval under subsection (CC) of this section, the applicants may submit a written application in the form of a letter with supporting documentation to the community development department requesting a one-time extension of those time limits of up to one year.

2. The request must demonstrate that the applicant is making substantial progress on the development activity, use of land or other actions approved under this process and that circumstances beyond the applicant's control prevent compliance with the time limits of subsection (CC) of this section.

3. The applicant shall include, with the letter of request, the fee as established by the city. The application will not be accepted unless it is accompanied by the required fee.

4. An application for a time extension will be reviewed and decided upon by the city manager or designee.

5. Any person who is aggrieved by the granting or denying of a request for a time extension under this section may appeal that decision. The appellant must file a letter of appeal indicating how the decision on the time extension affects the appellant's property and presenting any relevant material or information supporting the appellant's contention. The appeal will be heard and decided upon using Process III. Any time limit, pursuant to Chapter 36.70B RCW, upon the city's processing and decision upon applications under this chapter may, except as otherwise specifically stated in this chapter, be modified by a written agreement between the applicant and the city manager or designee.

EE. The hearing examiner and city council may require a bond under EMC 18.30.120, Security mechanisms, to ensure compliance with any aspect of a permit or approval.

FF. Complete Compliance Required.

1. Except as specified in subsection (FF)(2) of this section, the applicant must comply with all aspects, including conditions and restrictions, of an approval granted under this process in order to do everything authorized by that approval.

2. If a specific use or site configuration for the subject property was approved under this process or any quasi-judicial process under a previous zoning code, the applicant is not required to apply for and obtain approval through this chapter for a subsequent change in use or site configuration unless:

a. There is a change in use and this chapter establishes different or more rigorous standards for the new use than for the existing use; or

b. The city manager or designee determines that there will be substantial changes in the impacts on the neighborhood or the city as a result of the change. (Ord. 03-203 § 1).

18.40.110 Process IV – Quasi-judicial rezones.

A. This section describes Process IV. Under Process IV, the planning commission will hold a public hearing and based on the record of that hearing make a recommendation to city council, which will then decide upon the application.

B. Types of Rezones. There are two types of quasi-judicial rezones, as follows:

1. Non-Project-Related. A quasi-judicial rezone will be treated as non-project-related if:

a. The proposed rezone is initiated by the city and the subject property is not owned by the city; or

b. The proposed rezone is from one single-family residential zone classification to another single-family residential zone classification.

2. Project-Related. A quasi-judicial rezone will be treated as project-related when it does not meet the requirements of subsection (B)(1)(a) of this section. All project-related rezones require a specific development proposal for the subject property.

C. Applications.

1. Any person may, personally or through an agent, apply for a decision regarding property they own.

2. The applicant shall file the following information with the community development department:

a. A completed application, with supporting affidavits, on forms provided by the community development department;

b. Two sets of stamped envelopes, and a list of the same, labeled with the name and address of all current owners of real property, as shown in the records of the county assessor for the subject property, within 300 feet of each boundary of the subject property;

c. A copy of the county assessor's map identifying the properties specified in subsection (C)(2)(b) of this section;

d. A vicinity map showing the subject property with enough information to locate the property within the larger area;

e. Any information or material that is specified in the provision of this chapter that describes the decision requested in the application;

f. Any additional information or material that the city manager or designee determines is reasonably necessary for a decision on the matter.

3. With the application the applicant shall submit the fee established by the city. The application will not be accepted unless it is accompanied by the required fee and meets the requirements of EMC 18.40.150, Determination of completeness, and this section relating to what constitutes a complete application.

D. The State Environmental Policy Act applies to the decisions that will be made using this process. The city manager or designee shall evaluate each application and, where applicable, comply with the State Environmental Policy Act and with state regulations and city ordinances issued under the authority of the State Environmental Policy Act.

E. Official File.

1. The city manager or designee shall compile an official file on the application containing the following:

a. All application materials submitted by the applicant.

b. The staff report.

c. All written comments received on the matter.

d. The electronic recording of the public hearing on the matter.

e. The recommendation of the planning commission.

f. The electronic sound recording and minutes of the city council proceedings on the matter.

g. The decision of the city council.

h. Any other information relevant to the matter.

2. The official file is a public record. It is available for inspection and copying in the community development department during regular business hours.

F. The city manager or designee shall prepare a notice of each application containing all the information specified in EMC 18.40.180, Notice of application.

G. Staff Report.

1. The city manager or designee shall prepare a staff report containing the following information:

a. All pertinent application materials.

b. All comments regarding the matter received by the community development department prior to distribution of the staff report.

c. An analysis of the application under the relevant provisions of this chapter and the comprehensive plan.

d. A statement of the facts found by the city manager or designee and the conclusions drawn from those facts.

e. A recommendation on the matter.

2. At least seven calendar days before the hearing, the city manager or designee shall distribute the staff report as follows:

a. The planning commission.

b. The applicant.

c. Each person who has specifically requested it.

H. The planning commission shall hold an open record hearing on each application.

1. The planning commission hearing is open to the public.

2. The planning commission serves as the hearing for the city council on the application.

I. The planning commission shall make a complete audio sound recording of each public hearing.

J. The applicant has the responsibility of convincing the city that, under the provision of this section, the applicant is entitled to the requested decision.

K. Any person may participate in the public hearing in either or both of the following ways:

1. By submitting written comments to the planning commission, either by delivering these comments to the community development department prior to the hearing or by giving these directly to the planning commission at the hearing.

2. By appearing in person, or through a representative, at the hearing and making oral comments directly to the planning commission. The planning commission may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing.

L. The planning commission may continue the hearing if, for any reason, they are unable to hear all of the public comments on the matter or if the planning commission determines that they need more information on the matter. If, during the hearing, the planning commission announces the time and place of the next hearing on the matter and a notice thereof is posted on the door of the hearing room, no further notice of that hearing need be given.

M. Recommendation by the Planning Commission.

1. After considering all of the information and comments submitted on the matter, the planning commission shall issue a written recommendation to the city council.

2. Unless a longer period is agreed to by the applicant, the planning commission must issue the recommendation within 10 working days after the close of the public hearing.

3. The planning commission shall use the following criteria for quasi-judicial rezones:

a. The city may approve an application for a quasi-judicial nonproject rezone only if it finds that:

i. The proposed rezone is in the best interest of the residents of the city; and

ii. The proposed rezone is appropriate because either:

(A) Conditions in the immediate vicinity of the subject property have so significantly changed since the property was given its present zoning and that, under those changed conditions, a rezone is within the public interest; or

(B) The rezone will correct a zone classification or zone boundary that was inappropriate when established;

iii. It is consistent with the comprehensive plan;

iv. It is consistent with all applicable provisions of this chapter, including those adopted by reference from the comprehensive plan; and

v. It is consistent with the public health, safety, and welfare.

b. The city may approve an application for a quasi-judicial project related rezone only if it finds that:

i. The criteria in subsection (M)(3)(a) of this section are met; and

ii. The proposed project complies with this chapter in all respects; and

iii. The site plan of the proposed project is designed to minimize all adverse impacts on the developed properties in the immediate vicinity of the subject property; and

iv. The site plan is designed to minimize impacts upon the public services and utilities.

c. The planning commission shall include in the written recommendation any conditions and restrictions that the examiner determines are reasonably necessary to eliminate or minimize any adverse effects of granting the requested rezone.

4. The planning commission shall include the following in the written recommendation to the city council:

a. A statement of facts presented to the planning commission that supports their recommendation, including any conditions and restrictions that are recommended.

b. A statement of the planning commission's conclusions based on those facts.

c. A statement of the criteria used by the planning commission in making the recommendation.

d. The date of issuance of the recommendation.

5. The city manager or designee shall distribute copies of the recommendation of the planning commission as follows:

a. After the planning commission's written recommendation is issued, a copy will be sent to the applicant, to each person who submitted written or oral testimony to the planning commission, and to each person who specifically requested it.

b. Prior to the meeting where city council considers the application, a copy will be sent to each member of city council. The city manager or designee shall include a draft resolution or ordinance that embodies the planning commission's recommendation with the copy of the recommendation sent to each city council member.

N. The city council shall consider the application at a scheduled meeting within 90 calendar days of the date of issuance of the planning commission's recommendation. This time period may be extended upon written agreement of the city manager or designee and the applicant.

1. The city council review of the rezone application shall be limited to the record of the hearing before the planning commission and the planning commission's written report. These materials shall be reviewed for compliance with review criteria set forth in EMC 18.60.010, Code amendments. The city council may also receive and review new evidence or information not contained in the record of hearing before the planning commission, but only if the city attorney determines that evidence or information relates to the validity of the planning commission's decision at the time it was made and the party offering the new evidence did not know and was under no duty to discover or could not reasonably have discovered the evidence until after the planning commission's decision; or

2. After consideration of the entire matter, the city council shall, by action approved by a majority of the total membership, take one of the following actions:

a. Project-Related Rezone. The city council has the option to:

i. Grant the application as proposed, or modify and grant the application. In either case, it shall give effect to this decision by adopting an ordinance.

ii. The city council shall give effect to a denial by adopting a ordinance pursuant to subsection (N)(5) of this section.

b. Nonproject Rezone. The city council has the option to:

i. Approve the application, or modify and approve the application. In either case, it shall give effect to this decision by adopting an ordinance amending the zoning map of the city.

ii. The city council shall give effect to a denial by adopting a resolution pursuant to subsection (N)(5) of this section.

3. The city council shall use the criteria listed in subsection (M)(3) of this section.

4. The city council shall include in the ordinance or resolution granting the rezone any conditions and restrictions it determines are necessary to eliminate or minimize any undesirable effects of granting the rezone. Any conditions and restrictions that are imposed become part of the decision.

5. The city council shall include in the ordinance or resolution:

a. A statement of the facts that supports the decision, including any conditions and restrictions that are imposed; and

b. The city council's conclusions based on those facts.

6. The decision of city council on an application for either a non-project-related or project-related rezone is the final decision of the city.

O. Following the final decision by the city council, the city manager or designee shall prepare a notice of the city's final decision on the application.

1. After the city council's decision is made, the city manager or designee shall distribute a copy of the notice of the final decision as follows:

a. The applicant.

b. Any person who submitted written or oral comments to the planning commission.

c. Each person who has specifically requested it.

P. Effect of City Council Approval of Project-Related Rezone.

1. The applicant may, subject to all applicable codes and ordinances, develop the subject property in conformity with the resolution of intent to rezone and the site plan approved as part of that resolution.

2. If the applicant completes development of the subject property in conformity with the resolution of intent to rezone and the site plan approved as part of that resolution, the city shall give effect to the rezone by adopting an ordinance that makes the zone boundary or classification change to the zoning map approved in the resolution of intent to rezone.

3. The applicant may not engage in any activity based on the decision until the third working day after the notice of the final decision is distributed under subsection (O) of this section.

4. If the city council approves a quasi-judicial nonproject rezone it will give effect to this decision by adopting an ordinance amending the zoning map of the city.

Q. The action of the city in granting or denying an application under this process may be reviewed pursuant to RCW 36.70C.040 in Pierce County superior court. The land use petition shall be filed within 21 calendar days of the issuance of the final land use decision of the city.

R. The applicant must begin construction, or submit to the city a complete building permit application for the development activity, use of land, or other actions approved under this process within one year after the final decision on the matter, or the decision becomes void, provided the city council may, in the resolution of intent to rezone, extend the time limits contained herein. The applicant must substantially complete construction for the development activity, use of land, or other actions approved under this process and complete the applicable conditions listed in the decision within five years after the final decision of the city on the matter, or the decision becomes void. If litigation is initiated pursuant to this process, the time limits of this section are automatically extended by the length of time between the commencement and final termination of that litigation. If the development activity, use of land, or other action approved under this process includes phased construction, the time limits of this subsection may be extended in the decision on the application.

S. Time Extension.

1. Prior to the lapse of approval for a project-related rezone under subsection (R) of this section, the applicant may submit a written application in the form of a letter with supporting documentation to the community development department requesting a one-time extension of those time limits of up to one year.

2. The request must demonstrate that the applicant is making substantial progress on the development activity, use of land, or other actions approved under this process and that circumstances beyond the applicant's control prevent compliance with the time limits of subsection (R) of this section.

3. The applicant shall include, with the letter of request, the fee as established by the city. The application will not be accepted unless it is accompanied by the required fee.

4. An application for a time extension will be reviewed and decided upon by the city manager or designee.

5. Any person who is aggrieved by the granting or denying of a request for a time extension under this section may appeal that decision. The appellant must file a letter of appeal indicating how the decision on the time extension affects the appellant's property and presenting any relevant material or information supporting the appellant's contention. The appeal will be heard and decided upon using Process III, described in EMC 18.40.100. Any time limit, pursuant to Chapter 36.70B RCW, upon the city's processing and decision upon applications under this process may, except as otherwise specifically stated in this chapter, be modified by a written agreement between the applicant and the city manager or designee.

T. The city may require a bond under EMC 18.30.120, Security mechanisms, to ensure compliance with any aspect of the permit or approval.

U. Complete Compliance Required.

1. Except as specified in subsection (U)(2) of this section, the applicant must comply with all aspects, including conditions and restrictions, of an approval granted under this process in order to do everything authorized by that approval.

2. If a specific use or site plan for the subject property was approved under this process, or any quasi-judicial process under a previous zoning code, the applicant is not required to apply for and obtain approval through this process for a subsequent change in a use or site plan unless:

a. There is a change in use and this chapter establishes different or more rigorous standards for the new use than for the existing use; or

b. The city manager or designee determines that there will be substantial changes in the impacts on the neighborhood or the city as a result of the change. (Ord. 03-203 § 1).

18.40.120 Process V – Legislative review.

A. Various provisions of this chapter indicate that certain proposals to amend the zoning map through a legislative rezone, or amend the comprehensive plan must be reviewed and decided upon using Process V.

B. A proposal that will be reviewed using this process may be initiated by the city council or council committee, or requested by the planning commission, city staff, or any interested person, including applicants, citizens, hearing examiners, and staff of other agencies.

C. The community development department shall maintain a docket of all changes to the comprehensive plan or development regulations and proposed by interested persons (including development applicants, citizens, hearing examiners, and/or other agencies and staff).

D. The State Environmental Policy Act applies to some of the decisions that will be made using this process. The city manager or designee shall evaluate each proposal and, where applicable, comply with the State Environmental Policy Act and with state regulations and city ordinances issued under authority of the State Environmental Policy Act.

E. City Council Review.

1. The city council shall review all requests docketed with the community development department concurrently, on an annual basis and consistent with RCW 36.70A.130(2). As part of such annual review, the council shall review all requests received prior to December 31st of the calendar year. Requests submitted after December 31st shall be considered during the following annual review.

2. The city council shall review city-initiated changes to the text of the comprehensive plan concurrently with docketed amendment requests. The city council may also review or amend the comprehensive plan whenever an emergency exists, to resolve an appeal of the comprehensive plan or amendments thereto, or in other circumstances as provided for by RCW 36.70A.130(2)(a). The city council may also review city-initiated changes to the text of this chapter or to the city's zoning map from time to time at the council's discretion.

3. The city council may request, through the city manager, that the community development department or any other department of the city provide any information or material on the proposal(s), consistent with subsection (Q) of this section.

F. Sixty days prior to December 31st in each calendar year, the city shall notify all persons who submitted application forms after December 31st of the previous calendar year. Notice shall also be given as follows:

1. Public notice notifying the public that the amendment process has begun shall be published in the city's official newspaper.

2. Notice shall be posted on the official city public notice boards.

3. A copy of the notice shall be mailed to other local newspapers.

4. All agencies, organizations, and adjacent jurisdictions with an interest, and all persons, who in the judgement of the city manager or designee may be directly affected by changes to the comprehensive plan shall be sent a copy of the notice. In determining who may be affected by comprehensive plan changes, the director may rely on written correspondence indicating an interest and received after December 31st of the previous year.

G. Any person, personally or through an agent, may apply for a site-specific comprehensive plan designation change with respect to property owned. In addition, any person may, personally or through an agent, request changes to the text of the comprehensive plan or development regulations codified in this chapter.

1. An applicant must complete a docket form prepared by the city. An applicant seeking a site-specific plan or zoning designation change shall also file the information specified in EMC 18.40.110(C)(2) with the community development department.

2. The city manager or designee shall have the authority to waive any of the requirements of this section, if in the director's discretion, such information is not relevant or would not be useful to consideration of the proposed amendment.

3. There is no fee for this initial application. After the prioritization process, applications to be considered during the amendment process shall submit the fee established by the city.

H. Criteria for Prioritizing Plan Amendment Requests.

1. After December 31st, but prior to adopting any amendment requests, the city council shall hold a public hearing and select those amendment requests it wishes to consider for adoption.

2. The city council shall consider the following criteria following a public hearing in selecting the comprehensive plan amendments to be considered during the upcoming cycle:

a. Whether the same area or issue was studied during the last amendment process and conditions in the immediate vicinity have significantly changed so as to make the requested change within the public interest.

b. Whether the proposed amendment is consistent with the overall vision of the comprehensive plan.

c. Whether the proposed amendment meets existing state and local laws, including the Growth Management Act.

d. In the case of text amendments or other amendments to goals and policies, whether the request benefits the city as a whole versus a selected group.

3. If the request meets the criteria set forth in subsections (H)(2)(a) through (d) of this section, it shall be further evaluated according to the following criteria:

a. Whether the proposed amendment can be incorporated into planned or active projects.

b. Amount of analysis necessary to reach a recommendation on the request. If a large-scale study is required, a request may have to be delayed until the following year due to work loads, staffing levels, etc.

c. A large volume of requests may necessitate that some requests be reviewed in a subsequent year.

d. Order of requests received.

4. Based on its review of requests according to the criteria in subsections (H)(2) and (3) of this section, the council shall determine which requests shall be further considered for adoption, and shall forward those requests to the planning commission for its review and recommendation.

5. The council's decision to consider a proposed amendment shall not constitute a decision or recommendation that the proposed amendment should be adopted nor does it preclude later council action to add or delete an amendment for consideration.

I. All applicants seeking an amendment to comprehensive land use designations of the official comprehensive plan (site-specific requests) must apply for a preapplication conference with the city's staff.

J. Legislative Rezones.

1. Legislative rezone is a rezone that meets the following criteria:

a. It is initiated by the city; and

b. It includes a large number of properties which would be similarly affected by the proposed rezone.

2. All other rezones not meeting the above criteria are treated as quasi-judicial rezones and are reviewed and decided upon using Process IV.

K. The city may decide to approve a legislative rezone only if it finds that:

1. The proposal is consistent with the comprehensive plan;

2. The proposal bears a substantial relation to public health, safety, or welfare; and

3. The proposal is in the best interest of the residents of the city.

L. If the city approves a legislative rezone it will give effect to this decision by making the necessary amendment to the zoning map of the city.

M. The city may amend the text of this chapter only if it finds that:

1. The proposed amendment is consistent with the applicable provisions of the comprehensive plan;

2. The proposed amendment bears a substantial relation to public health, safety, or welfare; and

3. The proposed amendment is in the best interest of the residents of the city.

N. The city may consider, but is not limited to, the following factors when considering a proposed amendment to the comprehensive plan:

1. The effect upon the physical environment.

2. The effect on open space, streams, and lakes.

3. The compatibility with and impact on adjacent land uses and surrounding neighborhoods.

4. The adequacy of and impact on community facilities including utilities, roads, public transportation, parks, recreation, and schools.

5. The benefit to the neighborhood, city, and region.

6. The quantity and location of land planned for the proposed land use type and density and the demand for such land.

7. The current and projected population density in the area.

8. The effect upon other aspects of the comprehensive plan.

9. For site-specific comprehensive plan amendments, the provisions of EMC 18.40.110(M) shall also apply.

O. The city may amend the comprehensive plan only if it finds that:

1. The proposed amendment bears a substantial relationship to public health, safety, or welfare; and

2. The proposed amendment is in the best interest of the residents of the city; and

3. The proposed amendment is consistent with the requirements of RCW 36.70A.103 and with the portion of the city's adopted plan not affected by the amendment.

P. Official File.

1. The city manager or designee shall compile an official file containing all information and materials relevant to the proposal and to the city's consideration of the proposal.

2. The official file is a public record. It is available for inspection and copying in the department of community development during regular business hours.

Q. Notice provisions under this section shall be followed for both the public hearing during which all requests for changes to the zoning map, zoning text, and the comprehensive plan are prioritized, as well as the public hearing held on individual requests.

1. The city manager or designee shall prepare a notice of each proposal, for which a public hearing will be held, containing the following information:

a. The citation, if any, of the provision that would be changed by the proposal along with a brief description of that provision.

b. A statement of how the proposal would change the affected provision.

c. A statement of what areas, zones, or locations will be directly affected or changed by the proposal.

d. The date, time, and place of the public hearing.

e. A statement of the availability of the official file.

f. A statement of the right of any person to submit written comments to the planning commission and to appear at the public hearing of the planning commission to give comments orally.

2. The city manager or designee shall distribute this notice at least 14 calendar days before the public hearing following the procedures of EMC 18.40.190, Notice of public hearing. In addition, the procedures of EMC 18.40.150, Determination of completeness, shall be followed for site-specific requests regarding notification of adjacent property owners posting of the site.

R. Staff Report.

1. The city manager or designee shall prepare a staff report containing:

a. An analysis of the proposal and a recommendation on the proposal; and

b. Any other information the city manager or designee determines is necessary for consideration of the proposal, consistent with subsection (E) of this section.

2. The city manager or designee shall distribute the staff report as follows:

a. Each member of the planning commission prior to the hearing.

b. Any person requesting it.

S. The planning commission shall hold public hearings on each proposal, consistent with EMC 18.40.110, Process IV – Quasi-judicial rezones, unless the city council elects to hold its own hearings on the proposal, in which case planning commission review pursuant to this process shall not be required.

1. The hearings of the planning commission are open to the public.

2. Except as provided in subsection (S)(1) of this section, the hearing of the planning commission is the hearing for city council. City council need not hold another hearing on the proposal.

T. Material to be Considered.

1. Except as specified in subsections (T)(2) and (3) of this section, the planning commission and city council may consider any pertinent information or materials in reviewing and deciding upon a proposal under this process.

2. Except as specified in subsection (T)(3) of this section, the city may not consider a specific site plan or project in reviewing and deciding upon a proposal under this process.

3. If a proposal that will be decided upon using this process is part of a specific project, the city may consider all information pertaining to SEPA environmental review and submitted under subsection (D) of this section, in deciding upon that proposal.

U. The planning commission shall make a complete electronic audio recording of each public hearing.

V. Any interested person may participate in the public hearing in either or both of the following ways:

1. By submitting written comments to the planning commission either by delivering these comments to the community development department prior to the hearing or by giving them directly to the planning commission at the hearing.

2. By appearing in person, or through a representative, at the hearing and making oral comments. The planning commission may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing.

W. The planning commission may, for any reason, continue the hearing on the proposal. If, during the hearing, the planning commission announces the time and place of the next public hearing on the proposal and a notice thereof is posted on the door of the hearing room, no further notice of that hearing need be given.

X. Recommendation.

1. Following the public hearing, the planning commission shall consider the proposal in light of the decisional criteria in subsection (H) of this section, and take one of the following actions:

a. If the planning commission determines that the proposal should be adopted, it may, by a majority vote of the entire membership, recommend that city council adopt the proposal.

b. If the planning commission determines that the proposal should not be adopted, it may, by a majority vote of the members present, recommend that city council not adopt the proposal.

c. If the planning commission is unable to take either of the actions specified in subsection (X)(1)(a) or (b) of this section, the proposal will be sent to city council with the notation that the planning commission makes no recommendation.

2. The planning commission may modify the proposal in any way and to any degree prior to recommending the proposal to city council for adoption. If the planning commission fundamentally modifies the proposal, the planning commission shall hold a new public hearing on the proposal as modified prior to recommending the proposal to city council for action.

Y. Report to City Council.

1. The city manager or designee shall prepare a planning commission report on the proposal containing a copy of the proposal, along with any explanatory information, and the planning commission recommendation, if any, on the proposal.

2. The city manager or designee shall transmit the planning commission report to the city manager for consideration by city council.

3. The city manager or designee shall promptly send a copy of the planning commission report to any person requesting it.

Z. City Council Action.

1. Within 60 days of receipt of the planning commission report by the city manager, the city council shall consider the proposal along with a draft ordinance prepared by the city attorney, appropriate to enact or adopt the proposal.

2. In deciding upon the proposal, the city council shall use the decisional criteria listed in the provisions of this chapter describing the proposal.

3. After consideration of the planning commission report and, at its discretion, holding its own public hearing on the proposal, the city council shall by majority vote of its total membership:

a. Approve the proposal by adopting an appropriate ordinance;

b. Modify and approve the proposal by adopting an appropriate ordinance;

c. Disapprove the proposal by resolution; or

d. Refer the proposal back to the planning commission for further proceedings. If this occurs, the city council shall specify the time within which the planning commission shall report back to the city council on the proposal.

AA. At least 60 days prior to final action being taken by the city council, but not prior to the close of the planning commission public hearing and transmittal of planning commission recommendation to the State Department of Community Trade and Economic Development (CTED) and other interested affected local and state agencies, the county and surrounding jurisdictions shall be provided with a copy of the amendments in order to initiate the 60-day comment period. All other parties previously notified shall be again notified that the draft amendments of the comprehensive plan are available on request on a cost recovery basis. No later than 10 days after adoption of the comprehensive plan, a copy of the adopted comprehensive plan shall be forwarded to CTED and others who submitted written comments on the draft comprehensive plan.

BB. The action of the city in granting, modifying or denying an amendment to this chapter or to the comprehensive plan may be reviewed by the Central Puget Sound Growth Management Hearings Board pursuant to RCW 36.70A.280. (Ord. 03-203 § 1).

18.40.130 Preapplication conference.

The purpose of the preapplication conference shall be to acquaint the applicant with the substantive and procedural requirements of the Edgewood Municipal Code and applicable elements of the comprehensive plan, arrange such technical and design assistance as will aid the applicant, and to otherwise identify policies and regulations associated with the proposed development.

A. A preapplication conference shall be required for all Process III and Process IV permits and all Process I and Process II permits that require environmental review. A preapplication conference may also be required for any project subject to the requirements of EMC 18.90.050, Design standards, at the discretion of the city manager or designee. Only one preapplication conference shall be required for all project permit applications related to the same project, though an applicant may elect to arrange multiple preapplication conferences in relationship to a given project. A preapplication conference shall precede the submittal of any project permit application, including an environmental checklist. The city manager or designee may waive, in writing, the requirement for a preapplication conference for proposals that are determined not to be of a size and complexity to require the detailed analysis of a preapplication conference, or as otherwise determined not appropriate for such review.

B. To initiate a preapplication conference, an applicant shall submit a completed form provided by the city and all information pertaining to the proposal as prescribed by administrative procedures of the community development department. Failure to provide all pertinent information may prevent the city from identifying all applicable issues or providing the most effective preapplication conference.

C. It is impossible for the conference to be an exhaustive review of all potential issues. The discussion at the conference or the information form given to the applicant shall not bind or prohibit the city's future application or enforcement of the applicable law, rather, is intended to offer the applicant guidance in preparing a development proposal for submittal. (Ord. 03-203 § 1).

18.40.140 Project permit applications.

A. Applications for all project permits shall be submitted upon forms provided by the city and shall, at a minimum, consist of the materials specified in this section, plus any other materials required on the application form or by this title. Minimum required materials are as follows:

1. A completed development permit application form.

2. An explanation of intent, stating the nature of the proposed development, reasons for the permit request, pertinent background information, information required on the application form, technical reports, studies and data required to address conditions on the site or criteria of the permit or approval requested, and other information that may have a bearing in determining the action to be taken.

3. Proof that the property affected by the application is in the exclusive ownership of the applicant, or that the applicant has the consent of all partners in ownership of the affected property.

4. Legal description of the property affected by the application.

5. Additional information required by other sections of this title because of the type of development proposal or the area involved.

6. The fee established for such application by the city council.

B. Application materials shall be submitted to the city manager or designee who shall have the date of submission indicated on each copy of the materials submitted.

C. Following a determination that an application is complete, the city shall begin project review. (Ord. 03-203 § 1).

18.40.150 Determination of completeness (RCW 36.70B.070).

A. For the purposes of this title, a complete application is one that contains all required information, supporting documentation, and signatures, and which is accompanied by payment of any and all fees as required by the community development department.

1. Time Limitations.

a. Calculation of Time Periods for Issuance of Notice of Final Decision. In determining the number of calendar days that have elapsed after the city has notified the applicant that the application is complete for purposes of calculating the time for issuance of the notice of decision, the following periods shall be excluded:

i. Any period during which the applicant has been requested by the city to correct plans, perform required studies, provide additional required information, or otherwise requires the applicant to act. The period shall be calculated from the date the city notifies the applicant of the need for additional information until the earlier of the date the local government determines whether the additional information satisfies the request for information or 14 calendar days after the date the information has been provided to the city;

ii. If the city determines that the information submitted by the applicant under EMC 18.40.150, Determination of completeness, is insufficient or incorrect;

iii. Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW, if the city by ordinance has established time periods for completion of environmental impact statements, or if the city and the applicant in writing agree to a time period for completion of an environmental impact statement;

iv. Any period for administrative appeals of project permit applications, if an open record appeal hearing or a closed record appeal, or both, are allowed. The time period for consideration and decision on appeals shall not exceed:

(A) Ninety calendar days for an open record appeal hearing; or

(B) Sixty calendar days for a closed record appeal, unless the parties agree to extend these time periods; and

2. Any extension of time mutually agreed upon by the applicant and the local government.

3. The time limits established in this section do not apply if a project permit application:

a. Requires an amendment to the comprehensive plan or a development regulation;

b. Requires approval of the siting of an essential public facility as provided in RCW 36.70A.200; or

c. Is substantially revised by the applicant, in which case the time period shall start from the date at which the revised project application is determined to be complete pursuant to this section.

4. If the city is unable to issue its final decision within the time limits provided in this chapter, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of a final decision. The city is not liable for damages due to the city's failure to make a final decision within the time limits established in this chapter.

B. Within 28 calendar days after receiving a project permit application for review for completeness, the city shall mail or personally provide a written determination of completeness to the applicant which to the extent known by the city identifies other agencies with jurisdiction over the project permit application and states either that the application is complete; or that the application is incomplete and what is necessary to make the application complete. If the city does not provide a written determination to the applicant that the application is incomplete, the application shall be deemed complete. The time period guidelines for review of project permit applications begin following the determination of a complete application. The city's determination of completeness shall not preclude the city from requesting additional information or studies either at the time of the notice of completeness or at some later time, if new or additional information is required or where there are substantial changes in the proposal.

C. Prior to a determination of a complete application, if the applicant receives a written determination from the city that an application is not complete, the applicant shall have up to 90 calendar days to submit the necessary information to the city. Within 14 calendar days after an applicant has submitted the requested additional information, the city shall make the determination as described in subsection (B) of this section, and notify the applicant in the same manner. If the applicant either refuses, in writing, to submit additional information, or does not submit the required information within the 90 calendar day period, the application shall lapse because of a lack of information necessary to complete the review.

D. An application shall be considered complete when it contains the following:

1. The correct number of completed application forms signed by the applicant which contain a detailed description of the proposed land use, proposed impervious surface, and description of all existing and proposed improvements and easements;

2. The correct number of documents, plans, or maps identified in the applicable application, as appropriate for the proposed project;

3. A completed State Environmental Policy Act checklist, if required;

4. For preliminary plats only, a complete land survey of the perimeter of the site;

5. All studies and materials demonstrating compliance with the Edgewood Municipal Code;

6. Water availability letter (this requirement is for preliminary plats and short plats only);

7. Conceptual stormwater plans (this requirement is for preliminary plats and short plats only);

8. Payment of all applicable fees pursuant to the adopted fee schedule. In the event of insufficient funds on a draft, the application shall be deemed null and void;

9. Proposed applications shall be consistent with the comprehensive plan and applicable development regulations. (Ord. 03-203 § 1).

18.40.160 Incorrect applications.

A. Following a determination of a complete application and the commencement of project review, the city may make a determination in writing that some information is incorrect and require that corrected information be submitted. The applicant shall have up to 90 calendar days to submit corrected information. The city shall have 14 calendar days to review the submittal of corrected information.

B. If the corrected information is still not found to be sufficient, the city shall notify the applicant in writing that the submitted information is incorrect, and the time period set forth in subsection (A) of this section shall be repeated. This process may continue until complete or corrected information is obtained.

C. If the requested corrected information is sufficient, the city shall continue with project review, in accordance with the time calculations exclusions set forth in EMC 18.40.150, Determination of completeness. If the applicant either refuses in writing to submit corrected information or does not submit the corrected information within the 90 calendar day period, the application shall lapse.

D. Appeal of an administrative determination of an incomplete or incorrect application shall be made pursuant to EMC 18.40.090(L), Appeals. (Ord. 03-203 § 1).

18.40.170 Referral of applications.

Within 10 calendar days of determining a complete application, the city manager or designee shall transmit a copy of the application, or appropriate parts of the application, to each appropriate agency and city department for review and comment, including those responsible for determining compliance with state, federal and county requirements. The affected agencies and city departments shall have 15 calendar days to comment. The referral agency or city department is presumed to have no comments if comments are not received within the specified time period. The city manager or designee may grant an extension of time if the application involves unusual circumstances. (Ord. 03-203 § 1).

18.40.180 Notice of application (RCW 36.70B.060).

A. A notice of application shall be issued within 14 calendar days after the city has made a determination of completeness pursuant to EMC 18.40.150, Determination of completeness, for all Process I, and Process II permits that require SEPA review, and all short plats, and all Process III and Process IV applications; provided, that the notice of application shall be provided at least 15 calendar days prior to any required open record hearing. One notice of application shall be completed for all permit applications related to the same project at the time of the earliest complete permit application.

B. A notice of application shall not be required for project permits that are categorically exempt under SEPA, WAC 197-11-800(a) through (d), Categorical Exemptions, unless a public comment period or an open record hearing is required prior to the decision on the project.

C. The notice of application shall include:

1. The case file number(s), the date of application, the date of the determination of completeness for the application and the date of the notice of application;

2. A description of the proposed project action and a list of the project permits included in the application and, if applicable, a list of any studies requested by the review authority pursuant to RCW 36.70B.070;

3. The identification of other required permits which are not included in the application, to the extent known by the city;

4. The identification of existing environmental documents that evaluate the proposed project, and, if not otherwise stated on the document providing notice of application, the location where the application and any studies can be reviewed;

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

6. The tentative date, time, place and type of hearing. The tentative hearing date is to be set at the time of the date of notice of the application;

7. A statement of those development regulations that will be used for project mitigation and of consistency as provided in EMC 18.30.050, Consistency with comprehensive plan, development regulations, and State Environmental Policy Act;

8. The name of the applicant or applicant's representative and the name, address and telephone number of a contact person for the applicant, if any;

9. A description of the site, including current zoning and nearest road intersections, reasonably sufficient to inform the reader of its location; and

10. Any other information determined appropriate by the city, such as a determination of significance, if complete at the time of issuance of the notice of application or the city's statement of intent to issue a DNS pursuant to the optional DNS process set forth in WAC 197-11-355.

D. The city shall mail a copy of the notice of application to the following:

1. The applicant.

2. Agencies with jurisdiction.

3. Any person who requests such notice in writing.

4. Parties of record.

E. All public comments on the notice of application must be received by the community development department or postmarked by 5:00 p.m. on the last day of the comment period. Comments may be mailed, personally delivered or sent by facsimile. Comments should be as specific as possible.

F. In addition to the mailed notice of application, the city will provide notice of application at Edgewood City Hall and posted on the subject property. The available records of the Pierce County assessor's office shall be used for determining the property taxpayer of record. Addresses for mailed notice shall be obtained from the city GIS records provided by the city. All public notices shall be deemed to have been provided or received on the date the notice is deposited in the mail or personally delivered, whichever occurs first. Failure to provide public notice as described in this chapter or irregularity in said notice shall not be grounds for invalidation of any permit decision. In addition to persons to receive notice as required by the matter under consideration, the city manager or designee shall provide notice to others he has reason to believe are affected or otherwise represent an interest that may be affected by the proposed development.

G. The applicant shall be responsible for posting a notice board (provided by the city for a fee) on the property. Public notice shall be accomplished through the use of city poster boards as follows:

1. Posting. Posting of the property for site-specific proposals shall consist of one or more notice boards as follows:

a. A single notice board shall be placed by the applicant in a conspicuous location on a street frontage bordering the subject property.

b. Each notice board shall be visible and accessible for inspection by members of the public.

c. Additional notice boards may be required when:

i. The site does not abut a public road; or

ii. Additional public notice boards are required under other provisions of the Edgewood Municipal Code; or

iii. The city manager or designee determines that additional notice boards are necessary to provide adequate public notice.

d. Notice boards should be:

i. Installed in accordance with specifications determined by the community development department, and placed securely in the ground;

ii. Maintained in good condition by the applicant during the notice period;

iii. In place at least 15 calendar days prior to the end of any required comment period; and

iv. Removed by the applicant within 10 calendar days after the end of the notice period or final hearing date.

e. Notice boards that are removed, stolen, or destroyed prior to the end of the notice period may be cause for discontinuance of the departmental review until the notice board is replaced and remains in place for the specified time period. The city shall notify the applicant when it comes to their attention that notice boards have been removed prematurely, stolen, or destroyed.

f. An affidavit of posting shall be submitted by the applicant at least seven calendar days prior to the hearing. If the affidavits are not filed as required, any scheduled hearing or date by which the public may comment on the application may be postponed in order to allow compliance with this notice requirement.

g. SEPA information shall be supplied by the city and added by the applicant to the posted sign within applicable deadlines. Applicant shall submit an affidavit of posting.

H. Published notice of application in an official newspaper of general circulation in the area where the proposal is located is required for Process I, and Process II permits that require SEPA review, and all short plats, and all Process III and Process IV applications, except subdivision final plats and appeals. Published notice shall include at least the following information:

1. Project location;

2. Project description;

3. Type of permit(s) required;

4. Comment period dates; and

5. The location where the complete application may be reviewed. (Ord. 03-203 § 1).

18.40.190 Notice of public hearing.

A. Notice of public hearing is required for all types of applications for which a public hearing is held. Notice of public hearing shall be reasonably calculated to give actual notice and shall contain the following information:

1. The name of the applicant or the applicant's representative;

2. Description of the affected property, which may be in the form of either a vicinity location sketch or written description, other than a legal description;

3. The date, time, and place of the hearing;

4. The nature of the proposed use or development;

5. A statement that all interested persons may appear and provide testimony;

6. When and where information may be examined, and when and how written comments addressing findings required for a decision by the hearing body may be admitted;

7. The name of a city representative to contact and the telephone number where additional information may be obtained;

8. That a copy of the application, all documents and evidence relied upon by the applicant and applicable criteria are available for inspection at no cost and will be provided at the cost of reproduction; and

9. That a copy of the staff report will be available for inspection at no cost at least five calendar days prior to the hearing and copies will be provided at the cost of reproduction.

B. Mailed notice of the public hearing shall be provided by the city as follows:

1. All owners of real property as shown by the records of the county assessor's office within 300 feet of the subject property; and

2. Any person who submits written comments on an application.

3. For Process V legislative actions, the city shall publish notice as described in this section, and use all other methods of notice as required by RCW 35A.12.160.

C. Procedure for Posted and/or Published Notice of Public Hearing.

1. Posted notice of the public hearing is required for all Process III and Process IV permit actions. The posted notice of hearing shall be added to the sign already posted on the property pursuant to EMC 18.40.180, Notice of application.

2. Published notice of the public hearing is required for all Process III and Process IV procedures. The published notice shall be published at least once in a newspaper of general circulation within the city and contain the following information:

a. Project location;

b. Project description and nature of issues to be discussed at the hearing;

c. Type of permit(s) required;

d. Comment period dates and how written comments addressing findings required for a decision by the hearing body may be submitted; and

e. The location where the complete application may be reviewed.

D. Notice shall be mailed, posted and first published not less than 15 nor more than 30 days prior to the hearing requiring the notice. Any posted notice shall be removed by the applicant within 10 calendar days following the conclusion of public hearing(s).

E. Open record hearings shall be conducted in accordance with this section. The city manager or designee shall be responsible for the hearing and shall:

1. Schedule an application for review and public hearing;

2. Give notice; however, applicant is responsible for some of the notice requirements;

3. Prepare the staff report on the application, which shall be a single report stating all of the decisions made as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall state any mitigation required or proposed under the development regulations or the city's authority under SEPA. If the threshold determination other than a determination of significance has not been issued previously by the city, the report shall include or append this determination. In the case of a Process I or Process II project permit application, this report may be the permit; and

4. Prepare the notice of decision, if required by the hearing body, and/or mail a copy of the notice of decision to those required by this code to receive such decision.

5. The hearing body shall be subject to the code of ethics and prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23 RCW, as the same now exists or may hereafter be amended.

6. Ex Parte Communications.

a. No member of the hearing body may communicate, directly or indirectly, regarding any issue in a quasi-judicial proceeding before them, other than to participate in communications necessary to procedural aspects of maintaining an orderly process, unless they provide notice and opportunity for all parties to participate; except as provided in this section:

i. The hearing body may receive advise from legal counsel; or

ii. The hearing body may communicate with staff members, except where the proceeding relates to a code enforcement investigation or prosecution.

b. If, before serving as the hearing body in a quasi-judicial proceeding, any member of the hearing body receives an ex parte communication of a type that could not properly be received while serving, the member of the hearing body, promptly after starting to serve, shall disclose the communication as described in subsection (E)(3)(c) of this section.

c. If the hearing body receives an ex parte communication in violation of this section, they shall place on the record:

i. All written communications received;

ii. All written responses to the communications;

iii. The substance of all oral communications received and all responses made; and

iv. The identity of each person from whom the hearing body received any ex parte communication.

d. The hearing body shall advise all parties that these matters have been placed on the record.

e. Upon request made within 10 calendar days after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a rebuttal statement on the record.

7. Disqualification.

a. Any member who is disqualified may be counted only by making full disclosure to the audience, abstaining from voting on the disqualification, vacating the seat on the hearing body and physically leaving the hearing.

b. If all members of the hearing body are disqualified, all members present after stating their reasons for disqualification shall be requalified and shall proceed to resolve the issues.

c. Except for Process IV actions, a member absent during the presentation of evidence in a hearing may not participate in the deliberations or decision unless the member has reviewed the evidence received.

8. The burden of proof is on the proponent, pursuant to EMC 18.30.090, Burden of proof. The project permit application must be supported by proof that it conforms to the applicable elements of the city's development regulations, comprehensive plan and that any significant adverse environmental impacts have been adequately addressed.

9. The order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate.

a. Before receiving information on the issue, the following shall be determined:

i. Any objections on jurisdictional grounds shall be noted on the record and if there is objection, the hearing body has the discretion to proceed or terminate; and

ii. Any abstentions or disqualification shall be determined.

b. The presiding officer may take official notice of known information related to the issue, such as:

i. A provision of any ordinance, resolution, rule, officially adopted development standard or state law; and

ii. Other public records and facts judicially noticeable by law.

c. Matters officially noticed need not be established by evidence and may be considered by the hearing body in its determination. Parties requesting notice shall do so on the record; however, the hearing body may take notice of matters listed in subsections (E)(6)(a) and (b) of this section if stated for the record. Any matter given official notice may be rebutted.

d. The hearing body may view the area in dispute with or without notification to the parties, but shall place the time, manner, and circumstances of such view on the record.

e. Information shall be received from the staff and from proponents and opponents. The presiding officer may approve or deny a request from a person attending the hearing to ask a question. Unless the presiding officer specifies otherwise, if the request to ask a question is approved, the presiding officer will direct the question to the person submitting testimony.

f. When the presiding officer has closed the public hearing portion of the hearing, the hearing body shall openly discuss the issue and may further question a person submitting information or the staff if opportunity for rebuttal is provided.

10. The hearing body shall issue a recommendation or decision, as applicable, within 14 calendar days of the record being closed.

11. A party of record may ask for a reconsideration of a decision by the hearing examiner for a Process III action or a recommendation by the planning commission for a Process IV action. Reconsideration is not authorized for Process I and Process II applications. A reconsideration may be requested if either:

a. A specific error of fact or law can be identified; or

b. New evidence is available which was not available at the time of the hearing.

c. A request for reconsideration shall be filed by a party of record within seven working days of the date of the initial decision/recommendation. Any reconsideration request shall cite specific references to the findings and/or criteria contained in the ordinances governing the type of application being reviewed. A request for reconsideration temporarily suspends the appeal deadline. The hearing examiner shall promptly review the reconsideration request and within 10 working days issue a written response, either approving or denying the request. If the reconsideration is denied, the appeal deadline of the hearing examiner's decision shall recommence for the remaining number of days. If a request for reconsideration is accepted, a decision is not final until after a decision on reconsideration is issued.

F. The city manager or designee may combine any public hearing on a project permit application with any hearing that may be held by another local, state, regional, federal, or other agency, on the proposed action, as long as:

1. The other agency consents to the hearing;

2. The other agency is not expressly prohibited by statute from doing so;

3. Sufficient notice of the hearing is given to meet each of the agencies' adopted notice requirements as set forth in statute, ordinance, or rule;

4. The agency has received the necessary information about the proposed project from the applicant in enough time to hold its hearing at the same time as the local government hearing; and

5. The hearing is held within the Edgewood city limits.

An applicant may request that the public hearing on a permit application be combined as long as the hearing can be held within the time periods set forth in this chapter. In the alternative, the applicant may agree to a particular schedule if additional time is needed in order to complete the hearings.

G. Following a decision of a project permit by the applicable decision-making body, the city shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for appeal.

1. The notice of decision shall be issued within 120 calendar days after the city notifies the applicant that the application is complete. The time frames set forth in this section shall apply to project permit applications filed on or after the effective date of this title.

2. The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.

3. Notice of the decision shall be provided to the public as set forth in EMC 18.40.190, Notice of public hearing. The city shall provide notice of the decision to the county assessor's office if affected property owners' request a change in valuation for property tax purposes.

4. If the city is unable to issue its final decision on a project permit application within the time limits provided for in this chapter, it shall provide written notice of this fact to the parties of record. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision.

H. Closed Record Hearings and Administrative Appeals.

1. This section allows for administrative appeals as provided in the framework in EMC 18.40.090, Process II – Administrative action. Administrative appeals are heard by the hearing examiner or city council, as applicable.

2. Consolidated Appeals.

a. All appeals of project permit application decisions, other than an appeal of determination of significance (DS), shall be considered together in a consolidated appeal.

b. Appeals of environmental determinations under EMC Title 20, SEPA, including administrative appeals of a threshold determination shall proceed as provided in that chapter.

3. Only parties of record may initiate an administrative appeal on a project permit application.

4. An appeal must be filed as specified in EMC 18.40.090(L), Appeals.

5. Appeals shall be in writing, be accompanied by an appeal fee as set by the city council, and contain all the information as specified in EMC 18.40.090(L), Appeals.

6. The timely filing of an appeal shall stay the effective date of the decision until such time as the appeal is adjudicated by the hearing examiner or city council, as applicable, or is withdrawn.

7. Public notice of the appeal shall be given as provided in EMC 18.40.190, Notice of public hearing.

8. The closed record decision/appeal hearing shall be on the record before the hearing body and no new evidence may be presented. The following subsections of this title shall apply to a closed record decision/appeal hearing:

a. Subsection (E)(2) of this section;

b. Subsection (E)(3) of this section;

c. Subsection (E)(4) of this section;

d. Subsection (E)(5) of this section;

e. Subsection (E)(6) of this section;

f. Subsection (G) of this section.

I. Judicial Appeals.

1. The city's final decision or appeal decision on a Process I, II, III, IV, or V application may be appealed by a party of record with standing to file a land use petition in Pierce County superior court.

2. A land use petition must be filed within 21 calendar days of issuance of the notice of decision or appeal decision.

3. A land use petition shall be filed according to the procedural standards outlined in Chapter 36.70C RCW, Judicial Review of Land Use Decisions, also known as the “Land Use Petition Act.” (Ord. 03-203 § 1).