4-8-110 APPEALS:

A. SCOPE AND PURPOSE:

This Section provides the basic procedures for processing all types of land use and development-related appeals. Specific requirements are based upon the type/level of appeal and the appeal authority. Procedures for the following types of appeals are included in this Section:

1. Appeals of administrative decisions to Public Works Administrator; (Ord. 5450, 3-2-2009; Ord. 5676, 12-3-2012)

2. Appeals to Hearing Examiner of administrative decisions and environmental determinations;

3. Appeals to City Council;

4. Appeals to Superior Court;

5. Appeals to the State Shorelines Hearings Board;

6. Appeals to the Growth Management Hearings Board; and

7. Appeals of administrative decisions to Community and Economic Development Administrator. (Ord. 5154, 9-26-2005; Ord. 5157, 9-26-2005; Ord. 5450, 3-2-2009; Ord. 5676, 12-3-2012)

B. DECISION AUTHORITY:

RMC 4-8-080G, Land Use Permit Procedures, lists the development permits reviewed by the City and the review authority responsible for open record appeals, closed record appeals and judicial appeals. Where required permits are subject to different types of permit review procedures, then all the applications are subject to the highest-number procedure, as identified in RMC 4-8-080G, and highest level of review authority, as identified in RMC 4-8-070, that applies to any of the applications. (Ord. 4587, 3-18-1996; Amd. Ord. 4660, 3-17-1997; Ord. 4963, 5-13-2002)

C. GENERAL INFORMATION APPLICABLE TO ALL TYPES OF APPEALS:

1. Standing: (Reserved)

2. Time to File: Unless otherwise specified in Title IV or in state law, the fourteen (14) calendar-day appeal period shall begin either three (3) calendar days after the date of mailing of the decision to the parties of record via US Postal mail by the City Clerk, or the date the decision is electronically transmitted, posted or e-mailed to the appellant and parties of record by the City Clerk, if such electronic transmittal method has been previously approved or agreed to by the parties. (Ord. 5676, 12-3-2012)

3. Required Form for and Content of Appeals: Any appeal shall be filed in writing. The written notice of appeal shall fully, clearly and thoroughly specify the substantial error(s) in fact or law which exist in the record of the proceedings from which the appellant seeks relief. (Ord. 4353, 6-1-1992)

4. Filing of Appeal and Fee: The notice of appeal shall be accompanied by a fee in accordance with RMC 5-1-9, the fee schedule of the City. (Ord. 3658, 9-13-1982; Ord. 5660, 5-14-2012)

5. Facsimile Filings: Whenever any application or filing is required under this Chapter, it may be made by facsimile. Any facsimile filing received at the City after five o’clock (5:00) p.m. on any business day will be deemed to have been received on the following business day. Any facsimile filing received after five o’clock (5:00) p.m. on the last date for filing will be considered an untimely filing. Any party desiring to make a facsimile filing after four o’clock (4:00) p.m. on the last day for the filing must call the Hearing Examiner’s office or other City official with whom the filing must be made and indicate that the filing is being made by facsimile and the number to which the facsimile copy is being sent. The filing party must ensure that the facsimile filing is transmitted in adequate time so that it will be completely received by the City before five o’clock (5:00) p.m. in all instances in which filing fees are to accompany the filing of an application, those filing fees must be received by the City before the end of the business day on the last day of the filing period or the filing will be considered incomplete and will be rejected. (Ord. 4353, 6-1-1992)

6. Notice of Appeal: (Reserved)

7. Restrictions on Subsequent Actions: Any later request to interpret, explain, modify, or retract the decision shall not be deemed to be a new administrative determination creating a new appeal period for any new third party to the permit. (Ord. 4168, 8-8-1988)

8. Limit on Number of Appeals: Per RCW 43.21.075, the City has consolidated the permit process to allow for only one open record appeal of all permit decisions associated with a single development application.

There shall be no more than one appeal on a procedural determination or environmental determination such as the adequacy of a determination of significance, nonsignificance, or of a final environmental impact statement.

Any appeal of the action of the Hearing Examiner in the case of appeals from environmental determinations shall be joined with an appeal of the substantive determination. (Ord. 3891, 2-25-1985; Ord. 4587, 3-18-1996; Ord. 4660, 3-17-1997; Ord. 5608, 6-6-2011)

9. Exhaust of Administrative Remedies: (Reserved)

D. APPEALS OF ADMINISTRATIVE DECISIONS TO THE PUBLIC WORKS DEPARTMENT:

Any decisions made in the administrative process related to the City’s storm drainage regulations may be appealed to the Public Works Administrator within fifteen (15) days and filed, in writing, with the Public Works Department. The Administrator shall give substantial weight to any discretionary decision of the City rendered pursuant to this Chapter. (Ord. 4342, 2-3-1992; Ord. 5156, 9-26-2005; Ord. 5450, 3-2-2009; Ord. 5676, 12-3-2012)

E. APPEALS TO HEARING EXAMINER OF ADMINISTRATIVE DECISIONS AND ENVIRONMENTAL DETERMINATIONS:

1. Applicability and Authority:

a. Administrative Determinations: Any administrative decisions made may be appealed to the Hearing Examiner, in writing, filed with the City Clerk.

b. Environmental Determinations: Except for permits and variances issued pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any proposal or action is granted, conditioned, or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the Hearing Examiner under the provisions of this Section.

2. Optional Request for Reconsideration:

a. When a reconsideration request has been submitted, the matter shall be held in abeyance pending the outcome of the reconsideration. A new fourteen (14) calendar day appeal period shall commence upon the issuance of the reconsideration.

b. In order to request reconsideration, the person or entity must have been made a party of record, or submitted written comments to City staff prior to the issuance of the determination for which the reconsideration is being requested.

3. Standing: Unless otherwise provided by state law or exempted by a state or federal agency, only the applicant, City or a person who has been made a party of record prior to the issuance of a decision may appeal the administrative or environmental decision. In order to appeal the person or entity shall be aggrieved or affected by the administrative or environmental decision.

In order to be aggrieved, the person or entity must demonstrate the following:

a. An injury in fact, in that the person or entity will be specifically and perceptively harmed; and

b. That the interest the person or entity seeks to protect is arguably within the zone of interests to be protected or regulated.

4. Time for Appeal: Any such appeal shall be made in writing and filed with the City Clerk’s office, together with the applicable appeal fee, within fourteen (14) calendar days of the final decision or publication of the final decision, whichever occurs later, except in the case of a Final EIS, in which the appeal shall be made within twenty (20) calendar days of the publication of the final decision.

5. Clarification of Appeal: If the appeal is unclear and does not sufficiently explain the basis for the appeal, the Hearing Examiner may issue an order requiring that the appellant amend the appeal within ten (10) calendar days of the date of the order. If the appeal is not satisfactorily amended within the time allowed, it shall be dismissed.

6. Motions: The Hearing Examiner may dismiss an appeal, without hearing, when it is determined by the Hearing Examiner to be untimely, without merit on its face, incomplete, or frivolous. Any application to the Hearing Examiner for an order shall be by motion which, unless made during a hearing, shall be in writing, stating the reasons for the request and setting forth the relief or order sought. Written motions shall be received at least five (5) business days in advance of the hearing.

7. Parties: The parties in appeal hearings shall be the City, the applicant, and the appellant(s), if different from the applicant or the City. No other persons shall be allowed to testify unless serving as a witness to one of the parties.

8. Notice of Hearing Required: A written notice of the time and place of the hearing at which the appeal shall be considered by the Hearing Examiner shall be mailed to the applicant, all parties of record in the case, and to the officer from whom the appeal is taken not less than ten (10) calendar days prior to the date of the hearing.

9. Format of the Appeal Hearing: The appeal hearing will be of an informal nature, but organized so that testimony and other evidence can be presented efficiently. An appeal hearing shall include at least the following:

a. An introductory outline of the procedure by the Hearing Examiner.

b. Presentation by the appellant, including any witnesses.

c. Cross-examination, if any, of appellant and appellant’s witnesses.

d. Presentation by City staff, summarizing the staff analysis and including any witnesses for the City.

e. Cross-examination, if any, of City staff and staff’s witnesses.

f. Presentation by the project applicant, if different from appellant, including any witnesses.

g. Cross-examination of any of the project applicant and applicant’s witnesses.

h. Rebuttal testimony and closing by City staff.

i. Rebuttal testimony and closing by applicant, if different from appellant.

j. Rebuttal testimony and closing by appellant.

10.  Prehearing Conference: The Hearing Examiner may schedule and hold a prehearing conference when it appears that the orderly and efficient conduct of the hearing will be served, or that settlement of the appeal through such a conference is likely. A prehearing conference may, among other things, consider:

a. Simplification of the issues.

b. The existence of undisputed facts to which the parties are willing to stipulate.

c. The identification of witnesses and documentary or other evidence to be presented at hearing.

d. Any reasonable needs any party may have for discovering the details of the case the other party intends to present.

e. The imposition of reasonable time limits.

Based upon the discussions and agreements at such a conference, the Hearing Examiner may enter a prehearing order, which shall govern subsequent proceedings. If the case is settled at such a conference, the Hearing Examiner shall enter an order reciting the terms of the settlement and dismissing the appeal.

11. Content of the Record: The record of an appeal hearing conducted by the Hearing Examiner shall include at least the following:

a. The notice of appeal and any amendments.

b. The staff analysis responding to the appeal and all accompanying documents, including the papers that comprise the record of the decision subject to appeal.

c. Additional documentary or physical evidence received and considered, including all exhibits filed.

d. The Hearing Examiner's decision.

e. Electronic recordings of the proceedings and/or an accurate written transcription thereof.

12. Hearing Examiner Decision:

a. Substantial Weight: The procedural determination by the Environmental Review Committee or City staff shall carry substantial weight in any appeal proceeding. The Hearing Examiner shall give substantial weight to any discretionary decision of the City rendered pursuant to this Chapter/Title.

b. Hearing Examiner Decision Options and Decision Criteria: The Hearing Examiner may affirm the decision or remand the case for further proceedings, or it may reverse the decision if the substantial rights of the applicant may have been prejudiced because the decision is:

i. In violation of constitutional provisions; or

ii. In excess of the authority or jurisdiction of the agency; or

iii. Made upon unlawful procedure; or

iv. Affected by other error of law; or

v. Clearly erroneous in view of the entire record as submitted; or

vi. Arbitrary or capricious.

c. Time for Hearing Examiner’s Decision: The Hearing Examiner shall render a written decision within fourteen (14) business days.

d. Collateral Estoppel (Issue Preclusion): The Hearing Examiner may deny a party’s request to relitigate one or more issues or determinative facts decided or ruled upon in a previous litigation if the party against whom the collateral estoppel doctrine is to be applied had a full and fair opportunity to litigate the issue in the prior proceeding. The party requesting application of the collateral estoppel doctrine must establish by a preponderance of the evidence that (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding; and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. The Hearing Examiner may apply collateral estoppel, sua sponte.

e. Res Judicata (Claim Preclusion): The Hearing Examiner may apply a prior ruling or summarily decide an action or appeal if the current, pending or proposed action or appeal is substantially identical to a prior action or appeal in four (4) respects (1) the same persons and parties or a person or party in privity with the prior person or party; (2) causes of action that substantially involve the same rights or interest, the same evidence, an infringement of substantially the same rights or interests, or the two (2) actions or appeals arise out of substantially the same facts; (3) subject matter is identical or substantially the same; and (4) at least one or more of the parties are bound by the prior judgment or ruling. The party requesting application of the res judicata doctrine does not have to prove each factor, but must prove by a preponderance of the evidence that application of res judicata is appropriate. The Hearing Examiner may apply res judicata, sua sponte.

f. Full and Fair Opportunity: Failure to seek or obtain evidence or information that existed at the time of the prior proceeding does not establish that a party did not have a full or fair opportunity to litigate an issue or change the subject matter of an action or appeal.

13. Optional Request for Reconsideration:

a. When a reconsideration request has been submitted, the matter shall be held in abeyance pending the outcome of the reconsideration. A new fourteen (14) day appeal period shall commence upon the issuance of the reconsideration.

b. In order to request reconsideration, the person or entity must have been made a party of record prior to the close of the hearing, participated in the hearing or have submitted written comments to the Hearing Examiner prior to the close of the hearing.

14. Appeal of Hearing Examiner Decision to City Council: Unless a specific section or state law providing for review of decision of the Hearing Examiner requires review thereof by the Superior Court or other body, all other appeals of the Hearing Examiner’s decision shall be made to the City Council within fourteen (14) calendar days from the date of the Hearing Examiner’s written report. (Ord. 3454, 7-28-1980; Ord. 3891, 2-25-1985; Ord. 3992, 5-19-1986; Ord. 4168, 8-8-1988; Ord. 4346, 3-9-1992; Ord. 4351, 5-4-1992; Ord. 4401, 5-3-1993; Ord. 4521, 6-5-1995; Ord. 4551, 9-18-1995; Amd. Ord. 4827, 1-24-2000; Ord. 4899, 3-19-2001; Ord. 5153, 9-26-2005; Ord. 5558, 10-25-2010; Ord. 5675, 12-3-2012)

F. APPEALS TO CITY COUNCIL – PROCEDURES:

1. Standing: Unless otherwise provided by State law or exempted by a State or federal agency, only the applicant, City or a party of record who has been aggrieved or affected by the Hearing Examiner’s decision and who participated in the Hearing Examiner’s public hearing may appeal the Hearing Examiner’s decision. A person(s) will be deemed to have participated in the public hearing process if that person(s):

a. Testified or gave oral comments at the public hearing; or

b. Submitted any written comments to City staff or the Hearing Examiner regarding the matter prior to the close of the hearing; or

c. Has been granted status as or has requested to be made a party of record prior to the close of the public hearing.

2. Notice to Parties of Record: Within five (5) days of receipt of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the appeal.

3. Opportunity to Provide Comments: Parties of record may submit letters in support of their positions within ten (10) days of the dates of mailing of the notification of the filing of the notice of appeal.

4. Council Review Procedures: No public hearing shall be held by the City Council. No new or additional evidence or testimony shall be accepted by the City Council. The cost of transcription of the hearing record shall be borne by the applicant. If a transcript is made, the applicant is required to provide a copy to the City Clerk and the Renton City Attorney at no cost. It shall be presumed that the record before the City Council is identical to the hearing record before the Hearing Examiner. (Ord. 5675, 12-3-2012)

5. Burden: The burden of proof shall rest with the appellant.

6. Council Evaluation Criteria: The consideration by the City Council shall be based solely upon the record, the Hearing Examiner’s report, the notice of appeal and additional arguments based on the record by parties.

7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-8-070H1, as it exists or may be amended, and after examination of the record, the Council determines that a substantial error in fact or law exists in the record, it may modify or reverse the decision of the Hearing Examiner accordingly. (Ord. 5675, 12-3-2012)

8. Decision Documentation: The decision of the City Council shall be in writing and shall specify any modified or amended findings and conclusions other than those set forth in the report of the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record.

9. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames established under subsection G5 of this Section. (Ord. 3658, 9-13-1982; Ord. 4389, 1-25-1993; Ord. 4660, 3-17-1997; Ord. 5558, 10-25-2010)

G. APPEALS TO SUPERIOR COURT:

1. Intent: Appeals pursuant to this Section are intended to comply with the Land Use Petition Act, chapter 36.70C RCW. (Ord. 4587, 3-18-1996, Amd. Ord. 4660, 3-17-1997)

2. Applicability: Any decision or order issued by the City pursuant to this Section may be judicially reviewed provided that available administrative appeals, including those listed in RMC 4-9-250D, have been exhausted. (Ord. 4346, 3-9-1992)

3. Standing: Those persons with standing to bring an appeal of a land use decision are limited to the applicant, the owner of property to which land use decisions are directed, and any other person aggrieved or adversely affected by the land use decision or who would be aggrieved or adversely affected by a reversal or modification of the land use decision. The terms “aggrieved” and “adversely affected” are defined in RCW 36.70C.060.

4. Content of Appeal Submittal: The content, procedures and other requirements of an appeal of land use decision are governed by chapter 36.70C RCW which is incorporated herein by reference as if fully set forth.

5. Time for Initiating Appeal to Superior Court:

a. Appeals of Land Use Decisions: An appeal to Superior Court of a land use decision, as defined herein, must be filed within twenty one (21) days of the issuance of the land use decision. For purposes of this Section, the date on which a land use decision is issued is:

i. Three (3) days after a written decision is mailed by the City or, if not mailed, the date on which the local jurisdiction provided notice that a written decision is publicly available;

ii. If the land use decision is made by ordinance or resolution by the City Council, sitting in a quasi-judicial capacity, the date the body passes the ordinance or resolution; or

iii. If neither (i) or (ii) of this subsection applies, the date the decision is entered into the public record. (Ord. 4587, 3-18-1996, Amd. Ord. 4660, 3-17-1997)

b. Appeal of Environmental Determinations: Appeal to the Superior Court of the environmental decision and the substantive determination must be made within twenty (20) days of the substantive determination and must be made by writ of review to the Superior Court of Washington for King County. (Ord. 3891, 2-25-1985)

6. Appeals of Other Than Land Use Decisions – Superior Court: Appeals to Superior Court from decisions other than a land use decision, as defined herein, shall be appealed within the time frame established by ordinance. If there is no appeal time established by an ordinance, and there is no statute specifically pre-empting the area and establishing a time frame for appeal, any appeal, whether through extraordinary writ or otherwise, shall be brought within twenty one (21) days of the decision. (Ord. 4587, 3-18-1996; Amd. Ord. 4460, 3-17-1997)

H. APPEALS OF SHORELINE PERMIT DECISIONS TO SHORELINES HEARING BOARD:

1. Standing for Appeals to Shorelines Hearings Board: Any person aggrieved by the granting or denying of a substantial development permit, a conditional use permit and/or a variance on shorelines of the City, or by the rescinding of a permit pursuant to the provisions of the Shoreline Master Program, may seek review from the State of Washington Shorelines Hearing Board.

2. Place and Time for Filing Appeals: Appeals of decisions by the Land Use Hearing Examiner must be made directly to the Shorelines Hearings Board. Appeals are made by filing a request for the same within twenty one (21) days of receipt of the final order and by concurrently filing copies of such request with the Department of Ecology and the Attorney General’s office as provided in section 18(1) of the Shorelines Management Act of 1971. (Amd. Ord. 4999, 1-13-2003)

3. City Requires Copy of Appeal Notice: A copy of any such appeal notice shall likewise be filed with the Planning/Building/Public Works Department and the City Clerk of the City of Renton.

4. Limited Utility Extensions and Protective Bulkheads – Appeals: Appeals of substantial development permits, for a limited utility extension as defined in RCW 90.58.140 (11) or for the construction of a bulkhead or other measures to protect a single family residence and its appurtenant structures from shoreline erosion, shall be finally determined by the legislative authority within thirty (30) days.

I. GROWTH MANAGEMENT HEARINGS BOARD:

1. Standing for Appeals to GMHB:

a. Those who may file an appeal are:

i. The State of Washington or county or city that plans under GMA;

ii. A person who has participated orally or in writing before the City regarding the matter on which a review is being requested;

iii. A person who is certified by the Governor within sixty (60) days of filing the request with the Board; or

iv. A person who qualifies pursuant to RCW 34.05.530 as aggrieved or adversely affected by the City’s action on an item in subsection I2 of this Section.

b. Participatory Standing: A person who files an appeal under subsection I1a(iv) of this Section must establish participatory standing by showing that his or her participation before the City was reasonably related to the person’s issue as presented to the Board.

c. Standing When a State Environmental Policy Act (SEPA) Appeal Is Made to the Board: To establish SEPA standing to appeal to the Board, the petitioner’s endangered interest must be arguably within the zone of interests protected by SEPA. Also, the petitioner must allege an injury in fact; that is, the petitioner must present sufficient evidentiary facts to show that the challenged SEPA determination will cause him or her specific and perceptible harm. The petitioner who alleges a threatened injury rather than an existing injury must also show that the injury will be ‘immediate, concrete, and specific’; a conjectural or hypothetical injury will not confer standing.

2. Matters Which May Be Appealed:

a. That the City planning under chapter 36.70A RCW is not in compliance with the requirements of that chapter, chapter 90.58 RCW as it relates to the adoption of shoreline’s master programs or amendments thereto, or chapter 43.21C RCW as it relates to plans, development regulations, or amendments, adopted under RCW 36.70A.040 or chapter 90.58 RCW; or

b. That the twenty (20) year Growth Management population projections applicable to the City of Renton or its potential annexation area as adopted by the Office of Financial Management pursuant to RCW 43.62.035 should be adjusted.

3. Time for Appeal: All petitions under this Section must be filed within sixty (60) days after publication of the appealed Comprehensive Plan, development regulation or permanent amendment thereto by the legislative body of the City. The date of publication by the City shall be the date it publishes the ordinance, or summary of the ordinance, adopting the Comprehensive Plan, development regulations or amendment thereto, as is required to be published.

4. Contents of Petition for Review: Each petition for review to the Growth Management Hearings Board shall be initiated by the filing of a petition that includes a detailed statement of issues presented for resolution by the Board, and citation to the law that the appellant believes has been violated. (Ord. 5154, 9-26-2005)

J.. APPEALS OF ADMINISTRATIVE DECISIONS TO THE DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT:

Any decisions made in the administrative process related to the Department of Community and Economic Development may be appealed to the Administrator within fifteen (15) days and filed, in writing, with the Department of Community and Economic Development. The Administrator shall give substantial weight to any discretionary decision of the City rendered pursuant to this Chapter. (Ord. 5450, 3-2-2009; Ord. 5676, 12-3-2012)