Chapter 18.20
LAND USE REVIEW PROCEDURES

Sections

18.20.010    Title.

18.20.020    Application.

18.20.030    Purpose.

18.20.040    Authority.

18.20.050    Concurrent review.

18.20.060    Exempt actions.

18.20.070    Land use classifications.

18.20.080    Project review.

18.20.090    Application forms, timelines and fees.

18.20.100    Pre-application meetings.

18.20.110    Acceptance for vesting.

18.20.120    Notice of complete application.

18.20.130    Public notice of proposed land use action.

18.20.140    Staff reports.

18.20.150    Review process for Type I land use action.

18.20.160    Appeal from administrative decisions – Time for filing – Substantial weight requirement – Standard of review – Failure to exhaust administrative remedies.

18.20.170    Review process for Type II land use action.

18.20.180    Review process for Type III land use action.

18.20.190    Review process for Type IV land use action.

18.20.200    Review process for Type V land use action.

18.20.210    Review process for Type VI land use action.

18.20.220    Written report or decision.

18.20.230    Procedures for open record public hearings.

18.20.240    Procedures for closed record appeal hearings.

18.20.250    Reconsideration.

18.20.270    Final decision.

18.20.280    City Council action on appeal from Hearing Examiner – Procedure – Burden of proof – Criteria to affirm, modify, reverse, or remand.

18.20.290    Appeal from decision of the City Council.

18.20.300    Appeal fees.

18.20.310    Establishment of rules for conduct of hearings.

18.20.320    Limitations on refiling of applications.

18.20.330    Records.

18.20.350    Hearings may be continued without public notice.

18.20.360    Withdrawal of application or petition – Effect – Refund of fees.

18.20.010 Title.

This chapter shall be entitled “Land Use Review Procedures.” [Ord. 1591 § 51, 2014.]

18.20.020 Application.

This chapter shall apply to the processing and appeal of all land use actions as defined by RCW 36.70B.030 unless specifically excluded herein. [Ord. 1591 § 52, 2014.]

18.20.030 Purpose.

The purpose of this chapter is to establish standard procedures for land use and related development decisions made by the City. The procedures are designed to promote timely and informed public participation, eliminate redundancy in the application, land use review, and appeal processes, minimize delay and expense, and result in land use actions that further the City goals, policies, and strategies as set forth in the City of Des Moines Comprehensive Plan. As required by RCW 36.70B.060, these procedures provide for an integrated and consolidated land use review process. The procedures integrate the environmental review process specified in Title 16 DMMC, Environment, with the procedures for land use actions specified in Title 14 DMMC, Buildings and Construction, Title 17 DMMC, Subdivisions, and this Title, and provide for the consolidation of appeal processes for land use actions. [Ord. 1591 § 53, 2014.]

18.20.040 Authority.

This chapter is adopted pursuant to the authority set forth in DMMC 18.01.040. [Ord. 1591 § 54, 2014.]

18.20.050 Concurrent review.

Except when a land use action is categorically exempt from SEPA, environmental review shall be conducted concurrently with review of other proposed land use actions requested by an applicant.

When a proposed development requires more than one land use action, the applicant may request concurrent review of all proposed land use actions. [Ord. 1591 § 55, 2014.]

18.20.060 Exempt actions.

(1) As authorized by RCW 36.70B.140(1), the following land use actions are not subject to the provisions of RCW 36.70B.070, 36.70B.080, 36.70B.090, 36.70B.110, 36.70B.120, and 36.70B.130 because the City Council has determined that these projects present special circumstances that warrant a review process different from the process specified by this chapter:

(a) Business Park and Institutional Campus (I-C) master plans (DMMC 18.105.050);

(b) Street vacations and other actions relating to use of public areas or facilities (Title 12 DMMC);

(c) Type VI land use actions (DMMC 18.20.210); and

(d) Abatement of nonconforming uses (DMMC 18.15.110).

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

(a) Lot line adjustments (chapter 17.25 DMMC).

(b) Construction permits required under Title 14 DMMC that are categorically exempt from environmental review under chapter 16.05 DMMC, SEPA, or for which environmental review has been completed in conjunction with other project permits. [Ord. 1655 § 5, 2016: Ord. 1591 § 56, 2014.]

18.20.070 Land use classifications.

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

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

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

(3) Type III. Quasi-judicial and other decisions by Hearing Examiner made after legally required opportunity for public comment.

(4) Type IV. Quasi-judicial and other nonlegislative decisions by City Council made after legally required opportunity for public comment.

(5) Type V. Quasi-judicial and other nonlegislative decisions by City Council made without legal requirement for public comment.

(6) Type VI. Legislative decision by City Council made after legally required opportunity for public comment. [Ord. 1591 § 57, 2014.]

18.20.080 Project review.

(1) Specific types of project approval are categorized as is set forth in Table 18.20.080A, Project Review Chart, below.

18.20.080A Project Review Chart 

 

Decision Maker

Applicable Code Section

Type I – Administrative land use decisions made without legal requirement for public comment

Planning, Building and Public Works Director

DMMC 18.20.150 and 18.20.160

Accessory dwelling unit (ADU) development permit

Planning, Building and Public Works Director

DMMC 18.55.140

Building height bonus

City Manager

DMMC 18.115.060(2)

Comprehensive signage design plan permit

Planning, Building and Public Works Director

DMMC 18.200.120 through 18.200.140

Lot line adjustment (exempt DMMC 18.20.060(2))

Planning, Building and Public Works Director

Chapter 17.25 DMMC

Sign permit

Planning, Building and Public Works Director

DMMC 18.200.060 and 18.200.080

Special use sign permit

Planning, Building and Public Works Director

DMMC 18.200.110

Construction permits required under Title 14 DMMC (Buildings and Construction) categorically exempt from SEPA (exempt DMMC 18.20.060(2))

Building Official

Title 14 DMMC

Design review decisions

Planning, Building and Public Works Director

DMMC 18.235.110 and 18.235.120

Determination that action is categorically exempt

SEPA Official

DMMC 16.05.110

Reasonable use exceptions or determinations in environmentally critical areas

Planning, Building and Public Works Director

Chapter 16.10 DMMC and DMMC 16.10.400

Interpretation of Title 12 DMMC, Streets, Sidewalks, and Public Places, Title 14 DMMC, Buildings and Construction, Title 16 DMMC, Environment, Title 17 DMMC, Subdivisions, and this Title

Planning, Building and Public Works Director or Building Official as applicable

Chapter 12.02 DMMC

Chapter 14.02 DMMC

Chapter 16.02 DMMC

Chapter 17.02 DMMC

Chapter 18.50 DMMC

Off-street parking permit

Planning, Building and Public Works Director

DMMC 18.210.060

Reduction of the minimum retail trade or personal business services requirements for mixed use developments

Planning, Building and Public Works Director

DMMC 18.115.050(9)(b)

Waiver of zoning requirements

Planning, Building and Public Works Director

DMMC 18.35.050

Street vacations and other actions relating to use of public areas or facilities (exempt DMMC 18.20.060(1))

Planning, Building and Public Works Director

Title 12 DMMC

Noise mitigation plan

Planning, Building and Public Works Director

DMMC 18.185.060

Landscaping site plans

Planning, Building and Public Works Director

DMMC 18.195.020(4)

Modification of same

Planning, Building and Public Works Director

DMMC 18.195.420

Temporary homeless encampments

Planning, Building and Public Works Director

DMMC 18.170.080

Type II – Administrative land use decisions made after legally required opportunity for public comment

Planning, Building and Public Works Director

DMMC 18.20.170

Applications for small domestic animals, large domestic animals and bee review

City Manager or City Manager’s Designee

Chapter 18.150 DMMC

Short subdivisions, preliminary approval

Planning, Building and Public Works Director

DMMC 17.05.060 through 17.05.090 and 17.05.140 through 17.05.210

Modified short subdivisions

Planning, Building and Public Works Director

DMMC 17.05.060 through 17.05.090 and 17.05.140 through 17.05.210

Alteration or vacation of binding site plan with no more than four lots

Planning, Building and Public Works Director

Chapter 17.20 DMMC

Alteration or vacation of short subdivision without public dedication

Planning, Building and Public Works Director

DMMC 17.20.050(2) and chapter 17.05 DMMC

Binding site plan with no more than four lots

Planning, Building and Public Works Director

DMMC 17.20.050(2) and chapter 17.30 DMMC

Determination of the adequacy of a final environmental impact statement

SEPA Official

DMMC 16.05.150 through 16.05.170 and 16.05.300 through 16.05.320

Determination of nonsignificance (DNS) and mitigated DNS

SEPA Official

DMMC 16.05.140 and 16.05.300 through 16.05.320

Determination of significance (DS) (appeal by LUPA action only)

Planning, Building and Public Works Director

DMMC 16.05.320(5)(d)

Planning, Building and Public Works Director approval, conditional approval, or denial of a project based upon chapter 16.05 DMMC (SEPA rules)

Planning, Building and Public Works Director

DMMC 16.05.300 through 16.05.320

Administrative decision made pursuant to chapter 16.15 DMMC, Flood Hazard Areas

City Manager or the City Manager’s designee

DMMC 16.15.170

Townhouse development with no more than four lots

Planning, Building and Public Works Director

DMMC 18.60.050(2) and 17.05.150

Shoreline substantial development permit

Planning, Building and Public Works Director

DMMC 16.20.010

Shoreline substantial development permit revisions

Planning, Building and Public Works Director

DMMC 16.20.010

Exemptions from shoreline substantial development permit

Planning, Building and Public Works Director

DMMC 16.20.010

Environmentally critical area development exception

Hearing Examiner

DMMC 16.10.300

Type III – Quasi-judicial and other decisions by the Hearing Examiner made after legally required opportunity for public comment

Hearing Examiner

DMMC 18.20.180

Appeal of an administrative/land use decision

Hearing Examiner

DMMC 18.20.160

Conditional use permit

Hearing Examiner

Chapter 18.140 DMMC

Hearing Examiner approval, conditional approval or denial of a project based upon chapter 16.05 DMMC, SEPA

Hearing Examiner

Chapter 16.05 DMMC

Modification of parking provisions by Hearing Examiner

Hearing Examiner

DMMC 18.210.070

Variance

Hearing Examiner

DMMC 18.35.070

Abatement of nonconforming uses (exempt DMMC 18.20.060(1))

Hearing Examiner

DMMC 18.15.110

Type IV – Quasi-judicial and other nonlegislative decisions by the City Council made after legally required opportunity for public comment

City Council

DMMC 18.20.190

Zoning map amendments (site specific)

City Council

Chapter 18.30 DMMC

Subdivisions – preliminary plat approval

City Council

DMMC 17.10.130 through 17.10.200

Modified subdivision – preliminary

City Council

DMMC 17.15.060 through 17.15.090

Alteration or vacation of a subdivision – preliminary

City Council

DMMC 17.20.050 and chapter 17.10 DMMC

Alteration or vacation of a short plat with public dedication – preliminary

City Council

DMMC 17.20.050 and chapter 17.05 DMMC

Alteration or vacation of a binding site plan with public dedication – preliminary

City Council

DMMC 17.20.050(1)(b) and chapter 17.10 DMMC

Alteration of vacation of binding site plan with more than four lots; not involving a public dedication – preliminary

City Council

DMMC 17.20.050(1) and chapter 17.30 DMMC

Approval of business park and institutional campus master plans (exempt DMMC 18.20.060(1))

City Council

DMMC 18.105.050

Binding site plan with more than nine lots, preliminary approval

City Council

DMMC 17.30.050(2) and 17.30.090

Planned unit development, preliminary approval

City Council

Chapter 18.230 DMMC

Townhouse development with more than nine lots

City Council

DMMC 18.50.050(3) and 17.10.130 through 17.10.170

City Council approval, conditional approval or denial of a project based upon chapter 16.05 DMMC

City Council

Chapter 16.05 DMMC

Shoreline substantial development permit with an environmental impact statement

City Council

DMMC 16.20.010

Shoreline conditional use

City Council

DMMC 16.20.010

Shoreline variance

City Council

DMMC 16.20.010

Unclassified use permit

City Council

DMMC 18.20.190

Type V – Quasi-judicial and other nonlegislative decisions by the City Council without requirement for public comment

City Council

DMMC 18.20.200

Final alteration or vacation of binding site plan with public dedication

City Council

DMMC 17.20.050 and 17.20.060

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

City Council

DMMC 17.20.050 and 17.20.060

Final alteration or vacation of short subdivision with public dedication

City Council

DMMC 17.20.050 and 17.20.060 and chapter 17.05 DMMC

Final alteration or vacation of subdivision

City Council

DMMC 17.20.050 and chapter 17.10 DMMC

Final binding site plan with more than four lots

City Council

DMMC 17.30.070

Final modified short subdivision

City Council

DMMC 17.15.090

Final modified subdivision

City Council

DMMC 17.15.090

Final planned unit development

City Council

Chapter 18.230 DMMC

Final townhouse development with more than four lots

City Council

Chapter 18.60 DMMC

Subdivision – final plat

City Council

DMMC 17.10.240 through 17.10.270

Type VI – Legislative decisions made by the City Council made after legally required opportunity for public comment (exempt pursuant to DMMC 18.20.060(1))

City Council

DMMC 18.20.210

Area-wide rezones

City Council

DMMC 18.30.100

Comprehensive Plan adoption or amendments

City Council

DMMC 18.25.050

Textual code amendment of Titles 12, 14, 16 and 17 DMMC, Subdivisions, and this Title

Planning, Building and Public Works Director schedules public meeting before the City Council

Chapter 17.45 DMMC and DMMC 18.30.100

[Ord. 1655 § 6, 2016; Ord. 1628 § 2, 2015; Ord. 1591 § 58, 2014.]

18.20.090 Application forms, timelines and fees.

(1) All applications for land use actions and other City approvals specified in Title 12 DMMC, Streets, Sidewalks and Public Places, Title 14 DMMC, Buildings and Construction, Title 16 DMMC, Environment, Title 17 DMMC, Subdivisions, and this Title, shall be submitted on the forms contained in Appendix A to this chapter and pursuant to the specific provisions of the DMMC identified above. All applications shall be authorized by the property owner.

(2) All applications shall be processed in such a manner that they may be heard, decided or extended by written agreement of the applicants by the appropriate body within the time periods set forth in the above-identified Titles from the date a completed application is filed, unless the delay is a result of the failure of the applicant to provide information required and necessary for review of the application.

(3) Fees for applications for land use actions should be as set forth in the Fee Resolution approved by the City Council. [Ord. 1591 § 59, 2014.]

18.20.100 Pre-application meetings.

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

(2) Formal Pre-Application Meetings. Unless waived by the Planning, Building and Public Works Director, potential applicants or their designees are required to attend a formal pre-application meeting for all Type III, Type IV, and Type VI land use actions. The purpose of the meeting is to discuss the nature of the proposed development, application and approval requirements, fees, review process and schedule, and applicable policies and regulations. As appropriate, the Planning, Building and Public Works Director shall invite representatives of affected agencies, such as other City departments and special purpose districts, to attend any formal pre-application meeting. This meeting requirement should be deemed waived in the event the Planning, Building and Public Works Director or the Planning, Building and Public Works Director’s designee is unavailable to meet within 10 days of a request for such meeting. [Ord. 1591 § 60, 2014.]

18.20.110 Acceptance for vesting.

(1) An application for a proposed land use action shall not serve to vest any development rights until the Planning, Building and Public Works Director determines the application is complete as specified by this code.

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

(3) Applicant-generated requests for revision(s), i.e., those requests which are not made in response to staff review or public appeal, that result in a substantial change to the proposed land use action, as determined by the Planning, Building and Public Works Director, shall be treated as a new application as of the date of receipt of the revision by the Planning, Building and Public Works Department and shall require a new application fee. [Ord. 1591 § 61, 2014.]

18.20.120 Notice of complete application.

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

(a) A completed application form.

(b) All applicable fees.

(c) Written authorization of the property owner.

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

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

(2) Notice of complete application shall be provided as provided in RCW 36.70B.070.

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

(4) More than one request for additional information may be required by the Planning, Building and Public Works Director prior to the issuance of a notice of complete application. The Planning, Building and Public Works Director shall attempt to minimize the number of requests for additional information. The applicant shall attempt to provide the requested information in a complete and prompt manner. [Ord. 1591 § 62, 2014.]

18.20.130 Public notice of proposed land use action.

(1) Upon a determination that a complete application for a land use action has been filed, the Planning, Building and Public Works Director shall issue a notice of proposed land use action.

(2) The notice of proposed land use action shall be provided as specified below and as set forth in DMMC 16.05.190 through 16.05.260.

(3) Notice of Hearing Required.

(a) All applications to be heard by the Hearing Examiner, except appeals of an administrative decision, require public notice. Unless the ordinance governing the application provides otherwise, written notice is mailed to all persons entitled by this chapter to receive notice and notice is given by at least one publication in the official newspaper of the City not less than 15 days prior to the scheduled hearing date. The form of the notice and the manner in which it is given shall conform with the requirements of this chapter. The Hearing Examiner may require or provide such additional notice as deemed necessary to serve the public interest, including publication in a newspaper of general circulation. The Planning, Building and Public Works Department shall be responsible for ensuring that appropriate public notice is given.

(b) Public information signs shall be installed, as provided in chapter 16.05 DMMC, SEPA.

(c) On appeals from administrative decisions, notice shall be required only to the administrator whose decision is being appealed and the appellant.

(4) Notice of Hearing – Content. Each public notice required by this chapter shall contain at least the following information:

(a) The date, time, and place of the hearing, as designated by the Hearing Examiner, except legal holidays, specified in DMMC 1.02.140;

(b) A legal description and common location description of the property;

(c) A description of the proposed action;

(d) A statement that any person may appear or be heard and that written comments will be accepted and made part of the record;

(e) A statement that the hearing will be held pursuant to the rules of procedure of the Hearing Examiner; and

(f) The name, address, and office telephone number of the person within the Planning, Building and Public Works Department or other City department from whom additional information may be obtained.

(5) Persons Entitled to Notice.

(a) The Planning, Building and Public Works Department shall cause written public notice to be mailed to all owners of record of property located within 300 feet, exclusive of public rights-of-way, of the property that is the subject of the application, including any property that is contiguous and under the same or common ownership and control.

(b) The Planning, Building and Public Works Department shall cause written public notice to be mailed to:

(i) Any person who has made a written request to receive such notice;

(ii) Any jurisdiction or government agency that might have an interest in or be affected by a proposed action, as determined by the Planning, Building and Public Works Department.

(6) Notice of Hearing – When Given. Notices of hearings required under this chapter shall be mailed or posted at least 15 days prior to the scheduled hearing date.

(7) Unless an open record public hearing is required, public notice of a land use action is not required for a Type I land use action or an action categorically exempt under chapter 16.05 DMMC.

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

(9) Written comment in response to a notice of proposed land use action shall be provided to the Planning, Building and Public Works Department during the 15-day public comment period.

(10) If allowed by chapter 197-11 WAC, notice of proposed land use action may be combined with notice of proposed DNS for the purpose of consolidating comment periods. [Ord. 1591 § 63, 2014.]

18.20.140 Staff reports.

(1) The Planning, Building and Public Works Department shall coordinate and assemble the comments and remarks of other City departments and make a written report on all applications.

(2) The report of the Planning, Building and Public Works Department generally contains a description of the proposed use, a summary of applicable zoning and plan requirements and policies, other applicable requirements and policies, recommended findings and conclusions relating to the proposed use, a recommendation, and proposed conditions if the recommendation is for approval.

(3) Where a hearing is required, at least seven days prior to the scheduled hearing, the department shall file its report with the hearing body and cause a copy to be mailed to the applicant or the applicant’s representative. A copy of the report will be made available to any other person if the request for the copy is made at least 24 hours prior to the scheduled hearing.

(4) If a report is not available as provided in this section, the hearing body may reschedule or continue the hearing upon his or her own motion or upon the motion of a party, or the hearing body may decide the matter without the report.

(5) Staff reports shall be consistent with RCW 36.70B.060(5). [Ord. 1591 § 64, 2014.]

18.20.150 Review process for Type I land use action.

(1) The Planning, Building and Public Works Director may approve, approve with conditions, or deny a Type I land use action without public notice.

(2) The decision of the Planning, Building and Public Works Director shall be effective on the date issued.

(3) The Planning, Building and Public Works Director’s decision regarding a Type I land use action is appealable to the Hearing Examiner for an open record public hearing as provided in DMMC 18.20.230. [Ord. 1591 § 65, 2014.]

18.20.160 Appeal from administrative decisions – Time for filing – Substantial weight requirement – Standard of review – Failure to exhaust administrative remedies.

Any person or persons aggrieved by any administrative decision, made under a provision of this code which expressly provides that such administrative decision is subject to review by the Hearing Examiner, may seek review of such decision by the Hearing Examiner by filing with the City Clerk a written notice of appeal of an administrative decision within 10 days of the decision that is being challenged. The City Clerk may reject or dismiss any appeal sought to be filed by a person not given the right to appeal under this code, or any incomplete appeal. An appeal will be considered incomplete if it fails to satisfy the requirements set forth above or if it does not provide at least the following:

(1) Applicable filing fee, a schedule of which is available by contacting the City Clerk;

(2) The appellant’s name, address, telephone number and fax line, and other information which would facilitate prompt communications with the appellant;

(3) A copy of the administrative decision that is the subject of the appeal;

(4) A detailed statement identifying specifically the error of fact, law or procedure made by the administrative decision maker, and the effect(s) of the alleged error(s) on the decision that is the subject of the appeal; and

(5) A statement of the redress sought by the appellant.

The administrative decision appealed shall be given substantial weight by the Hearing Examiner. On any such appeal, the standard of review shall be whether the administrative decision was clearly erroneous based on a review of all evidence, or the administrative decision was arbitrary or capricious. Failure of a party to request review by the Hearing Examiner of an administrative decision shall be a bar to any further judicial review. [Ord. 1591 § 66, 2014.]

18.20.170 Review process for Type II land use action.

A notice of application is required for a Type II action.

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

(2) The Planning, Building and Public Works Director’s decision regarding a Type II land use action shall be effective on the date issued.

(3) Except as provided by subsections (4) and (5) of this section, the Planning, Building and Public Works Director’s decision regarding a Type II land use action is appealable to the Hearing Examiner for an open record public hearing as provided in DMMC 18.20.230.

(4) A determination of significance (DS) is not appealable to the Hearing Examiner or the City Council and may be appealed by filing a land use petition with the Superior Court of Washington for King County as provided by chapter 36.70C RCW.

(5) Within the Pacific Ridge area, a SEPA determination is not appealable to the Hearing Examiner or the City Council and may be appealed by filing a land use petition with the Superior Court of Washington for King County as provided by chapter 36.70C RCW. [Ord. 1591 § 67, 2014.]

18.20.180 Review process for Type III land use action.

A notice of application is required for a Type III action.

(1) Upon conclusion of the 15-day comment period and any applicable SEPA appeal period, the Hearing Examiner in an open record public quasi-judicial hearing may approve, approve with conditions, or deny a Type III land use action as specified by chapter 18.240 DMMC, Hearing Examiner.

(2) The Hearing Examiner’s decision regarding a Type III land use action, other than an action for abatement of a public nuisance pursuant to DMMC 18.15.110, is appealable to the Superior Court of Washington for King County as specified by chapter 18.240 DMMC (appeals from decision of Hearing Examiner). [Ord. 1591 § 68, 2014.]

18.20.190 Review process for Type IV land use action.

(1) Upon conclusion of the 15-day comment period and any applicable SEPA appeal period, the City Council may approve, approve with conditions, or deny a Type IV land use action upon compliance with the procedural requirements of chapter 18.240 DMMC, Hearing Examiner.

(2) The City Council’s decision regarding a Type IV land use action is appealable to the Superior Court of Washington for King County as specified by DMMC 18.20.280 (appeal from decision of the City Council). [Ord. 1591 § 69, 2014.]

18.20.200 Review process for Type V land use action.

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

(2) The decision of the City Council shall be effective on the date final action is taken during a public meeting, if no other effective date is identified in the City Council action, or as otherwise provided by law.

(3) The City Council’s decision regarding a Type V land use action is appealable to the Superior Court of Washington for King County as specified by DMMC 18.20.280 (appeal from decision of the City Council). [Ord. 1591 § 70, 2014.]

18.20.210 Review process for Type VI land use action.

(1) For textual code amendments, the Planning, Building and Public Works Director may schedule a public hearing before the City Council as provided in DMMC 18.30.100.

(2) Upon conclusion of the 15-day comment period, the City Council may approve, approve with conditions, or deny a Type VI land use action upon compliance with the procedural requirements of chapter 18.30 DMMC, Amendments to the Zoning Code, Map and Planned Unit Developments.

(3) Except for matters subject to review by the Central Puget Sound Growth Management Hearings Board as provided by RCW 36.70A.280 as presently constituted or as may be subsequently amended, the City Council’s decision regarding a Type VI land use action is appealable to the Superior Court of Washington for King County as specified by DMMC 18.20.280 (appeal from decision of the City Council). [Ord. 1591 § 71, 2014.]

18.20.220 Written report or decision.

A written report of the decisions identified above shall be provided as required by RCW 36.70B.060 and 36.70B.130. [Ord. 1591 § 72, 2014.]

18.20.230 Procedures for open record public hearings.

(1) Open record public hearings shall be conducted as required by chapter 4.12 DMMC, City Council – Rules of Procedure, and chapter 18.240 DMMC, Hearing Examiner, and other applicable law.

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

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

(4) Upon the closing of the open record public hearing by the presiding officer of the City Council hearing, no additional written information or oral testimony from the public or other agencies will be accepted or considered. [Ord. 1591 § 73, 2014.]

18.20.240 Procedures for closed record appeal hearings.

(1) Closed record appeal hearings shall be conducted in accordance with chapter 4.12 DMMC, City Council – Rules of Procedure, and chapter 18.240 DMMC, Hearing Examiner, and other applicable law.

(2) Closed record public hearing shall be conditional as required by RCW 36.70B.020, 36.70B.060, 36.70B.110, 36.70B.120 and 43.21C.070 and all other applicable laws.

(3) Except as specified by procedures for reconsideration or remand, no new evidence or testimony shall be given or received during a closed record appeal hearing. However, the parties to the appeal may submit written statements limited to the issue(s) appealed. [Ord. 1591 § 74, 2014.]

18.20.250 Reconsideration.

A party to a public hearing or closed record appeal may seek reconsideration of a final decision. Requests for reconsideration shall be submitted and considered as specified by DMMC 18.240.240 (Hearing Examiner decision) and 18.240.250 (City Council decision). [Ord. 1591 § 75, 2014.]

18.20.270 Final decision.

When written notice of a final decision is required, such notice shall be provided as specified by RCW 36.70B.060, 36.70B.090, and 36.70B.130. [Ord. 1591 § 76, 2014.]

18.20.280 City Council action on appeal from Hearing Examiner – Procedure – Burden of proof – Criteria to affirm, modify, reverse, or remand.

(1) The City Council, in a closed record hearing, may affirm, reverse, modify, or remand the decision of the Hearing Examiner. The City Council may adopt all or portions of the Hearing Examiner’s findings and conclusions. No new testimony shall be taken or new evidence accepted by the City Council, except as provided for de novo consideration of a matter as authorized by subsection (3) of this section. The decision of the City Council shall be in writing in the City Council minutes and shall contain modified or amended findings and conclusions wherever such findings or conclusions are different from those of the appealed decision. Each material finding shall be supported by evidence in the record. The burden of proof with regard to modification or reversal of the decision of the Examiner shall rest with the appellant. The decision of the Hearing Examiner is to be given substantial weight by the City Council.

(2) The procedure on appeal to the City Council shall be as follows: The presiding officer shall at the onset establish time limitations for oral argument by the appellant and opponent to the appeal; provided, that the appellant may reserve a portion of its time for rebuttal; and provided further, that such time limitations shall not be less than 10 minutes per side. Such oral argument shall be confined to the record and to any alleged errors therein or to any allegation of irregularities in procedure before the Hearing Examiner. If the City Council finds that:

(a) There has been substantial error; or

(b) The proceedings were materially affected by irregularities in procedure; or

(c) The Hearing Examiner’s decision was unsupported by material and substantial evidence in view of the entire record as submitted; or

(d) The Hearing Examiner’s decision is in conflict with the City’s Comprehensive Plan; or

(e) Insufficient evidence was presented as to the impact of the land use action on the surrounding area; or

(f) The appellant is seeking to enter information that was not previously available for reasons beyond the control of that party and that such information is more likely than not to affect the outcome;

it may remand the matter for reconsideration before the Hearing Examiner, or reject or modify the Hearing Examiner’s decision; provided, any rejection or modification of the Hearing Examiner’s decision shall be in the form of written findings and conclusions by Council which are supported by evidence in the record.

(3) For a Hearing Examiner decision that is not related to a proposed land use action, the City Council may reject the Hearing Examiner’s decision and set a public hearing for a date certain at which time the City Council will consider the application de novo, or for any reason listed in subsection (2)(a), (b), (c), or (f) of this section it may choose to modify the Hearing Examiner’s decision; provided, any such modification shall be in the form of written findings and conclusions by Council which are supported by evidence in the record.

(4) Affirmance. If the City Council finds neither a procedural nor a factual basis for the appeal and concludes that there has been no substantial error in the Hearing Examiner’s decision, the City Council may adopt the findings of the Hearing Examiner and affirm the decision of the Hearing Examiner.

(5) Reversal or Remand Modification.

(a) If the Council remands the decision to the Hearing Examiner, it sets forth in the minutes its reasons and the issues to be considered by the Hearing Examiner on remand.

(b) Within five days of the date of the Council’s written remand order, the Hearing Examiner mails notice of the Council’s decision, the date, time, and place of the remand hearing, and the issues to be considered to all parties of record. The Hearing Examiner holds a public hearing, limited to the issues set forth in the Council’s order, within 30 days of the date of the remand order.

(c) If the City Council finds a procedural or a factual basis for the appeal and concludes that there has been a substantial error in the Hearing Examiner’s decision, the City Council may adopt new findings and reverse or modify the decision of the Hearing Examiner.

(6) The participation of the City Attorney or any member of the Legal Department of the City in such appeal shall be limited to that of legal advisor to the City Council. [Ord. 1591 § 77, 2014.]

18.20.290 Appeal from decision of the City Council.

If the decision of the City Council requires adoption of an ordinance, the decision of the City Council shall be considered final on the effective date of the ordinance. Otherwise, the decision of the City Council shall be considered final as of the date upon which the City Council casts its vote to affirm, modify, or reverse the Hearing Examiner. The action of the City Council, approving, modifying, or reversing a decision of the examiner, shall be final and conclusive, unless an aggrieved party, who was a party of record in the hearing before the Examiner and City Council, files a land use petition in the Superior Court of Washington for King County as specified by chapter 36.70C RCW. (However, appeals from City Council decisions on shoreline substantial development permits shall be taken to the Shoreline Hearings Board pursuant to the provisions of chapter 90.58 RCW.) For purposes of the land use petition proceedings, the petitioner shall be responsible for transcribing the record and bear the costs of the transcription. [Ord. 1591 § 78, 2014.]

18.20.300 Appeal fees.

The fee for appeals made pursuant to this chapter, excluding DMMC 18.20.280, shall be set by administrative order of the City Manager or the City Manager’s designee and shall be payable in advance, provided: (1) the City Manager or the City Manager’s designee shall waive such fees upon a finding of indigence according to standards adopted by the Des Moines Municipal Court, and (2) the decision-making body shall have discretion and jurisdiction to direct that any fees paid shall be refunded to a prevailing appellant upon a finding of just cause. [Ord. 1591 § 79, 2014.]

18.20.310 Establishment of rules for conduct of hearings.

The Hearing Examiner shall conduct public hearings in accordance with the provisions of chapter 18.240 DMMC, Hearing Examiner. [Ord. 1591 § 80, 2014.]

18.20.320 Limitations on refiling of applications.

Upon final action in denying an application or petition for an action permitted by the zoning code or upon the verbal or written withdrawal of an application or petition following convening of a public hearing, the Planning, Building and Public Works Department shall not accept further filing of an application for substantially the same property involving substantially the same use within six months from the date of final action or withdrawal. [Ord. 1591 § 81, 2014.]

18.20.330 Records.

The City shall cause to be kept a brief minute record of the proceeding. Such record, applications filed pursuant to this Title, the written order or motion showing the action and the reasons therefor and the evidence of notice, and other material shall become a part of the records of the City to which application is made. Provisions for custody of such additional records or minutes may be adopted by the City. [Ord. 1591 § 82, 2014.]

18.20.350 Hearings may be continued without public notice.

If, for any reason, testimony on any matter set for public hearing, or being heard, cannot be completed on the date set for such hearing, the person presiding at such public hearing or meeting may, before adjournment or recess of such matters under consideration, publicly announce the time and place to, and at which, the hearing or meeting will be continued and no further notice is required. [Ord. 1591 § 83, 2014.]

18.20.360 Withdrawal of application or petition – Effect – Refund of fees.

An application or petition for an action permitted by the zoning code that is withdrawn verbally or in writing is subject to the following provisions:

(1) If a verbal or written withdrawal request is made prior to the convening of a public hearing, the withdrawal is permitted as a matter of right and the limitation on refiling of the application or petition as provided in DMMC 18.20.320 is inapplicable.

(2) If a verbal or written withdrawal request is made after the convening of a public hearing, the applicant is prohibited from further filing of an application for substantially the same property involving substantially the same use for a period of six months from the date of withdrawal.

(3) The Planning, Building and Public Works Director may authorize a full or partial refund of application or petition fees. The amount of the refund is reduced in proportion to the costs incurred by the City up to and including the date a refund claim is made.

(4) A full refund of fees is granted only when the withdrawal is caused by an error or omission on the part of the City.

(5) A person claiming a refund must submit a statement in writing to the Planning, Building and Public Works Director giving the basis for the refund claim. Such statement shall be made within 10 days of the acceptance of the withdrawal. [Ord. 1591 § 84, 2014.]