Chapter 15.230
GENERAL PROVISIONS FOR PERMIT APPLICATION HEARINGS AND APPEALS

Sections:

15.230.010    Limitations on the number of hearings.

15.230.020    Public notice of public hearing.

15.230.030    Effective date of decision.

15.230.040    General description of appeals.

15.230.050    Grounds for administrative appeal.

15.230.060    Standing to initiate an administrative appeal.

15.230.070    Appeals.

15.230.080    Open record hearing or appeal hearing proceedings.

15.230.090    Closed record hearing or appeal hearing proceedings.

15.230.100    Judicial review.

15.230.110    Conflicts.

15.230.010 Limitations on the number of hearings.

A.    No more than one open record hearing shall be heard on any project permit application. The appeal hearing on a SEPA threshold determination of nonsignificance or a critical area determination pursuant to Division VI shall be consolidated with any open record hearing on the project permit.

B.    A public meeting may be held by a designated body prior to making a recommendation to a decision-maker. The purpose of such public meeting shall be to help inform the recommendation or decision but will not involve the acceptance of any evidence or formal testimony. Materials submitted and utilized in informing any recommendation shall accompany the recommendation to the decision-maker. Procedures for public meetings are governed by Chapter 42.30 RCW. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.020 Public notice of public hearing.

Notice of the time and place of an open record hearing shall be made available to the public by the department no less than 14 calendar days prior to the hearing, through use of these methods:

A.    Mail. Mailing to owners of real property located within 300 feet of the subject property;

B.    Newspaper. The department shall publish a notice of the open record public hearing in the newspaper of general circulation for the general area in which the proposal is located; and

C.    Post Site. Posting the property (for site-specific proposals). (See ECC 15.220.040.) [Ord. 4807 § 24, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.030 Effective date of decision.

Unless an administrative appeal is timely filed, a project permit decision of the city shall be effective on the date the written decision is issued. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.040 General description of appeals.

A.    Type I project permits are appealable only to superior court.

B.    Type II project permits are appealable to the hearing examiner (unless otherwise noted in Table 15.210.050(B)) who conducts an open record appeal hearing.

C.    Type III project permit decisions are appealable to city council which conducts a closed record appeal hearing, except Type III decisions made by city council which are appealable to superior court.

D.    Appeals of city council decisions (Type IV and V permits), and appeals of an appeal authority’s decisions shall be made to the superior court or to the Growth Management Hearings Board, as applicable to the matter being appealed. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.050 Grounds for administrative appeal.

Any appeal to Type II and III project permit decisions shall be linked to the criteria of the underlying project permit decision. The grounds for filing an appeal shall be limited to the following:

A.    The designated decision-maker exceeded his or her jurisdiction or authority;

B.    The designated decision-maker failed to follow applicable procedures in reaching the decision;

C.    The designated decision-maker committed an error of law; or

D.    The findings, conclusions or decision prepared by the designated decision-maker are not supported by substantial evidence. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.060 Standing to initiate an administrative appeal.

A.    Limited to Parties of Record. Only parties of record may file an administrative appeal.

B.    Definition. The term “parties of record” for the purposes of this chapter, shall mean:

1.    The applicant;

2.    Any person who testified at the open record public hearing on the application;

3.    Any persons who submitted written comments concerning the application (excluding persons who have only signed petitions or mechanically produced form letters);

4.    The Ellensburg city council;

5.    Property owners within 300 feet of the property subject to the project permit; or

6.    Any person who can demonstrate that he/she is aggrieved by the decision in a manner sufficient to establish standing to initiate an administrative appeal. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.070 Appeals.

Appeals of a project permit decision shall be governed by the following:

A.    Time to File. An administrative appeal shall be considered timely only if it is filed with the community development director within 14 calendar days after written notice of the decision is mailed and is accompanied by the appropriate appeal fee. Appeals shall be delivered to the community development department by mail, personal delivery or by fax before 5:00 p.m. on the last business day of the appeal period. Appeals received by mail after 5:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.

B.    Computation of Time. For the purposes of computing the time for filing an appeal, the day the decision is issued shall not be counted. If the last day of the appeal filing period is a Saturday, Sunday, or holiday designated by RCW 1.16.050 or by a city ordinance, then the appeal must be filed on the next business day.

C.    Acceptance of Appeal. The director shall accept appeals that meet the requirements of this section and shall schedule such appeals for consideration by the appeal body or city council as provided in ECC 15.230.040. The director shall reject any appeal that fails to meet the filing and submittal requirements of this section. The appeal fee shall be refunded in the event the director rejects an appeal, or in the event that the appellant files a written statement with the director at least 15 calendar days before the scheduled date for consideration of the appeal. In all other cases, the appeal fee shall be nonrefundable.

D.    Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee, and contain the following information:

1.    Appellant’s name, address and phone number;

2.    A statement describing appellant’s standing to appeal;

3.    Identification of the application or decision that is the subject of the appeal;

4.    Appellant’s statement of grounds for appeal and the facts upon which the appeal is based, with specific references to the facts in the record;

5.    The specific relief sought;

6.    A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature or the signature of the appellant’s agent, provided such agent’s authorization is in writing and accompanies the appeal.

E.    Effect. The timely filing of an appeal shall stay the decision-maker’s decision until such time as the appeal is concluded or withdrawn.

F.    Burden of Proof. The appellant shall bear the burden to demonstrate that at least one of the grounds for administrative appeal as set forth in ECC 15.230.050 has occurred.

G.    Standard of Review. The appeal body shall determine whether there is substantial evidence in the administrative record to support an affirmative finding that one of the grounds for administrative appeal raised by the appellant has been met. The appeal body may affirm, modify or reverse the decision of the hearing body.

H.    Decision. The appeal body shall issue a written decision on the appeal supported by written findings and conclusions. The director shall mail notice of the appeal body’s decision to the appellant(s), the applicant, and other parties of record. The notice shall consist of the appeal body’s decision identifying the case by number and appellant’s name. The notice shall also include a statement concerning any appeal rights for the appeal decision. Where applicable, the notice shall comply with the official notice provisions of RCW 34.21C.075. [Ord. 4807 § 25, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.080 Open record hearing or appeal hearing proceedings.

A.    Responsibility of Director for Hearing. The director shall:

1.    Schedule a predecision public hearing or an appeal public hearing as applicable. If the matter is a predecision public hearing, the open record hearing shall be heard within 60 calendar days from the issuance of the notice of application. If the matter is an appeal of a decision which provides for an open record appeal hearing, such appeal hearing shall be held and a decision made within 45 calendar days from the date the appeal is filed unless otherwise established by statute.

2.    Provide notice of public hearing as required per ECC 15.230.020.

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 a project permit that did 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.

4.    Once a decision has been issued, prepare the notice of decision, if required by the hearing body, and mail a copy of the notice of decision to those required to receive such decision.

B.    Conflict of Interest, Ethics, Open Public Meetings Act, Appearance of Fairness. The hearing body shall be subject to the code of ethics (RCW 35A.42.020), prohibitions on conflict of interest (RCW 35A.42.020 and Chapter 42.23 RCW), open public meetings (Chapter 42.30 RCW), and appearance of fairness (Chapter 42.36 RCW) as the same now exist or may hereafter be amended.

C.    Ex Parte Communication.

1.    No member of the hearing body may communicate, directly or indirectly, regarding any issue in a proceeding before the hearing body, other than to participate in communications necessary to procedural aspects of maintaining an orderly process, unless such member provides notice and opportunity for all parties to participate, except as provided in this subsection:

a.    The hearing body may receive advice from legal counsel;

b.    The hearing body may communicate with staff members on code or procedural matters; and

c.    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 (C)(2) of this section.

2.    If a member of the hearing body receives an ex parte communication in violation of this section, he or she shall place on the record:

a.    All written communications received;

b.    All written responses to the communication;

c.    A statement of the substance of all oral communications received and all oral responses made; and

d.    The identity of each person from whom the hearing body member received any ex parte communications.

3.    Any person in the hearing audience may object to the participation in the hearing of any hearing body member who has placed an ex parte communication on the record and the hearing body member may choose to recuse himself or herself from the hearing or may provide rebuttal to said objection and indicate on the record that he or she believes that they can continue on to hear the matter in a fair and unbiased manner.

D.    Disqualification.

1.    A member of the hearing body who is disqualified through recusal shall not be counted for purposes of forming a quorum. Any member who is disqualified by recusal may do so only by making full disclosure to the audience, abstaining from voting on the proposal, vacating the seat on the hearing body and physically leaving the hearing room.

2.    Except for Type V 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.

E.    Burden and Nature of Proof. Except for Type V actions, the burden of proof is on the proponent to demonstrate that the project permit application is supported by proof established on the record that it conforms to the applicable elements of the LDC and comprehensive plan and that any significant adverse environmental impacts have been adequately addressed.

F.    Order of Proceedings. 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:

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

1.    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;

2.    Any abstentions or disqualifications shall be determined;

3.    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;

4.    Information shall be received from the staff and then from proponents and then from 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; and

5.    When the presiding officer has closed the public hearing portion of the hearing, the hearing body shall openly discuss the issue and may not ask further questions of any person without reopening the public hearing, except that questions to staff of code or procedural clarification or legal question to the city attorney.

G.    Decision and Notice of Decision.

1.    Following the hearing procedure described in this section, the hearing body shall approve, conditionally approve, or deny the application. If the hearing is an appeal, the hearing body shall affirm, affirm with conditions, or reverse the decision that is on appeal.

2.    The hearing body’s written decision shall be issued within 10 working days after the hearing on the project permit application. The notice of decision shall be issued within 120 calendar days after the city notifies the applicant that the application is complete.

H.    Issuance of Notice of Final Decision. The notice of decision shall be issued pursuant to ECC 15.220.080. [Ord. 4807 § 26, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.090 Closed record hearing or appeal hearing proceedings.

A.    A closed record hearing or appeal hearing shall be heard and decided within 45 calendar days from the date the appeal is filed unless otherwise established by statute.

B.    The procedure for closed record hearing or appeal hearing shall be the same as set forth in ECC 15.230.080, Open record hearing or appeal hearing proceedings, except that:

1.    The closed record hearing shall be limited solely to the record established in the predecision open record hearing on which the decision was made and the hearing body shall be limited in its review to determining whether the decision is supported by the record. The appeal body may decide:

a.    To uphold the decision as being supported by the record; or

b.    Reverse the decision as not being supported by the record.

2.    Participation in the closed record hearing shall be limited to the city, including all staff, the applicant for the proposal subject to appeal, and those persons or entities which have timely filed complete written appeal statements and paid the appeal fee. No new testimony or evidence can be entered into the record although the hearing body can seek clarification of the record.

3.    Public noticing requirements for closed record hearings will be limited to the applicant and parties of record.

C.    The designated appeal body shall issue a decision on the appeal within 21 calendar days after the conclusion of the appeal hearing, unless the project permit applicant has agreed in writing to an extension of that time frame. [Ord. 4807 § 27, 2018; Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.100 Judicial review.

No person may seek judicial review of any decision of the city, unless that person first exhausts the administrative remedies provided by the city. [Ord. 4656 § 1 (Exh. O2), 2013.]

15.230.110 Conflicts.

In the event of any conflict between any provision of this chapter and any other city ordinance, the provisions of this chapter shall control. Specifically, but without limitation, this means that the provisions of this chapter shall control with reference to authority to make decisions and the time frame for making those decisions, including the requirements to file an appeal. [Ord. 4656 § 1 (Exh. O2), 2013.]