Chapter 19.70
PROCESS IV – HEARING EXAMINER1

Sections:

19.70.010    Administration.

19.70.045    Compliance with the State Environmental Policy Act.

19.70.050    Official file.

19.70.060    Notice.

19.70.090    Staff report.

19.70.100    Public hearing.

19.70.120    Burden of proof.

19.70.125    Scope of agency decision appeals.

19.70.150    Hearing examiner’s decision.

19.70.260    Judicial review.

19.70.010 Administration.

Various places in the Code indicate that certain developments, activities or uses are permitted only if approved using process IV. Certain appeals of agency decisions are also governed by process IV. This chapter describes process IV.

All development applications subject to this process and also subject to the requirements of Chapter 19.115 FWRC, Community Design Guidelines, shall first comply with process III as to those requirements, and then proceed with process IV as to any other required review. Any appeal of the director’s decision as to community design guidelines pursuant to this section shall be decided at the same time as and in conjunction with the process IV review. If the development, use or activity that requires approval through process II or III is part of a proposal that also requires approval through process IV, the entire proposal will be decided upon using process IV, if the director determines that will result in more efficient decision making.

Under process IV the hearing examiner will make the final decision following a public hearing.

(Ord. No. 14-760, § 1, 3-4-14; Ord. No. 09-594, § 76, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.05), 4-21-92; Ord. No. 90-43, § 2(150.05), 2-27-90. Code 2001 § 22-431.)

19.70.045 Compliance with the State Environmental Policy Act.

The State Environmental Policy Act applies to some of the decisions that will be made using this chapter. The director 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. Where a threshold determination under the State Environmental Policy Act is required, the responsible official shall issue his or her 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 IV approval.

(Ord. No. 09-594, § 82, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.20), 4-21-92; Ord. No. 90-43, § 2(150.20), 2-27-90. Formerly 22-437. Code 2001 § 22-434.5.)

19.70.050 Official file.

(1) Contents. The director shall compile an official file on the application containing the following:

(a) All application materials submitted by the applicant.

(b) The staff reports.

(c) All written comments received on the matter.

(d) The electronic recording of any public hearing on the matter.

(e) The decision of the hearing examiner.

(f) Any other information relevant to the matter, including any agency decision and notice of appeal.

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

(Ord. No. 14-760, § 2, 3-4-14; Ord. No. 09-594, § 80, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.25), 4-21-92; Ord. No. 90-43, § 2(150.25), 2-27-90. Code 2001 § 22-435.)

19.70.060 Notice.

(1) Contents. The director shall prepare the following notices as applicable:

(a) Notice of application. A notice of application shall contain:

(i) The name of the applicant and, if applicable, the project name and file number.

(ii) The date of application, the notice of completion, and the notice of application.

(iii) The street address of the subject property or, if this is not available, a description of the location of the property in nonlegal language. Except for notices published in the newspaper of general circulation in the city, the notice must also include a vicinity map that identifies the subject property.

(iv) A brief description of the requested decision, including a citation to the provision of this title governing the request, a list of the project permits included in the application and, if applicable, a list of any studies requested. To the extent known by the city, the notice shall include any other permits which are not included in the application.

(v) A statement of the availability of the official file.

(vi) A statement of the right of any person to submit written comments to city staff or the hearing examiner and to appear at the public hearing of the hearing examiner to give comments orally.

(vii) The identification of existing environmental documents that evaluate the proposed project and the location where the application and any studies can be reviewed.

(viii) A statement of the preliminary determination, if one has been made at the time of notice, of those development regulations that will be used for project mitigation and of consistency as provided in RCW 36.70B.040.

(b) Notice of public hearing. In addition to the information specified in the notice of application, the notice of public hearing shall include the following:

(i) The date, time, and place of the public hearing.

(ii) 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. For agency decision appeals this right is limited to those entitled to appeal.

(c) Notice of agency decision appeal. A notice of an agency decision appeal shall contain:

(i) The file number and a brief description of the matter being appealed.

(ii) A statement of the scope of the appeal, including a summary of the errors alleged and specific factual findings and conclusions disputed in the letter of appeal.

(iii) The date, time, and place of the public hearing on the appeal.

(iv) A statement of who may participate in the appeal.

(v) A statement of how to participate in the appeal.

(2) Distribution. The director of community development services shall distribute these notices as follows:

(a) Notice of application. Within 14 calendar days of issuing the letter of completeness, the director shall distribute the notice of application as follows:

(i) A copy of the notice of application will be published in a newspaper of general circulation in the city;

(ii) At least three copies of the notice of application will be conspicuously posted on or near the subject property. Of these, at least one will be posted on or adjacent to every public right-of-way providing primary vehicular access to any property that abuts the subject property;

(iii) A copy of the notice will be posted on each of the official notification boards of the city and public libraries within the city;

(iv) A copy will be mailed to the persons receiving the property tax statements for all property within 300 feet of each boundary of the subject property.

(b) Notice of public hearing. The director shall distribute the notice of public hearing at least 14 calendar days before the hearing in the same manner as the notice of application except no posting needs to be done on or near the subject property.

(c) Agency decision appeals. Distribution of notices involving an agency decision appeal shall occur at least 10 calendar days before the hearing on the appeal, and shall be mailed to each person entitled to appeal the decision. No further distribution is required for agency decision appeals.

(3) Public notification sign. Except for in agency decision appeals, the applicant shall erect at least one public notification sign which complies with standards developed by the department within 14 calendar days of the issuance of the letter of completeness. This sign shall be located on or near the subject property facing the right-of-way or vehicle access easement or tract providing direct vehicle access to the subject property. The director may require the placement of additional public notice signs on or near the subject property if he or she determines that this is appropriate to provide notice to the public. The sign shall be removed within seven calendar days after the final decision of the city on the matter.

(Ord. No. 14-760, § 3, 3-4-14; Ord. No. 09-594, § 81, 1-6-09; Ord. No. 07-573, § 25, 12-4-07; Ord. No. 01-399, § 3, 8-7-01; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.30), 4-21-92; Ord. No. 90-43, § 2(150.30), 2-27-90. Code 2001 § 22-436.)

Cross reference: Environmental policy administrative appeals, FWRC 14.10.060.

19.70.090 Staff report.

(1) Contents. The director shall prepare a staff report concerning the application or agency decision appeal, containing the following:

(a) All pertinent application materials, including any notice of appeal and any agency decision.

(b) All written comments regarding the matter received by the department prior to distribution of the staff report.

(c) An analysis of the application under any relevant provisions of this title and the comprehensive plan.

(d) A statement of the facts found by the director and the conclusions drawn from those facts, including an analysis of any alleged errors or disputed findings or conclusions in an agency decision appeal.

(e) A recommendation on the matter.

(2) Distribution. At least seven calendar days before the hearing, the director shall distribute the staff report to the hearing examiner, the applicant, the appellant, any person who specifically requested it, and in an appeal any person who requested the agency’s decision.

(Ord. No. 09-594, § 84, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.35), 4-21-92; Ord. No. 90-43, § 2(150.35), 2-27-90. Code 2001 § 22-439.)

19.70.100 Public hearing.

(1) Generally. The hearing examiner shall hold a hearing on each application that is open to the public. The hearing examiner shall make a complete electronic sound recording of each public hearing.

(2) Participation. Any person may participate in a public hearing under this process, except those involving agency decision appeals. Only those persons entitled to appeal may participate in the appeal. Participation is accomplished through either or both of the following ways:

(a) By submitting written comments to the hearing examiner, either by delivering these comments to the department prior to the hearing or by giving these directly to the hearing examiner at the hearing.

(b) 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.

(3) Continuation. 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 he or she needs more information on the matter. 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.

(Ord. No. 09-594, § 85, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.40), 4-21-92; Ord. No. 90-43, § 2(150.40), 2-27-90. Code 2001 § 22-440.)

19.70.120 Burden of proof.

The applicant has the responsibility of persuading the hearing examiner by a preponderance of the evidence that, under the provisions of this chapter, the applicant is entitled to the requested decision. The hearing examiner may take notice of (1) any judicially cognizable facts, (2) technical or scientific facts within the agency’s specialized knowledge, and (3) codes or standards that have been adopted by an agency of the United States, of this state or of another state, or by a nationally recognized organization or association. The hearing examiner shall give great deference to the agency’s interpretation of its own properly promulgated regulations, matters within its expertise, and procedural determinations.

(Ord. No. 09-594, § 87, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.50), 4-21-92; Ord. No. 90-43, § 2(150.50), 2-27-90. Code 2001 § 22-442.)

19.70.125 Scope of agency decision appeals.

The scope of agency decision appeals is limited to the errors of law raised or the specific factual findings and conclusions disputed in the notice of appeal. The hearing examiner may only consider evidence, testimony, or comments relating to errors of law 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 title or any other law.

(Ord. No. 09-594, § 88, 1-6-09. Code 2001 § 22-442.5.)

19.70.150 Hearing examiner’s decision.

(1) General. After considering all of the information and comments submitted on the matter, the hearing examiner shall issue a written decision. In an agency decision appeal, the examiner shall affirm, reverse, or modify the decision being appealed based on the hearing examiner’s findings and conclusions. Subsections (3), (4) and (5) of this section do not apply to agency decision appeals.

(2) Timing.

(a) Unless a longer period is agreed to by the applicant, the hearing examiner shall issue the decision within 10 working days after the close of the public hearing.

(b) The hearing examiner will endeavor to issue his or her decision on the land use and design components of the process IV project permit approval within 120 days of the issuance of the letter of completeness issued pursuant to FWRC 19.15.045, except that the following periods shall not be included in the calculation of the 120-day period:

(i) Any period during which the applicant has been requested by the city to correct plans, perform required studies, or provide additional required information. In these instances, the period excluded from the 120-day calculation shall begin on the date the city notifies the applicant of the need for additional information and run until the earlier of the date the city determines whether the additional information satisfies the request for information or 14 days after the date the information has been provided to the city. If the city determines that the information submitted by the applicant under this subsection is insufficient, it shall notify the applicant of the deficiencies and the procedures under this subsection shall apply as if a new request for studies had been made.

(ii) Any period during which an environmental impact statement is being prepared following a determination of significance pursuant to Chapter 43.21C RCW.

(iii) Any period for administrative appeals of the SEPA threshold determination; provided, that the time period for consideration of such appeals shall not exceed 90 days for an open record appeal hearing. The parties to an appeal may agree to extend the 90-day period.

(iv) Any extension of time mutually agreed upon by the applicant and the city.

The 120-day time period does not apply if a project permit application under this chapter requires an amendment to the comprehensive plan or this title; requires approval of a new fully contained community as provided in RCW 36.70A.350, a master planned resort as provided in RCW 36.70A.360, or the siting of an essential public facility as provided in RCW 36.70A.200; or if a project permit application under this chapter 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 under FWRC 19.15.045.

If the hearing examiner is unable to issue his or her decision on the land use or design review components of a process IV project permit application as provided in this subsection, the city shall provide written notice of this fact to the applicant. The notice shall include a statement of reasons why the decision has not been issued within the 120-day period, and an estimated date for issuance of the notice of final decision.

(3) Decision criteria. The hearing examiner shall use the criteria listed in the provisions of this title describing the requested decision in deciding upon the application. In addition, the hearing examiner may approve the application only if:

(a) It is consistent with the comprehensive plan;

(b) It is consistent with all applicable provisions of this title and all other applicable laws;

(c) It is consistent with the public health, safety and welfare;

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

(e) The proposed access to the subject property is at the optimal location and configuration for access; and

(f) Traffic safety impacts for all modes of transportation, both on and off site, are adequately mitigated.

(4) Conditions and restrictions. 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.

(5) Contents. The hearing examiner shall include the following in the examiner’s written decision:

(a) A statement granting, modifying and granting or denying the application.

(b) Any conditions and restrictions that are imposed.

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

(d) A statement of the hearing examiner’s conclusions based on those facts.

(e) A statement of the criteria used by the hearing examiner in making the decision.

(f) 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.

(g) A statement of any threshold determination made under the State Environmental Policy Act, Chapter 43.21C RCW.

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

(6) Distribution of written decision. Within five working days after the hearing examiner’s written decision is issued, the director shall distribute the decision as follows:

(a) A copy will be mailed to the applicant and the appellant.

(b) A copy will be mailed to each person who submitted written or oral testimony to the hearing examiner.

(c) A copy will be mailed to any person who has specifically requested it.

(d) A copy will be mailed to the King County assessor.

(Ord. No. 09-631, § 6, 11-3-09; Ord. No. 09-594, § 91, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.65), 4-21-92; Ord. No. 90-43, § 2(150.65), 2-27-90. Code 2001 § 22-445.)

19.70.260 Judicial review.

The final decision of the city in granting or denying an application or an appeal under this chapter may be reviewed pursuant to Chapter 36.70C RCW in the King County superior court. The land use petition must be filed within 21 calendar days after the final land use decision of the city; provided, that final decisions involving multifamily housing tax exemptions may be appealed to the King County superior court in accordance with the procedures in RCW 34.05.510 through 34.05.598, as provided in RCW 84.14.110(2), within 30 days after issuance of the decision of the hearing examiner.

(Ord. No. 09-594, § 103, 1-6-09; Ord. No. 97-291, § 3, 4-1-97; Ord. No. 92-133, § 3(150.130), 4-21-92; Ord. No. 90-43, § 2(150.130), 2-27-90. Code 2001 § 22-456.)


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Cross references: City council, Chapter 2.10 FWRC; community development services, Chapter 2.13 FWRC; power and jurisdiction of the hearing examiner, FWRC 2.95.040; review of administrative appeals under the environment policy of the city, FWRC 14.10.060; requirements for shoreline management review, Chapter 15.05 FWRC; requirements for drainage review, Chapter 16.25 FWRC; variances to the zoning regulations to be reviewed under process IV requirements, FWRC 19.45.010; appeals from the decision of the director of community development shall be processed under process IV review requirements, FWRC 19.55.050; appeals of modification requirements in developments or uses which require approval through process IV shall be appealed pursuant to the procedures of process III, FWRC 19.130.070; variance to the sign code provisions, FWRC 19.140.180.