Chapter 19.75
PROCESS V – QUASI-JUDICIAL REZONES1

Sections:

19.75.010    Process V generally.

19.75.020    Types of rezones.

19.75.040    Compliance with State Environmental Policy Act.

19.75.050    Official file.

19.75.060    Notice.

19.75.070    Staff report.

19.75.080    Open record hearing.

19.75.100    Burden of proof.

19.75.130    Recommendation by the hearing examiner.

19.75.140    City council action.

19.75.150    Notice of final decision.

19.75.160    Effect of city council approval of project-related rezone.

19.75.170    Modifications.

19.75.180    Major modifications.

19.75.190    Judicial review.

19.75.010 Process V generally.

Application for a quasi-judicial rezone must be reviewed and decided upon under process V. This chapter describes process V. Under process V, the hearing examiner will hold a public hearing and based on the record of that hearing make a recommendation to city council, which will then decide upon the application.

(Ord. No. 09-594, § 108, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-476.)

19.75.020 Types of rezones.

There are two types of quasi-judicial rezones as follows:

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

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

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

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

(Ord. No. 09-594, § 109, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-477.)

19.75.040 Compliance with State Environmental Policy Act.

The State Environmental Policy Act applies to 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.

(Ord. No. 09-594, § 111, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-479.)

19.75.050 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 report.

(c) All written comments received on the matter.

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

(e) The recommendation of the hearing examiner.

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

(g) The decision of city council.

(h) Any other information relevant to the matter.

(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. 09-594, § 112, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-480.)

19.75.060 Notice.

(1) Contents. The director shall prepare a notice of application containing the following information:

(a) The name of the applicant and, if applicable, the project name.

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

(c) 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 notice published in a newspaper of general circulation in the city, the notice must also include a vicinity map that identifies the subject property.

(d) 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 under RCW 36.70A.440. To the extent known by the city, the notice shall include any other permits which are not included in the application.

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

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

(g) A statement of the right of any person to submit written or oral comments to the hearing examiner regarding the application.

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

(i) 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.

(2) Distribution. The director shall distribute this notice at least 14 calendar days before the public hearing as follows:

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

(b) A copy will be published in the newspaper of general circulation in the city.

(c) A copy will be posted on each of the official notification boards of the city.

(3) Public notification sign. The applicant shall erect at least one public notification sign which complies with standards developed by the department at least 10 calendar days before the public hearing. 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. 09-594, § 113, 1-6-09; Ord. No. 07-573, § 29, 12-4-07; Ord. No. 99-337, § 2, 3-2-99; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-481.)

19.75.070 Staff report.

(1) Contents. The director shall prepare a staff report containing the following information:

(a) All pertinent application materials.

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

(c) An analysis of the application under the 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.

(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 following people: the hearing examiner, the applicant or appellant, and to any person who specifically requested it.

(Ord. No. 09-594, § 114, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-482.)

19.75.080 Open record hearing.

(1) Generally. The hearing examiner shall hold an open record 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 the hearing under this process in 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.

(4) Effect. The hearing of the hearing examiner is the hearing for city council on the application.

(Ord. No. 09-594, § 115, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-483.)

19.75.100 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 shall give great deference to the agency’s interpretation of its own properly promulgated regulations or matters within its expertise. 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.

(Ord. No. 09-594, § 117, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-485.)

19.75.130 Recommendation by the hearing examiner.

(1) Generally. After considering all of the information and comments submitted on the matter, the hearing examiner shall issue a written recommendation to the city council.

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

(3) Decisional criteria. The hearing examiner shall use the following criteria for quasi-judicial rezones:

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

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

(ii) The proposed rezone is appropriate because either:

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

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

(iii) It is consistent with the comprehensive plan;

(iv) It is consistent with all applicable provisions of the title, including those adopted by reference from the comprehensive plan; and

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

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

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

(ii) The proposed project complies with this title in all respects; and

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

(iv) The site plan is designed to minimize impacts upon the public services and utilities; and

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

(vi) The rezone has merit and value for the community as a whole.

(4) Conditions and restrictions. The hearing examiner shall include in the written recommendation any conditions and restrictions that the examiner determines are reasonably necessary to eliminate or minimize any undesirable effects of granting the requested rezone.

(5) Contents. The hearing examiner shall include the following in the written recommendation to city council:

(a) A statement of facts presented to the hearing examiner that supports his or her recommendation, including any conditions and restrictions that are recommended.

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

(c) A statement of the criteria used by the hearing examiner in making the recommendation.

(d) The date of issuance of the recommendation.

(6) Distribution of written recommendation. The director shall distribute copies of the recommendation of the hearing examiner as follows:

(a) After the hearing examiner’s written recommendation is issued, a copy will be sent to the applicant, to each person who submitted written or oral testimony to the hearing examiner, and to each person who specifically requested it.

(b) Prior to the meeting where city council considers the application, a copy will be sent to each member of city council. The director shall include a draft resolution or ordinance that embodies the hearing examiner’s recommendation with the copy of the recommendation sent to each city council member.

(Ord. No. 09-631, § 7, 11-3-09; Ord. No. 09-594, § 120, 1-6-09; Ord. No. 02-424, § 3, 9-17-02; Ord. No. 99-337, § 2, 3-2-99; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-488.)

19.75.140 City council action.

(1) Generally. The city council shall consider the application at a scheduled meeting within 90 calendar days of the date of issuance of the hearing examiner’s recommendation. This time period may be extended upon written agreement of the director and the applicant. Calculation of this time period shall not include any time necessary for a reopening of the hearing before the hearing examiner under subsection (3) of this section.

(2) Supplemental distribution. The director shall promptly send to each city council member any relevant information not previously distributed to council members.

(3) Scope of review. The city council review of the rezone application shall be limited to:

(a) The record of the hearing before the hearing examiner;

(b) Oral comments received during the public meeting that do not raise new issues or introduce information not contained in the examiner’s record;

(c) The hearing examiner’s written report;

(d) Evidence within the scope of the appeal that was not presented to or considered by the hearing examiner, but only if:

(i) At the time of the hearing examiner’s decision the party offering the evidence did not know of the evidence, was under no duty to discover the evidence, and could not have reasonably discovered the evidence; or

(ii) The hearing examiner improperly excluded or omitted the evidence from the record.

(4) Remand. If the city council concludes, based upon a challenge to the hearing examiner recommendation or upon its own review of the recommendation, that the record compiled by the hearing examiner is incomplete or inadequate to allow the city council to make a decision on the application, the city council may, by motion, remand the matter to the hearing examiner with the direction to reopen the hearing and provide supplementary findings and/or conclusions on the matter or matters specified in the motion.

(5) City council decision. After consideration of the entire matter using the criteria listed in FWRC 19.75.130, and upon approval by a majority of the total membership, the city council shall take one of the following actions:

(a) Project-related rezone. The city council has the option to:

(i) Grant the application as proposed; or modify and grant the application. In either case, it shall give effect to this decision by adopting a resolution of intent to rezone.

(ii) Deny the application. The city council shall give effect to this decision by adopting a resolution.

(b) Nonproject rezone. The city council has the option to:

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

(ii) Deny the application. The city council shall give effect to this decision by adopting a resolution.

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

(d) Findings of fact and conclusions. The city council shall include in the ordinance or resolution:

(i) A statement of the facts that support the decision, including any conditions and restrictions that are imposed; and

(ii) The city council’s conclusions based on those facts.

(e) Effect. The decision of city council is the final decision of the city.

(Ord. No. 09-594, § 121, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-489.)

19.75.150 Notice of final decision.

(1) General. Following the final decision by the city council, the director shall prepare a notice of the city’s final decision on the application.

(2) Distribution. After the city council’s decision is made, the director shall distribute a copy of the notice of the final decision as follows:

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

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

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

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

(Ord. No. 09-594, § 122, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-490.)

19.75.160 Effect of city council approval of project-related rezone.

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

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

(3) Activity after notice. The applicant may not engage in any activity based on the decision until the third working day after the notice of the final decision is distributed under FWRC 19.75.150.

(Ord. No. 09-594, § 123, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-491.)

19.75.170 Modifications.

(1) Minor modifications. Subsequent to the adoption of the resolution of intent to rezone, the applicant may apply for a minor modification to the site plan approved as part of that resolution. The city will use process III to review and decide upon an application for a minor modification. The city may approve a minor modification only if it finds that:

(a) The change will not result in reducing the landscaped area, buffer areas, or the amount of open space on the project;

(b) The change will not result in increasing the residential density or gross floor area of the project;

(c) The change will not result in any structure, or vehicular circulation or parking area being moved more than 10 feet in any direction and will not reduce any required yard;

(d) The change will not result in any increase in height of any structure;

(e) The change will not result in a change in the location of any access point to the project; and

(f) The change will not increase any adverse impacts or undesirable effects of the project and that the change in no way significantly alters the project.

(Ord. No. 09-594, § 124, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-492.)

19.75.180 Major modifications.

If the applicant seeks a modification to the approved site plan that does not meet all of the requirements of this chapter, the applicant may do so by submitting the application material required for a new quasi-judicial project-related rezone. The city will process and decide upon this application as if it were an application for a new quasi-judicial project-related rezone.

(Ord. No. 09-594, § 125, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-493.)

19.75.190 Judicial review.

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

(Ord. No. 09-594, § 126, 1-6-09; Ord. No. 97-291, § 3, 4-1-97. Code 2001 § 22-494.)


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Cross references: City council, Chapter 2.10 FWRC; hearing examiner, Chapter 2.95 FWRC; requirements for drainage review, Chapter 16.25 FWRC; quasi-judicial rezoning of certain districts to be under the process V review requirements, FWRC 19.35.030 et seq.