Chapter 145 – PROCESS I

Sections:

145.05    User Guide

145.10    Proposal Requiring Approval through Process IIA or IIB

145.12    Pre-Submittal Meeting

145.15    Applications

145.17    Determination of Completeness of Application

145.18    Voiding of Application Due to Inactivity

145.20    Compliance with SEPA

145.22    Notice of Application and Comment Period

145.25    Official File

145.35    Burden of Proof

145.45    Planning Director’s Decision

145.50    Effect of the Decision

145.60    Appeals

145.65    Notice of the Appeal Hearing

145.70    Participation in the Appeal

145.75    Scope of the Appeal

145.80    Staff Report on the Appeal

145.85    Public Hearing on the Appeal

145.90    Electronic Sound Recordings

145.95    Burden of Proof

145.100    Continuation of the Hearing

145.105    Decision on the Appeal

145.110    Judicial Review

145.115    Lapse of Approval

145.120    Bonds

145.125    Complete Compliance Required

145.130    Time Limits

145.05 User Guide

Various places of this code indicate that certain developments, activities or uses are permitted only if approved using Process I. This chapter describes how Process I works.

If you are interested in obtaining approval for something through Process I or if you wish to participate in a decision that will be made using this process, you should read this chapter. However, this chapter only applies if another provision of this code specifically states that a decision will be made using Process I. Please review KMC Title 20 for additional information regarding the City’s processing of project permits.

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145.10 Proposal Requiring Approval through Process IIA or IIB

If the development, use or activity that requires approval through Process I is part of a proposal that requires additional approval through Process IIA or Process IIB, the entire proposal will be decided upon using that other process.

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145.12 Pre-Submittal Meeting

1.    General – Before applying for a permit or approval under this chapter, the applicant shall attend a pre-submittal meeting with the Planning Official consistent with the provisions of this section.

2.    Scheduling – The Planning and Building Department will arrange a time for the pre-submittal meeting as soon as is reasonably practicable after the meeting is requested by the applicant.

3.    Purpose – The purpose of the pre-submittal meeting is for the Planning Official to provide information to the applicant regarding what information needs to be submitted for a complete application.

4.    Time Limits – The City will not accept an application under this chapter unless the applicant attended a pre-submittal meeting under this section, regarding the proposal for which application is made, within the six (6) months immediately prior to the date the application is submitted.

(Ord. 4491 § 3, 2015; Ord. 3814 § 1, 2001)

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145.15 Applications

1.    Who May Apply – Any person may, personally or through an agent, apply for a decision regarding property he/she owns.

2.    How To Apply – The applicant shall file the following information with the Planning and Building Department:

a.    A complete application, with supporting affidavits, on forms provided by the Planning and Building Department.

b.    Any information or material that is specified in the provisions of this code that describes the applied for decision.

c.    Any additional information or material that the Planning Official specifies at the pre-submittal meeting.

d.    Any additional information or material which must be submitted in order to have a complete application under KMC Title 20.

3.    Fee – The applicant shall submit the fee established by ordinance with the application.

(Ord. 4491 § 3, 2015)

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145.17 Determination of Completeness of Application

1.    General – Within 28 calendar days after the date of submittal of the application, the Planning Official shall mail to the applicant, or provide in person to the applicant, a written determination of whether the application is complete, and if the application is not complete, what must be submitted by the applicant in order for the application to be complete. In this written determination, the Planning Official shall also identify, to the extent known to the City, the other agencies of local, state or federal government that may have jurisdiction over some aspect of the proposed development activity. The Planning Official may also include other information with this determination that will assist in the review and decision upon the application.

2.    Standard for Determining Completeness – An application is complete for purposes of this section when it contains the information required by KZC 145.15 and is sufficient for continued processing even though additional information may be required or modification of the proposal may be subsequently undertaken. A determination of completeness under this section does not preclude the City from requesting additional information or studies either at the time of providing the written determination of completeness or subsequently if new information is required.

3.    Review of Additional Information – The Planning Official shall provide a written determination under subsection (1) of this section within 14 calendar days of the date the applicant submits additional information required under this section.

4.    Application Considered Withdrawn – Unless the notice specifying additional information to be submitted for a complete application establishes a longer period, the application will be considered withdrawn for all purposes if the applicant has not submitted the required information to the City within 90 days after the date of the notice or, if applicable, after any extension granted in writing by the Planning Director. The Planning Director may grant an extension if, based on information submitted by the applicant with the request for the extension, the Planning Director concludes that the applicant is making reasonable progress toward submitting the required information.

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145.18 Voiding of Application Due to Inactivity

An application for a decision under this chapter, for which approval has not yet been granted, may be canceled for inactivity if an applicant fails to respond to any Department’s written request for revisions, corrections, or additional information within 60 days of the request. The Planning Official may extend the response period beyond 60 days if within that time period the applicant provides and subsequently adheres to an approved schedule with specific target dates for submitting the full revisions, corrections, or other information needed by the requesting Department.

(Ord. 3852 § 1, 2002)

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145.20 Compliance with SEPA

The State Environmental Policies Act (Chapter 43.21C RCW) applies to some of the decisions that will be made using this chapter. The Planning Official shall evaluate each application and, where applicable, comply with SEPA and with state regulation and City ordinances issued under the authority of SEPA.

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145.22 Notice of Application and Comment Period

1.    Contents – The Planning Official shall prepare a notice of each application containing the following information:

a.    The street address of the subject property, or if this is not available, a locational description of nonlegal language along with a vicinity map that identifies the subject property.

b.    The date of application.

c.    The date of the notice of completeness under KZC 145.17.

d.    The date of this notice.

e.    A description of the proposed development activity and the decision that will be made under this chapter; a list of the permits and approvals included in the application; and an identification of other necessary permits not included in the application to the extent known by the City.

f.    A list of any studies requested by the City pertinent to the application.

g.    Identification of existing environmental documents that evaluate the proposed development activity.

h.    The location where the official file may be examined.

i.    The time limit, which will not be less than 18 days nor more than 30 days after the date of the notice, for submitting comments to the Planning Director, which the Planning Director shall consider before making the decision on the application.

j.    Information regarding how to request a copy of the decision once it is made.

k.    General information regarding how to appeal decisions made under this chapter.

l.    A statement of any preliminary determination, if any, made by the Planning Official at the time of the notice regarding the development regulations that the Planning Official will propose as mitigation of project impact and the consistency of the proposed development activity with those development regulations.

m.    The name of the applicant.

2.    Distribution

a.    Not more than 10 calendar days after the Planning Official determines that the application is complete, and at least 18 calendar days prior to the end of the comment period, the Planning Official shall distribute this notice as follows:

1)    The notice, or a summary thereof, will be published in the official newspaper of the City. The published notice does not require a vicinity map.

2)    The notice, or a summary thereof, including a vicinity map, will be posted on each of the official notification boards of the City.

3)    The notice, or a summary thereof, including a vicinity map, will be distributed to the residents of each piece of property adjacent to or directly across the street from the subject property.

4)    The notice will be distributed to each local, State and federal agency that the City knows has jurisdiction over the proposed development activity.

5)    The notice will be posted on the City’s website and the City will provide the public with a means to register to receive all such notices on a timely basis via email or equivalent means of electronic communication.

b.    Not more than 10 calendar days after the Planning Official determines that the application is complete, and at least 18 calendar days prior to the end of the comment period, the applicant shall provide for and erect public notice signs as follows:

1)    The signs shall be designed and constructed to City standards. A copy of the notice described in subsection (1) of this section and a site plan and/or vicinity map shall be attached to each sign.

2)    The Planning and Building Department is authorized to develop the standards for the public notice signs necessary for implementation of this section.

3)    One (1) sign shall be erected on or near the subject property facing each public right-of-way adjacent to the subject property and private easement or tract road providing primary vehicular access to the subject property and to any property that abuts the subject property. The Planning and Building Department shall approve the location of each sign.

4)    The signs may not be removed until 21 calendar days after the final decision of the City on the application, and the applicant shall remove the signs within seven (7) calendar days thereafter.

(Ord. 4491 § 3, 2015; Ord. 4437 § 1, 2014; Ord. 4372 § 1, 2012; Ord. 4193 § 1, 2009; Ord. 3954 § 1, 2004; Ord. 3814 § 1, 2001)

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145.25 Official File

1.    Contents – The Planning Official shall compile an official file on the application containing the following:

a.    All application material submitted by the applicant.

b.    All written comments received on the matter.

c.    The written decision of the Planning Director.

d.    If the decision of the Planning Director is appealed, the following will be added to the file:

(1)    The letter of appeal.

(2)    All written comments submitted regarding the appeal.

(3)    The staff report on the appeal.

(4)    The electronic sound recording of the hearing on the appeal.

(5)    The decision of the Hearing Examiner on the appeal.

e.    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 Planning and Building Department during regular business hours.

(Ord. 4491 § 3, 2015)

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145.35 Burden of Proof

The applicant has the responsibility of convincing the Planning Director that, under the provisions of this chapter, the applicant is entitled to the requested decision.

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145.45 Planning Director’s Decision

1.    General – After the deadline for submitting comments and after considering all of the information and comments submitted on the matter, the Planning Director shall issue a written decision either:

a.    Granting the application; or

b.    Modifying and granting the application; or

c.    Denying the application.

2.    Decisional Criteria – The Planning Director shall use the criteria listed in the provision of this code describing the requested decision in deciding upon the application. In addition, the Planning Director may approve the application only if:

a.    It is consistent with all applicable development regulations and, to the extent there is no applicable development regulation, the Comprehensive Plan; and

b.    It is consistent with the public health, safety and welfare.

3.    Conditions and Restrictions – The Planning Director shall include in the written decision any conditions and restrictions that he/she determines are necessary to eliminate or minimize any undesirable effects of granting the application. Any conditions and restrictions that are imposed become part of the decision.

4.    Contents – The Planning Director shall include in the 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/her that support the decision, including any conditions and restrictions that are imposed;

d.    A statement of the Director’s conclusions based on those facts;

e.    A statement of the criteria used by the Director in making the decision; and

f.    A summary of the procedures, as established in this chapter, to appeal the decision of the Director.

5.    Notice of Decision – Within four (4) business days after the Planning Director’s written decision is issued, the Planning Official shall distribute the decision or summary thereof, along with a summary of any threshold determination under SEPA and the procedures for appealing the decision under this chapter, to the following persons:

a.    The applicant.

b.    Each person who submitted written comments or information on the application. The Planning Official is not required to distribute a notice of decision to a party who signed a petition, unless such party also submitted independent written comments or information.

c.    Each person who has requested notice of the decision.

The decision shall be posted on the City’s website.

6.    The Planning Director retains jurisdiction to correct errors in and/or to clarify the decision until the appeal period under KZC 145.60 has expired.

(Ord. 4193 § 1, 2009; Ord. 4072 § 1, 2007; Ord. 3954 § 1, 2004; Ord. 3814 § 1, 2001)

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145.50 Effect of the Decision

The applicant may not engage in any activity based on the decision granting the application until the time to appeal has expired. If the decision is appealed, the applicant may not engage in any activity based on the decision granting the application until the City issues a final decision on the matter. If the decision of the Planning Director is not appealed, that decision is the final decision of the City.

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145.60 Appeals

1.    Who May Appeal – The decision of the Planning Director may be appealed by:

a.    The applicant, or

b.    Any person who submitted written comments or information to the Planning Director on the application during the comment period established in the Notice of Application. A party who signed a petition may not appeal unless such party also submitted independent written comments or information.

2.    Time To Appeal/How To Appeal – The appeal, in the form of a letter of appeal, must be delivered to the Planning and Building Department within 14 calendar days following the date of distribution of the Planning Director’s decision; provided, that the appeal letter must be delivered to the Planning and Building Department within 21 calendar days of the date of distribution of the Planning Director’s decision if state or local rules adopted pursuant to SEPA allow for public comment on a declaration of nonsignificance issued on the proposed development activity; and provided further, that if the fourteenth or twenty-first day, as applicable, of the appeal period falls on a Saturday, Sunday, or legal holiday, the appeal period shall be extended through the next day on which the City is open for business. It must contain:

a.    A clear reference to the matter being appealed; and

b.    A statement of the specific elements of the Planning Director’s decision disputed by the person filing the appeal.

3.    Fees – The person filing the appeal shall include with the letter of appeal the fee as established by ordinance.

4.    Jurisdiction – Appeals from the decision of the Planning Director will be heard by the Hearing Examiner.

(Ord. 4491 § 3, 2015; Ord. 4408 § 1, 2013; Ord. 4193 § 1, 2009; Ord. 3814 § 1, 2001)

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145.65 Notice of the Appeal Hearing

1.    Content – The Planning Official shall prepare a notice of the appeal containing the following:

a.    The file number and a brief verbal description of the matter being appealed.

b.    A statement of the scope of the appeal including a summary of the specific factual findings and conclusions disputed in the letter of appeal.

c.    The time and place of the public hearing on the appeal before the Hearing Examiner.

d.    A statement of who may participate in the appeal.

e.    A statement of how to participate in the appeal.

2.    Distribution – At least 14 calendar days before the hearing on the appeal, the Planning Official shall send a copy or a summary of this notice to each person entitled to appeal the decision under KZC 145.60.

(Ord. 3954 § 1, 2004)

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145.70 Participation in the Appeal

Only those persons entitled to appeal the decision under KZC 145.60 may participate in the appeal; provided, that the applicant may submit a written response to an appeal filed by an appellant, regardless of whether the applicant filed an appeal. These persons may participate in either or both of the following ways:

1.    By submitting written comments or testimony to the Hearing Examiner prior to the commencement of the hearing.

2.    By appearing in person, or through a representative, at the hearing and submitting oral testimony directly to the Hearing Examiner. The Hearing Examiner may reasonably limit the extent of the oral testimony to facilitate the orderly and timely conduct of the hearing.

(Ord. 4193 § 1, 2009)

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145.75 Scope of the Appeal

The appeal will be an open record appeal hearing. The scope of the appeal is limited to the specific elements of the Planning Director’s decision disputed in the letter of appeal, and the Hearing Examiner may only consider comments, testimony and arguments on these specific elements.

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145.80 Staff Report on the Appeal

1.    Content – The Planning Official shall prepare a staff report containing the following:

a.    The written decision of the Planning Director.

b.    All written comments submitted to the Planning Director.

c.    The letter of appeal.

d.    All written comments on the appeal received by the Planning and Building Department from persons entitled to participate in the appeal and within the scope of the appeal.

e.    An analysis of the specific elements of the Planning Director’s decision disputed in the letter of appeal.

2.    Distribution – At least seven (7) calendar days before the hearing, the Planning Official shall distribute the staff report to the following persons:

a.    The Hearing Examiner.

b.    The applicant.

c.    The person who filed the appeal.

d.    Any person who received the Director’s decision.

(Ord. 4491 § 3, 2015; Ord. 4193 § 1, 2009)

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145.85 Public Hearing on the Appeal

1.    Hearing in General – The Hearing Examiner shall hold a public hearing on the appeal.

2.    Hearing Declared Open – The hearings of the Hearing Examiner are open to the public.

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145.90 Electronic Sound Recordings

The Hearing Examiner shall make a complete electronic sound recording of each hearing.

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145.95 Burden of Proof

The person filing the appeal has the responsibility of convincing the Hearing Examiner that the Planning Director made an incorrect decision.

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145.100 Continuation of the Hearing

The Hearing Examiner may continue the hearing if, for any reason, he/she is unable to hear all of the public comments on the appeal or if the Hearing Examiner determines that he/she needs more information within the scope of the appeal. If, during the hearing, the Hearing Examiner announces the time and place of the next hearing on the matter, no further notice of that hearing need be given.

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145.105 Decision on the Appeal

1.    General – The Hearing Examiner shall consider all information and material within the scope of the appeal submitted by persons entitled to participate in the appeal. Based on the Hearing Examiner’s findings and conclusions, he/she shall either:

a.    Affirm the decision being appealed;

b.    Reverse the decision being appealed; or

c.    Modify the decision being appealed.

2.    Time Limits – The Hearing Examiner shall issue his/her decision within 90 calendar days of the date the letter of appeal was filed under KZC 145.60.

3.    Notice of Decision – Within four (4) business days after it is issued, the Hearing Examiner shall distribute his/her decision or summary thereof, along with a summary of any threshold determination under SEPA, to the following persons:

a.    The applicant.

b.    The person who filed the appeal.

c.    All other persons who participated in the appeal.

d.    Each person who has requested notice of the decision.

The decision shall be posted on the City’s website.

4.    Effect – The decision by the Hearing Examiner is the final decision of the City.

(Ord. 4193 § 1, 2009; Ord. 3954 § 1, 2004)

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145.110 Judicial Review

The action of the City in granting or denying an application under this chapter may be reviewed pursuant to the standards set forth in RCW 36.70C.130 in the King County Superior Court. The land use petition must be filed within 21 calendar days of the issuance of the final land use decision by the City. For more information on the judicial review process for land use decisions, see Chapter 36.70C RCW.

(Ord. 3814 § 1, 2001)

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145.115 Lapse of Approval

For final approvals under this chapter issued on or before December 31, 2014, the applicant must begin construction or submit to the City a complete building permit application for the development activity, use of land or other actions approved under this chapter within seven (7) years after the final approval of the City of Kirkland on the matter, or the decision becomes void; provided, however, that in the event judicial review is initiated per KZC 145.110, the running of the seven (7) years is tolled for any period of time during which a court order in said judicial review proceeding prohibits the required development activity, use of land, or other actions. For final approval under this chapter issued on or after January 1, 2015, the applicant must begin construction or submit to the City a complete building permit application for the development activity, use of land or other actions approved under this chapter within five (5) years after the final approval of the City of Kirkland on the matter, or the decision becomes void; provided, however, that in the event judicial review is initiated per KZC 145.110, the running of the five (5) years is tolled for any period of time during which a court order in said judicial review proceeding prohibits the required development activity, use of land, or other actions.

For final approvals under this chapter issued on or before December 31, 2014, the applicant must substantially complete construction for the development activity, use of land, or other actions approved under this chapter and complete the applicable conditions listed on the notice of decision within nine (9) years after the final approval on the matter, or the decision becomes void. For final approvals under this chapter issued on or after January 1, 2015, the applicant must substantially complete construction for the development activity, use of land, or other actions approved under this chapter and complete the applicable conditions listed on the notice of decision within seven (7) years after the final approval on the matter, or the decision becomes void.

For development activity, use of land, or other actions with phased construction, lapse of approval may be extended when approved under this chapter and made a condition of the notice of decision.

(Ord. 4372 § 1, 2012)

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145.120 Bonds

The Planning Director and the Hearing Examiner may require a bond as per Chapter 175 KZC to insure compliance with any aspect of a permit or approval.

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145.125 Complete Compliance Required

1.    General – Except as specified in subsection (2) of this section, the applicant must comply with all aspects, including conditions and restrictions, of an approval granted under this chapter in order to do everything authorized by that approval.

2.    Exception – Subsequent Modification – If a specific use or site plan is approved through this process, or any quasijudicial process under previous zoning codes, the applicant is not required to apply for and obtain approval through this process for a subsequent change in use or site plan unless:

a.    There is a change in use and this code establishes different or more rigorous standards for the new use than for the existing use; or

b.    The Planning Director determines that there will be substantial changes in the impacts on the neighborhood or the City as a result of the change.

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145.130 Time Limit

Any time limit, pursuant to Chapter 36.70B RCW, upon the City’s processing and decision upon applications under this chapter may, except as specifically otherwise stated in this chapter, be modified by a written agreement between the applicant and Planning Director. In the event a permit constitutes or presents a special circumstance under the provisions of this chapter, the time limits for the City to make a final decision and issue its notice of decision under Chapter 36.70B RCW are extended by the number of days that the final decision of the City was delayed as a result of that special circumstance.

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