Chapter 152 – PROCESS IIB
Sections:
152.05 User Guide
152.12 Pre-Submittal Meeting
152.15 Applications
152.17 Determination of Completeness of Application
152.18 Voiding of Application Due to Inactivity
152.20 Compliance with SEPA
152.22 Notice of Application
152.25 Official File
152.30 Notice of Hearing
152.35 Staff Report
152.45 Open Record Hearing
152.50 Electronic Sound Recording
152.55 Burden of Proof
152.60 Public Comments and Participation at the Hearing
152.65 Continuation of the Hearing
152.70 Recommendation by the Hearing Examiner
152.75 Distribution of Hearing Examiner’s Recommendation
152.85 Challenge to the Hearing Examiner’s Recommendation
152.90 City Council Action
152.105 Notice of Decision
152.110 Judicial Review
152.115 Lapse of Approval
152.120 Bonds
152.125 Complete Compliance Required
152.130 Time Limits
152.05 User Guide
Various places in this code indicate that certain developments, activities or uses are permitted only if approved using Process IIB. This chapter describes Process IIB.
If you are interested in obtaining approval for something through Process IIB 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 the code specifically states that a decision will be made using Process IIB. Please review KMC Title 20 for additional information regarding the City’s processing of project permits.
In addition, please refer to KZC 152.10 to see if that section applies.
152.12 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)
152.15 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 completed application, with supporting affidavits, on forms provided by the Planning and Building Department.
b. Any information or material that is specified in the provision of this code that describes the applied for decision.
c. Any additional information or material that the Planning Official specified 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; Ord. 4320 § 1, 2011; Ord. 3954 § 1, 2004)
152.17 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 152.15 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 calendar days after the date of the notice or, if applicable, after any extension granted in writing by the Planning and Building Director. The Planning and Building Director may grant an extension if, based on information submitted by the applicant with the request for the extension, the Planning and Building Director concludes that the applicant is making reasonable progress toward submitting the required information.
152.18 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)
152.20 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 regulations and City ordinances issued under the authority of SEPA. See KMC 24.02.230 regarding consolidation of certain appeal hearings under SEPA with the hearing required under this chapter.
(Ord. 4450 § 1, 2014)
152.22 Notice of Application
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 in 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 152.17.
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 calendar days nor more than 30 calendar days after the date of the notice, for submitting comments to the Planning Official, which the Planning Official shall consider prior to making a recommendation 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, including a vicinity map, will be distributed to the owners of all property within 300 feet of any boundary of the subject property.
2) 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.
3) 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.
4) The notice, or a summary thereof, including a vicinity map, will be posted on each of the official notification boards of the City.
5) The notice, or a summary thereof, will be distributed to each local, state and federal agency that the City knows has jurisdiction over the proposed development activity.
6) The notice will be posted on the City’s website.
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. 4193 § 1, 2009; Ord. 3954 § 1, 2004; Ord. 3814 § 1, 2001)
152.25 Official File
1. Contents – The Planning Official 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 and testimony 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 the 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 Planning and Building Department during regular business hours.
(Ord. 4811 § 1, 2022; Ord. 4491 § 3, 2015)
152.30 Notice of Hearing
1. Contents – The Planning Official shall prepare a notice of the hearing of the Hearing Examiner containing the following information:
a. The name of the applicant and, if applicable, the project name.
b. The street address of the subject property or, if this is not available, a locational description in nonlegal language along with a vicinity map that identifies the subject property.
c. The citation of the provision of this code describing the applied for decision.
d. A brief verbal description of the requested decision.
e. The time and place of the hearing.
f. A statement of the availability of the official file.
g. A statement of the right of any person to submit written comments or testimony to the Hearing Examiner and to appear at the public hearing of the Hearing Examiner to give comments or testimony orally.
h. A statement that only persons who submit written or oral comments or testimony to the Hearing Examiner may challenge the recommendation of the Hearing Examiner.
2. Distribution – The Planning Official shall distribute this notice at least 14 calendar days before the public hearing as follows:
a. The notice, or a summary thereof, including a vicinity map, will be distributed to the owners of all property within 300 feet of any boundary of the subject property.
b. 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.
c. 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.
d. The notice, or a summary thereof, including a vicinity map, will be posted on each of the official notification boards of the City.
e. The notice will be posted on the City’s website.
3. Combined Notice – The Planning Official may combine the notice required under this section with the notice required under KZC 152.22.
(Ord. 4193 § 1, 2009; Ord. 4072 § 1, 2007; Ord. 3954 § 1, 2004)
152.35 Staff Report
1. Contents – The Planning Official shall prepare a staff report containing the following information:
a. All pertinent application materials.
b. All comments regarding the matter received by the Planning and Building Department prior to distribution of the staff report.
c. An analysis of the application in relation to the applicable provisions of this code and the Comprehensive Plan.
d. A statement of the facts found by the Planning Official and the conclusions drawn from those facts.
e. A recommendation on the matter.
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.
(Ord. 4491 § 3, 2015; Ord. 4193 § 1, 2009)
152.45 Open Record Hearing
1. General – The Hearing Examiner shall hold an open record hearing on each application.
2. Hearing Declared Open – The hearings of the Hearing Examiner are open to the public.
3. Effect – The hearing of the Hearing Examiner is the hearing for City Council.
152.50 Electronic Sound Recording
The Hearing Examiner shall make a complete electronic sound recording of each public hearing.
152.55 Burden of Proof
The applicant has the responsibility of convincing the City that, under the provisions of this chapter, the applicant is entitled to the requested decision.
152.60 Public Comments and Participation at the Hearing
Any person may participate in the hearing in either or both of the following ways:
1. By submitting written testimony or comments to the Hearing Examiner, either by delivering the testimony or comments to the Planning and Building Department prior to the hearing or by giving it directly to the Hearing Examiner at the hearing.
2. By appearing in person, or through a representative, at the hearing and providing oral testimony or comments directly to the Hearing Examiner. The Hearing Examiner may reasonably limit the extent of oral testimony or comments to facilitate the orderly and timely conduct of the hearing.
(Ord. 4491 § 3, 2015)
152.65 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 matter or if the Hearing Examiner determines that he/she needs more information on the matter. However, if the continuation of the hearing would result in the Hearing Examiner not complying with the time limit for issuing his/her recommendation consistent with KZC 152.70, the Hearing Examiner may continue the hearing only if the time limit for issuing his/her recommendation is extended under the provisions of that section. 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.
152.70 Recommendation by the Hearing Examiner
1. General – After considering all of the information, testimony and comments submitted on the matter, the Hearing Examiner shall issue a written recommendation to the City Council to either:
a. Grant the application; or
b. Modify and grant the application; or
c. Deny the application.
2. Time Limits – The Hearing Examiner shall issue his/her recommendation within eight (8) calendar days of the date of the open record hearing, as stated in the notice provided under KZC 152.30, except as follows:
a. If the Hearing Examiner and the applicant agree in writing on an extension of the time limit for the Hearing Examiner to issue his/her recommendation, the Hearing Examiner has the additional agreed-upon time to issue his/her recommendation.
b. If the proposed development activity presents a special circumstance, as defined below, the Hearing Examiner shall issue his/her recommendation within 21 calendar days of the date of the open record hearing as stated in the notice provided under KZC 152.30. For the purposes of this section, a permit for a proposed development activity presents a special circumstance under RCW 36.70B.140 when, because of the unusually large size of the subject property, the unusual complexity of what the applicant is proposing, the unusually large number of discretionary permits or approvals that are required and/or other unusual characteristics stated on the record by the Hearing Examiner, the proposed development activity requires more in-depth review and/or analysis than could reasonably be conducted under the time frame that would otherwise apply.
3. Decisional Criteria – The Hearing Examiner shall use the criteria listed in the provision of this code describing the requested decision in making a recommendation to City Council on the application. In addition, the Hearing Examiner may recommend approval of 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.
4. Conditions and Restrictions – The Hearing Examiner shall include in the written recommendation any conditions and restrictions that he/she determines are necessary to eliminate or minimize any undesirable effects of granting the application.
5. Contents – The Hearing Examiner shall include the following in his/her written recommendation to City Council:
a. A statement of facts presented to the Hearing Examiner that support his/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. A summary of the rights, as established in this chapter, of the applicant and others to challenge the recommendation of the Hearing Examiner.
152.75 Distribution of Hearing Examiner’s Recommendation
The Planning Official shall distribute the recommendation of the Hearing Examiner as follows:
1. Within four (4) business days after the Hearing Examiner’s written recommendation is issued, a copy will be sent to the applicant, and to any persons who submitted written or oral testimony to the Hearing Examiner on the application. The Planning Official is not required to send a notice of decision to a party who signed a petition, unless such party also submitted independent written comments or information.
2. Prior to the meeting where City Council considers the application, a copy will be sent to each member of City Council. The Planning Official shall include the following material with the copy of the recommendation sent to each City Council member:
a. A draft resolution or ordinance that embodies the Hearing Examiner’s recommendation.
b. Any challenge to the Hearing Examiner’s recommendation filed under KZC 152.85 and received by the Planning and Building Department before the Hearing Examiner’s recommendation is sent to the members of City Council.
(Ord. 4491 § 3, 2015; Ord. 4193 § 1, 2009; Ord. 3954 § 1, 2004; Ord. 3814 § 1, 2001)
152.85 Challenge to the Hearing Examiner’s Recommendation
1. Who May Challenge – The recommendation of the Hearing Examiner may be challenged by:
a. The applicant; and
b. Any person who submitted written or oral testimony to the Hearing Examiner on the application. A party who signed a petition may not challenge unless such party also submitted independent written comments or information.
2. Contents of a Challenge – The challenge must be in writing and contain a statement of the factual findings and conclusions made by the Hearing Examiner that are contested. The challenge will be considered only on the record developed in the hearing before the Hearing Examiner.
3. How and When To File a Challenge
a. The challenge may be filed by delivering it to the Planning and Building Department, together with the fee established by ordinance, within seven (7) calendar days of the date of distribution of the Hearing Examiner’s recommendation on the application; provided, that if the seventh day falls on a Saturday, Sunday, or legal holiday, the seventh day of the challenge period shall be extended through the next day on which the City is open for business.
b. Prior to delivery under subsection (3)(a) of this section, the person filing the challenge shall mail, via postal service or electronically, or personally deliver a copy of the challenge and a notice of the deadline for responding to the challenge as established in subsection (3)(c) of this section to those persons described in subsection (1) of this section. Proof of delivery shall be by affidavit attached to the copy of the challenge letter filed with the Planning and Building Department pursuant to subsection (3)(a) of this section.
c. Any person receiving a copy of the challenge letter, pursuant to subsection (3)(b) of this section, may file a written response to the challenge. Such response shall be submitted to the Planning and Building Department within seven (7) calendar days after the day the challenge letter was filed with the Planning and Building Department.
d. Any person filing a response pursuant to this section shall mail, via postal service or electronically, or personally deliver a copy of the response to those persons described in subsection (1) of this section. Proof of delivery shall be by affidavit attached to the copy of the response to the challenge letter filed with the Planning and Building Department pursuant to subsection (3)(a) of this section.
(Ord. 4749 § 1, 2021; Ord. 4491 § 3, 2015; Ord. 4193 § 1, 2009; Ord. 3814 § 1, 2001)
152.90 City Council Action
1. General – The City Council shall consider the application at a scheduled meeting within 45 calendar days of the date of issuance of the Hearing Examiner’s recommendations on the proposal.
2. City Council Decision – After consideration of the entire matter on the record before the Hearing Examiner, the City Council shall, by motion, approved by a majority of the total membership, take one (1) of the following actions:
a. Adopt an ordinance or resolution to either:
1) Grant the application; or
2) Modify and grant the application; or
3) Deny the application.
b. If the City Council concludes, based on a challenge to the recommendation or its own review of the recommendation, that the record compiled by the Hearing Examiner is incomplete or inadequate for 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 directions to reopen the hearing and provide supplementary findings and conclusions on the matter or matters specified in the motion. Any remand under this section shall constitute a special circumstance under RCW 36.70B.140. The motion may limit the scope of the issues to be considered at this rehearing. In the event of a remand, the Hearing Examiner shall hold the rehearing within 28 calendar days of the date of the City Council motion, and the time limits and other pertinent requirements of this chapter shall apply to the rehearing.
3. Decisional Criteria – The City Council shall use the criteria listed in KZC 152.70(3) in deciding upon the application.
4. Conditions and Restrictions – The City Council shall include in the ordinance or resolution granting the application any conditions and restrictions they determine 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.
5. Findings of Fact and Conclusion – The City Council shall include in their ordinance or resolution:
a. A statement of the facts presented to City Council that support the decision, including any conditions and restrictions that they impose; and
b. The City Council’s conclusions based on those facts.
6. Effect – Subject to the provision of KZC 152.100, the ordinance or resolution of City Council is the final decision of the City.
152.105 Notice of Decision
1. General – Following the decision by City Council, the Planning Official shall prepare a notice of decision on the application.
2. Distribution – Within four business days after the City Council’s decision is made, the Planning Official shall distribute the decision, or a summary thereof, along with a summary of any threshold determination under SEPA, to the following persons:
a. The applicant.
b. Each person who submitted written or oral comments or testimony 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.
(Ord. 4811 § 1, 2022; Ord. 4193 § 1, 2009; Ord. 3954 § 1, 2004; Ord. 3814 § 1, 2001)
152.110 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. The date of the final decision of the City is the date of passage of the City Council ordinance or resolution constituting the City’s final decision. For more information on the judicial review process for land use decisions, see Chapter 36.70C RCW.
(Ord. 4811 § 1, 2022)
152.115 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 152.110, 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 152.110, 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)
152.120 Bonds
The City Council may require a bond under Chapter 175 KZC to ensure compliance with any aspect of the permit or approval.
152.125 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 and Building Director determines that there will be substantial changes in the impacts on the neighborhood or the City as a result of the change.
152.130 Time Limits
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 and Building 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.