Chapter 19.70
DECISION APPEAL PROCEDURES
Sections:
19.70.010 Appeal on Type I and Type II permit decision.
19.70.030 Appeal on Type III permit city council decision.
19.70.040 Appeal on Type IV permit city council decision.
19.70.050 Appeal on Type V permit city council decision.
19.70.060 Appeal of shoreline master plan amendments and permit decisions.
19.70.010 Appeal on Type I and Type II permit decision.
A. Overview. For Type I and Type II permit decisions, the hearing examiner shall act as the appellate body, conducting an open record appeal hearing when an administrative decision is appealed.
B. Commencing an Appeal. Type I and II decisions may be appealed as follows:
1. A party of record may appeal the decision.
2. A party of record appealing a Type I or II decision must submit a completed written appeal which sets forth:
a. Facts demonstrating that the person is adversely affected by the decision.
b. A concise statement identifying each alleged error of fact, law, or procedure, and the manner in which the decision fails to satisfy the applicable decision criteria.
c. The specific relief requested.
d. Any other information reasonably necessary to make a decision on the appeal.
3. The written appeal, and the appeal fee and deposit, must be received by the Poulsbo planning department no later than four-thirty p.m. on the fourteenth calendar day following the date the notice of decision was issued.
4. The planning director shall review a submitted appeal and reject an appeal which fails to meet all the requirements of this section.
C. Notice of Open Record Appeal Hearing before Hearing Examiner. If a Type I or II decision is appealed, an open record appeal hearing before the city hearing examiner shall be set and notice of the appeal hearing shall be provided to all parties of record no less than fourteen calendar days prior to the date on which the hearing examiner will hold the appeal hearing. The notice of appeal hearing shall include the following:
1. Name of the approved project under appeal.
2. Name of the appellant.
3. The street address of the subject property and a description in nonlegal terms sufficient to identify its location.
4. A brief description of the administrative decision which is being appealed.
5. The date, time and place of the open record appeal hearing before the hearing examiner.
D. Hearing Examiner Public Hearing on Appeal.
1. The hearing examiner shall conduct an open record hearing on a Type I or Type II decision appeal. Notice of the appeal hearing shall be given as provided in subsection C of this section.
2. The appellant, applicant, owner(s) of property subject to the application, and the city shall be designated parties to the appeal. Only designated parties may participate in the appeal hearing by presenting testimony or calling witnesses to present testimony and by providing exhibits.
3. Interested persons, groups, associations, or other entities who have not appealed may participate only if called by one of the parties to present information; provided, that the hearing examiner may allow nonparties to present relevant testimony if allowed under the hearing examiner’s rules of procedure.
4. The hearing examiner shall create a complete record of the public hearing, including all exhibits introduced at the hearing and an electronic sound recording of each hearing.
E. Hearing Examiner Decision on Appeal.
1. Within thirty calendar days after the close of the record for the Type I or II decision appeal, the hearing examiner shall issue a written decision to grant, grant with modifications, or deny the appeal.
2. The decision on appeal shall be mailed to all parties of record.
3. When making the decision, the hearing examiner shall give substantial weight to the decision of the review authority.
4. The hearing examiner’s decision shall be made upon whether the appellant has carried the burden of proving that the Type I or Type II decision is not supported by a preponderance of the evidence or was clearly erroneous.
F. Request for Reconsideration.
1. Any designated party to the appeal who participated in the hearing may file a written request with the hearing examiner for reconsideration within seven calendar days of the date of the hearing examiner’s decision.
2. The request shall explicitly set forth alleged errors of procedure, law, or fact. No new evidence may be submitted in support of or in opposition to a request for reconsideration.
3. The hearing examiner shall summarily dismiss a request for reconsideration that is without merit on its face or brought merely to secure a delay.
4. The hearing examiner shall act within fourteen calendar days after the filing of the request for reconsideration by either denying the request or issuing a revised decision, unless a longer period has been identified by the hearing examiner.
5. The decision on the request for reconsideration and/or the revised decision shall be sent to all parties of record.
6. The appeal period shall begin from the date the decision on the reconsideration is issued.
7. The hearing examiner’s action following reconsideration is not subject to further requests for reconsideration.
G. Hearing Examiner Appeal Decision. The hearing examiner’s decision on Type I and II appeals may be appealed to the city council as provided for in Section 19.70.020.
1. The planning director shall mail a notice of appeal decision to all parties of record within seven calendar days of the hearing examiner issuance of an appeal decision. The notice of appeal decision shall include at a minimum the following:
a. Name of the approved project under appeal.
b. The street address of the subject property and a description in nonlegal terms sufficient to identify its location.
c. A brief description of the appeal decision.
d. The date of the notice of appeal decision. (Ord. 2020-10 § 2 (Exh. A § 26), 2020: Ord. 2016-05 § 2 (Exh. A) (part), 2016)
19.70.020 Appeal to city council on hearing examiner Type I and II permit appeal decisions, and Type III hearing examiner decisions.
A. Overview. All decisions of the hearing examiner on Type I and II appeals, and all decisions of the hearing examiner on Type III permits may be appealed to the city council. The city council will make a final decision on such matters in a closed record appeal proceeding in which no new evidence may be submitted.
B. Commencing an Appeal. Hearing examiner decisions on Type I and II appeals and on Type III decisions by the hearing examiner may be appealed as follows:
1. Who May Appeal. The following parties may appeal:
a. The applicant.
b. The owner(s) of property subject to the application.
c. City staff.
d. In the case of Type I or II decision, any party who appealed the department director’s decision to the hearing examiner.
e. In the case of Type III decision, any person who established themselves as a party of record.
2. A person appealing a hearing examiner decision on Type I and II appeals and on Type III decision by the hearing examiner shall submit a completed appeal form which sets forth:
a. Facts demonstrating that the person is adversely affected by the decision.
b. A concise statement identifying each alleged error of fact, law, or procedure, and the manner in which the decision fails to satisfy the applicable decision criteria.
c. The specific relief requested.
d. Any other information reasonably necessary to make a decision on the appeal.
3. The written appeal, and the appeal fee and deposit must be received by the Poulsbo planning department no later than 4:30 p.m. on the fourteenth calendar day following the expiration of the hearing examiner’s reconsideration period.
4. The planning director shall review a submitted appeal and reject an appeal which fails to meet all the requirements of this section.
C. Closed Record Appeal Proceeding.
1. Notice of the closed record appeal proceeding shall be given as follows:
a. A closed record appeal proceeding before the city council shall be scheduled and the notice of the closed record appeal proceeding shall be provided to all parties of record no less than fourteen calendar days prior to the date on which the city council will hold the closed record appeal proceeding.
b. The notice of closed record appeal proceeding shall contain the following:
i. Name of the approved project under appeal.
ii. Name of the appellant.
iii. The street address of the subject property and a description in nonlegal terms sufficient to identify its location.
iv. A brief description of the hearing examiner decision which is being appealed.
v. The date, time and place of the closed record appeal proceeding before the city council.
2. The applicant, owner(s) of the property subject to the application, appellant, the applicable city department director, city attorney, or representatives of these parties may participate in the appeal proceeding.
3. Any person entitled to participate may participate in the appeal proceeding by:
a. Submitting written argument on the appeal to the city clerk no later than the date specified in the city council’s rules of procedure; and/or
b. Marking oral argument on the appeal to the city council at the closed record appeal proceeding. Argument on the appeal is limited to information contained in the record developed before the hearing examiner and must specify the findings or conclusions which are the subject of the appeal, as well as the relief required from city council.
4. The city council shall make an electronic sound recording of each appeal proceeding.
5. Testimony or other evidence and information not presented to the hearing examiner shall not be considered. The decision by the city council shall be made only on the basis of facts presented at the open record hearing before the hearing examiner.
D. City Council Decision on Appeal.
1. The city council may grant the appeal or grant the appeal with modifications if the appellant proves that the decision of hearing examiner is not supported by a preponderance of the evidence or is clearly erroneous. In all other cases, the appeal shall be denied. The city council shall accord substantial weight to the decision of the hearing examiner.
2. The city council may impose conditions as part of the granting of an appeal or granting of an appeal with modification to ensure conformance with the criteria under which the application was made.
3. The city council shall adopt findings and conclusions which support its decision on the appeal.
4. A vote to grant the appeal or grant the appeal with modifications must be by a majority vote of the membership of the city council. A tie vote shall be decided by the vote of the mayor. Any other vote constitutes denial of the appeal.
5. Notice of decision on appeal shall be provided as follows:
The planning director shall mail a notice of appeal decision to all parties of record within seven calendar days of the city council issuance of an appeal decision. The notice of appeal decision shall include at a minimum the following:
i. Name of the approved project under appeal.
ii. The street address of the subject property and a description in nonlegal terms sufficient to identify its location.
iii. A brief description of the appeal decision.
iv. The date of the notice of appeal decision.
E. Final Decision. The city council’s decision on an appeal from the hearing examiner on Type I and II appeals or hearing examiner decision on Type III permits is the city’s final decision. The city council decision may be appealed to the Kitsap County superior court by filing a petition for review, within twenty-one days of the date the decision is issued, as provided in RCW 36.70C.040. No action to obtain judicial review may be commenced unless all rights of administrative appeal provided by this section or state law have been exhausted. (Ord. 2016-05 § 2 (Exh. A) (part), 2016)
19.70.030 Appeal on Type III permit city council decision.
The action of the city council on a Type III application may be appealed as provided under the Land Use Petition Act, Chapter 36.70C RCW. Any such petition for review must be filed with Kitsap County superior court within twenty-one days of the date the decision is issued, as provided in RCW 36.70C.040, and the petition must meet all requirements set forth in said statute. (Ord. 2016-05 § 2 (Exh. A) (part), 2016)
19.70.040 Appeal on Type IV permit city council decision.
The action of the city council on a Type IV proposal may be appealed by filing a petition with the Growth Management Hearings Board pursuant to the requirements set forth in RCW 36.70A.290. The petition must be filed within the sixty-day time period set forth in RCW 36.70A.290(2). (Ord. 2016-05 § 2 (Exh. A) (part), 2016)
19.70.050 Appeal on Type V permit city council decision.
The action of the city council on a Type V proposal may be appealed as provided under the Land Use Petition Act, Chapter 36.70C RCW. Any such petition for review must be filed with Kitsap County superior court within twenty-one days of the date the decision is issued, as provided in RCW 36.70C.040, and the petition must meet all requirements set forth in said statute. (Ord. 2016-05 § 2 (Exh. A) (part), 2016)
19.70.060 Appeal of shoreline master plan amendments and permit decisions.
A. Appeal of shoreline permit decisions shall exhaust all administrative appeals available with the city as set forth in this chapter. Appeals of the city’s final decision on shoreline permit decisions may then be made to the Shoreline Hearings Board, pursuant to the requirements set forth in RCW 90.58.140 and 90.58.180.
B. Appeal of shoreline master program amendments after the Department of Ecology’s written notice of final action shall be made to the Growth Management Hearings Board pursuant to the requirements set forth in RCW 36.70A.290 and 90.58.190(2). (Ord. 2016-05 § 2 (Exh. A) (part), 2016)
19.70.070 Appeal of SEPA.
Appeals of SEPA threshold determinations or adequacy of EIS shall be consolidated. See Sections 16.04.250, 16.04.255 and 19.20.040, Chapter 36.70B RCW and RCW 43.21C.075. (Ord. 2016-05 § 2 (Exh. A) (part), 2016)