4-8-110 APPEALS:

A. SCOPE AND PURPOSE:

This Section provides the basic procedures for processing appeals to the Hearing Examiner and City Council of land use and development-related decisions. Specific requirements are based upon the type/level of appeal and the appeal authority. (Ord. 5154, 9-26-2005; Ord. 5157, 9-26-2005; Ord. 5450, 3-2-2009; Ord. 5676, 12-3-2012)

B. REVIEW AUTHORITY:

RMC 4-8-080G, Land Use Permit Procedures, lists the development permits reviewed by the City and the review authority responsible for open record appeals, closed record appeals and judicial appeals. RMC 4-9-070R, Environmental Review Procedures, Appeals, lists additional actions subject to appeal to the Hearing Examiner. (Ord. 4587, 3-18-1996; Amd. Ord. 4660, 3-17-1997; Ord. 4963, 5-13-2002)

C. GENERAL INFORMATION APPLICABLE TO APPEALS:

The following applies to appeals to the Hearing Examiner and City Council unless otherwise provided elsewhere in the RMC or by state law:

1. Standing: Only the applicant, City or a person who has been made a party of record prior to the issuance of a decision may appeal the decision. In order to appeal, the person shall be aggrieved or affected by the decision pursuant to RCW 36.70C.060.

2. Time to File: Except for final EIS decisions, all appeal periods shall be fourteen (14) calendar days, which shall begin either three (3) calendar days after the date of mailing of the decision to the parties of record via U.S. Postal mail by the City Clerk, or the date the decision is electronically transmitted, posted or emailed to the appellant and parties of record by the City Clerk, if such electronic transmittal method has been previously approved or agreed to by the parties. The appeal period for a final EIS shall be twenty (20) calendar days from the publication of the final decision. (Ord. 5676, 12-3-2012)

3. Required Form for and Content of Appeals: Any appeal shall be filed in writing with the City Clerk. The written notice of appeal shall fully, clearly and thoroughly specify the substantial error(s) in fact or law which exist in the record of the proceedings from which the appellant seeks relief. If the appeal is unclear and does not sufficiently explain the basis for the appeal, an order requiring the appellant amend the appeal within ten (10) calendar days of the date of the order may be issued. If the appeal is not satisfactorily amended within the time allowed, it shall be dismissed. (Ord. 4353, 6-1-1992)

4. Filing of Appeal and Fee: The notice of appeal shall be accompanied by a fee in accordance with the City of Renton fee schedule. (Ord. 3658, 9-13-1982; Ord. 5660, 5-14-2012; Ord. 5688, 5-13-2013)

5. Facsimile Filings: Whenever any application or filing is required under this Chapter, it may be made by facsimile. Any facsimile filing received at the City after five

o’clock (5:00) p.m. on any business day will be deemed to have been received on the following business day. Any facsimile filing received after five o’clock (5:00) p.m. on the last date for filing will be considered an untimely filing. Any party desiring to make a facsimile filing after four o’clock (4:00) p.m. on the last day for the filing must call the City Clerk’s office and indicate that the filing is being made by facsimile and the number to which the facsimile copy is being sent. The filing party must ensure that the facsimile filing is transmitted in adequate time so that it will be completely received by the City before five o’clock (5:00) p.m. in all instances in which filing fees are to accompany the filing of an application, those filing fees must be received by the City before the end of the business day on the last day of the filing period or the filing will be considered incomplete and will be rejected. (Ord. 4353, 6-1-1992)

6. Motions: The Hearing Examiner may dismiss an appeal to the Hearing Examiner, without hearing, when it is determined by the Hearing Examiner to be untimely, without merit on its face, incomplete, or frivolous. Any application to the Hearing Examiner for an order shall be by motion which, unless made during a hearing, shall be in writing, stating the reasons for the request and setting forth the relief or order sought. Written motions shall be received at least five (5) business days in advance of the hearing.

7. Parties: The parties in appeal hearings shall be the City, the applicant, and the appellant(s), if different from the applicant or the City. No other persons shall be allowed to testify unless serving as an expert witness for one of the parties.

8. Notice of Appeal Filed and Public Hearing: If an appeal is filed with the City Clerk, the City Clerk shall notify all parties of record to the decision subject to the appeal. Notice shall be sent within five (5) calendar days via U.S. Postal mail by the City Clerk, or on the date the application of appeal is received if electronic transmittal (email) had been previously approved or agreed to by the parties, and at least ten (10) days prior to the public hearing. A hearing for the appeal shall be set within twenty one (21) days after acceptance of a complete application for appeal.

9. Restrictions on Subsequent Actions: Any later request to interpret, explain, modify, or retract the decision shall not be deemed to be a new administrative determination creating a new appeal period for any new third party to the permit. (Ord. 4168, 8-8-1988)

10. Limit on Number of Appeals: Pursuant to RCW 36.70B.050 and 43.21C.075, the City has consolidated the permit process to allow for only one open record appeal of all permit decisions associated with a single development application.

There shall be no more than one appeal on a procedural determination or environmental determination such as the adequacy of a determination of significance, nonsignificance, or of a final environmental impact statement.

Any appeal of the action of the Hearing Examiner in the case of appeals from environmental determinations shall be joined with an appeal of the substantive determination. (Ord. 3891, 2-25-1985; Ord. 4587, 3-18-1996; Ord. 4660, 3-17-1997; Ord. 5608, 6-6-2011)

11. Exhaustion of Administrative Remedies: No person may seek judicial review of any decision of the City unless that person first exhausts the administrative remedies provided by the City.

D. (Repealed by Ord. 5853, 8-7-17)

E. APPEALS TO HEARING EXAMINER:

1. Format of the Appeal Hearing: The appeal hearing will be of an informal nature, but organized so that testimony and other evidence can be presented efficiently. An appeal hearing shall include at least the following:

a. An introductory outline of the procedure by the Hearing Examiner.

b. Presentation by the appellant, including any witnesses.

c. Cross-examination, if any, of appellant and appellant’s witnesses.

d. Presentation by City staff, summarizing the staff analysis and including any witnesses for the City.

e. Cross-examination, if any, of City staff and staff’s witnesses.

f. Presentation by the project applicant, if different from appellant, including any witnesses.

g. Cross-examination of any of the project applicant and applicant’s witnesses.

h. Rebuttal testimony and closing by City staff.

i. Rebuttal testimony and closing by applicant, if different from appellant.

j. Rebuttal testimony and closing by appellant.

2.  Prehearing Conference: The Hearing Examiner may schedule and hold a prehearing conference when it appears that the orderly and efficient conduct of the hearing will be served, or that settlement of the appeal through such a conference is likely. A prehearing conference may, among other things, consider:

a. Simplification of the issues.

b. The existence of undisputed facts to which the parties are willing to stipulate.

c. The identification of witnesses and documentary or other evidence to be presented at hearing.

d. Any reasonable needs any party may have for discovering the details of the case the other party intends to present.

e. The imposition of reasonable time limits.

Based upon the discussions and agreements at such a conference, the Hearing Examiner may enter a prehearing order, which shall govern subsequent proceedings. If the case is settled at such a conference, the Hearing Examiner shall enter an order reciting the terms of the settlement and dismissing the appeal.

3. Content of the Record: The record of an appeal hearing conducted by the Hearing Examiner shall include at least the following:

a. The notice of appeal and any amendments.

b. The staff analysis responding to the appeal and all accompanying documents, including the papers that comprise the record of the decision subject to appeal.

c. Additional documentary or physical evidence received and considered, including all exhibits filed.

d. The Hearing Examiner's decision.

e. Electronic recordings of the proceedings and/or an accurate written transcription thereof.

4. Hearing Examiner Decision:

a. Substantial Weight: The procedural determination by the Environmental Review Committee or City staff shall carry substantial weight in any appeal proceeding. The Hearing Examiner shall give substantial weight to any discretionary decision of the City rendered pursuant to this Chapter/Title.

b. Hearing Examiner Decision Options and Decision Criteria: The Hearing Examiner may affirm the decision or remand the case for further proceedings, or it may reverse the decision if the substantial rights of the applicant may have been prejudiced because the decision is:

i. In violation of constitutional provisions; or

ii. In excess of the authority or jurisdiction of the agency; or

iii. Made upon unlawful procedure; or

iv. Affected by other error of law; or

v. Clearly erroneous in view of the entire record as submitted; or

vi. Arbitrary or capricious.

c. Time for Hearing Examiner’s Decision: Each final decision of a Hearing Examiner, unless a longer period is mutually agreed to in writing by the applicant and the Hearing Examiner, shall be rendered within ten (10) business days following conclusion of all testimony and hearings.

d. Collateral Estoppel (Issue Preclusion): The Hearing Examiner may deny a party’s request to relitigate one or more issues or determinative facts decided or ruled upon in a previous litigation if the party against whom the collateral estoppel doctrine is to be applied had a full and fair opportunity to litigate the issue in the prior proceeding. The party requesting application of the collateral estoppel doctrine must establish by a preponderance of the evidence that (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding; (2) the earlier proceeding ended in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding; and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. The Hearing Examiner may apply collateral estoppel, sua sponte.

e. Res Judicata (Claim Preclusion): The Hearing Examiner may apply a prior ruling or summarily decide an action or appeal if the current, pending or proposed action or appeal is substantially identical to a prior action or appeal in four (4) respects: (1) the same persons and parties or a person or party in privity with the prior person or party; (2) causes of action that substantially involve the same rights or interest, the same evidence, an infringement of substantially the same rights or interests, or the two (2) actions or appeals arise out of substantially the same facts; (3) subject matter is identical or substantially the same; and (4) at least one or more of the parties are bound by the prior judgment or ruling. The party requesting application of the res judicata doctrine does not have to prove each factor, but must prove by a preponderance of the evidence that application of res judicata is appropriate. The Hearing Examiner may apply res judicata, sua sponte.

f. Full and Fair Opportunity: Failure to seek or obtain evidence or information that existed at the time of the prior proceeding does not establish that a party did not have a full or fair opportunity to litigate an issue or change the subject matter of an action or appeal. (Ord. 3454, 7-28-1980; Ord. 3891, 2-25-1985; Ord. 3992, 5-19-1986; Ord. 4168, 8-8-1988; Ord. 4346, 3-9-1992; Ord. 4351, 5-4-1992; Ord. 4401, 5-3-1993; Ord. 4521, 6-5-1995; Ord. 4551, 9-18-1995; Amd. Ord. 4827, 1-24-2000; Ord. 4899, 3-19-2001; Ord. 5153, 9-26-2005; Ord. 5558, 10-25-2010; Ord. 5675, 12-3-2012; Ord. 5706, 3-24-2014)

F. APPEALS TO CITY COUNCIL:

1. Standing and Parties to the Appeal: See subsection C of this Section.

2. Time to File: See subsection C of this Section.

3. Notice of Appeal: See subsection C of this Section.

4. Council Review Procedures: No public hearing shall be held by the City Council. No new or additional evidence or testimony shall be accepted by the City Council. The cost of transcription of the hearing record shall be borne by the applicant. If a transcript is made, the applicant is required to provide a copy to the City Clerk and the Renton City Attorney at no cost. It shall be presumed that the record before the City Council is identical to the hearing record before the Hearing Examiner. (Ord. 5675, 12-3-2012)

5. Burden: The burden of proof shall rest with the appellant.

6. Council Evaluation Criteria: The consideration by the City Council shall be based solely upon the record, the Hearing Examiner’s report, the notice of appeal and additional arguments based on the record by parties.

7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner and after examination of the record, the Council determines that a substantial error in fact or law exists in the record, it may modify or reverse the decision of the Hearing Examiner accordingly. (Ord. 5675, 12-3-2012)

8. Alternative City Council Procedure: As an alternative to the provisions of subsections F5 through 7 of this Section, the City Council shall affirm without review a decision of the Hearing Examiner if one or more of the following circumstances exist:

a. More than one timely notice of appeal was filed. For the purposes of this subsection, an amended or supplemental notice of appeal timely filed by the same appellant shall not be deemed a separate notice of appeal;

b. The project at issue in the Hearing Examiner’s decision has more than fifteen (15) documented parties of record;

c. The project at issue in the Hearing Examiner’s decision was issued a Determination of Significance (DS) under the State Environmental Policy Act;

d. A timely notice of appeal asserts that the jurisdiction of one or more agencies other than the City has bearing on the outcome of the appeal; or

e. A timely notice of appeal asserts that one or more treaty rights have bearing on the outcome of the appeal.

9. Decision Documentation: The decision of the City Council shall be in writing and shall specify any modified or amended findings and conclusions other than those set forth in the report of the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record.

10. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Hearing Examiner shall be final and conclusive, unless timely appealed. (Ord. 3658, 9-13-1982; Ord. 4389, 1-25-1993; Ord. 4660, 3-17-1997; Ord. 5558, 10-25-2010; Ord. 5853, 8-7-17; Ord. 5902, 12-10-2018)

G. RESERVED

H. (Repealed by Ord. 5853, 8-7-17)

I. (Repealed by Ord. 5853, 8-7-17)

J. (Repealed by Ord. 5853, 8-7-17)