APPENDIX C
CITY COUNCIL APPEAL HEARING PROCEDURES

A. The council shall not consider any new facts or evidence outside the verbatim transcript and certified record submitted by the hearing examiner, except for:

1. Grounds for disqualification of the hearing examiner, when such grounds were unknown by the appellant at the time the record was created; or

2. Matters that were improperly excluded from the record after being offered by a party to the hearing before the hearing examiner; or

3. Matters that were outside the jurisdiction of the hearing examiner.

The council shall allow the record to be supplemented if the offering party demonstrates grounds for supplementation as set forth in subsections (A)(1), (2) or (3) of this appendix.

a. Any party requesting that the record be supplemented shall submit such request, along with the specific evidence to be offered to the council, within 14 calendar days of the date the appeal hearing was scheduled.

b. The council may require or permit the correction of ministerial errors or inadvertent omissions in the preparation of the record.

c. The council will allow the submittal of memoranda by the appellant, or a party of record in opposition to the appeal, subject to the following requirements:

i. The appellant may file a memorandum in support of the appeal. The memorandum must be filed no later than 12:00 noon on the third Friday preceding the date set by the council for consideration of the appeal.

ii. Any party of record in opposition to the appeal may submit a reply memorandum in opposition to the appeal. Any reply memorandum must be filed no later than 12:00 noon on the second Friday preceding the date set for consideration of the appeal.

iii. All memoranda shall be limited to stating why the record or applicable laws or regulations do or do not support the decision, and shall not contain any new facts or evidence, or discuss matters outside the record, except as permitted above.

iv. The offering party shall promptly submit a copy of the memorandum or request to supplement the record to the city attorney, and to opposing parties as practicable.

B. The council will allow oral argument by the appellant, or a party of record in opposition to the appeal, subject to the following requirements:

1. It is expected that all parties can reasonably be aligned as either in support of the appeal or opposed to the appeal. Accordingly, all parties who desire to make oral argument shall communicate with other parties aligned on the same side of the appeal and attempt to reach agreement in selecting a representative, or otherwise arrange for the allocation of time allowed under these rules to those in support of or those opposed to the appeal.

2. Oral argument shall be presented first by the appellant, followed by those parties of record in opposition to the appeal, and then rebuttal and surrebuttal.

3. Oral argument shall be limited to stating why the record or applicable laws or regulations do not support the decision, and shall not contain any new facts or evidence unless allowed by subsection A of this appendix.

4. Oral argument shall be limited to 20 minutes total for the appellant, and 20 minutes total for those parties in opposition to the appeal, regardless of how many parties make up each side.

5. The respective times allowed for oral argument above include the combined time used by a side for opening argument, rebuttal and surrebuttal. The time taken to respond to questions from the council is not included in the time allowed for argument.

C. The council may affirm or reverse the hearing examiner’s decision, or remand it for further proceedings. The hearing examiner’s decision will be presumed to be correct and supported by the record and law. A tie vote on any motion shall have the effect of affirming the hearing examiner’s decision.

D. The council may reverse the hearing examiner’s decision, or remand it for further proceedings, if the appellant has carried the burden of establishing that one or more of the following standards is met:

1. The hearing examiner engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

2. The decision is an erroneous interpretation of the law, after allowing for such deference as is due to construction of law by a local jurisdiction with expertise;

3. The decision is not supported by evidence that is substantial when viewed in light of the entire record;

4. The decision is a clearly erroneous application of the law to the facts;

5. The decision is outside the authority of the hearing examiner.

E. The council may also remand the decision to the hearing examiner if the appellant offers newly discovered evidence that would reasonably have affected the decision had it been admitted in the proceedings before the hearing examiner. “Newly discovered evidence” is evidence that with reasonable diligence could not have been discovered and produced at the time the proceedings before the hearing examiner were conducted.

F. The council shall adopt written findings and conclusion in support of its decision. If the council concludes that a finding of fact by the hearing examiner, upon which the decision is based, is not supported by substantial evidence, the council may modify the finding or substitute its own finding, citing substantial evidence in the record that supports the modified or substitute finding. In the event of a tie vote on the proposed findings of fact, that vote shall be considered a final action, the findings shall reflect the same, and the decision of the hearing examiner shall be affirmed.

G. The council’s decision shall include a notice stating that the decision can be appealed within 21 calendar days from the date the decision was issued, by filing a land use petition with the superior court as provided in Chapter 36.70C RCW and meeting the other provisions of such chapter, and that the decision shall act as official notice under RCW 43.21C.075.

H. The notice included in the council’s decision shall also state that affected property owners may request the Spokane County assessor for a change in valuation for property tax purposes notwithstanding any program of revaluation, pursuant to RCW 36.70B.130.

I. The city clerk shall, within five business days from the date of the council’s decision on the appeal, mail a copy of the council’s decision to the appellant, the applicant (if different than the appellant), any other party who testified or submitted a memorandum at the closed record appeal hearing before the council, any person who requested notice of the decision, and any person who submitted substantive comments on the application. The city clerk shall also provide notice of the decision to the county assessor.

J. Where the hearing examiner’s decision recommends approval of the proposal and no appeal has been filed within the time period set forth above, the city manager or designee shall modify the official zoning map of the City according to the hearing examiner’s decision. The modification of the zoning map completes the hearing examiner’s decision and shall be considered the final legislative action of the city council. Such final action, for zoning purposes, is considered an official control of the City by exercise of its zoning and planning authority pursuant to Washington law. (Ord. 08-022, 2008).