Chapter 19.36
CLOSED RECORD DECISIONS AND APPEALS

Sections:

19.36.010    Appellate body for appeals.

19.36.020    Consolidated appeals.

19.36.030    Appeals – Filing.

19.36.040    Appeals – Procedure.

19.36.050    Judicial appeals.

19.36.060    Actions not appealable.

19.36.010 Appellate body for appeals.

A. Appeals to the Hearing Examiner. The following appeals shall be made to the hearing examiner as provided in Chapter 2.26 SMC:

1. Appeal of final Level I and II decisions;

2. Final director decisions made pursuant to this title;

3. Interpretations made by the director pursuant to this title other than determinations listed as not appealable.

B. Appeals to Courts beyond City Jurisdiction. The following appeals shall be made to the venue of competent jurisdiction beyond the city of Sultan:

1. Appeal of final Level III decisions of the hearing examiner;

2. Final Level IV decisions of the city council. (Ord. 1284-17 § 2 (Exh. B); Ord. 1144-12 § 2 (Exh. A))

19.36.020 Consolidated appeals.

A. All appeals on a particular application shall be handled in a consolidated appeal.

B. Subsection (A) of this section notwithstanding, appeals of environmental determinations under SEPA shall proceed as provided in SMC 17.04.240.

C. The following appeals of SEPA procedural and substantive determinations need not be consolidated with a hearing or appeal on the underlying action on a proposal:

1. An appeal of a determination of significance;

2. An appeal of a procedural determination made by the responsible official on a nonproject action. (Ord. 1284-17 § 2 (Exh. B); Ord. 1144-12 § 2 (Exh. A))

19.36.030 Appeals – Filing.

Administrative appeal of the approving authority’s decision on a project permit application shall be governed by the following:

A. Standing. Only parties with standing may appeal a decision. Standing is limited to the following persons:

1. The applicant and/or the owner of property to which the decision is directed;

2. Another person aggrieved or adversely affected by the decision, or who would be aggrieved or adversely affected by a reversal or modification of the land use decision. A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:

a. The decision has prejudiced or is likely to prejudice that person;

b. That person’s asserted interests are among those that the approving authority was required to consider when it made the decision;

c. An administrative appeal decision in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the decision of the approving authority; and

d. The person has participated orally or in writing before the approving authority regarding the matter upon which review is requested.

B. Time to File. An appeal of a decision that is appealable to the city must be filed within the following time periods and conditions:

1. Fourteen calendar days after service or publication of the notice of decision under SMC 19.34.120.

2. Appeals must be filed with the development services director before 5:00 p.m. on the last business day of the appeal period.

C. Computation of Time.

1. For the purposes of computing the time for filing an appeal, the day the decision is rendered shall not be included.

2. The last day of the appeal period shall be included unless it is a Saturday, Sunday, a day designated by RCW 1.16.050 or by the city’s ordinances as a legal holiday, then it also is excluded and the filing must be completed on the next business day.

D. Content of Appeal. Appeals shall be in writing, be accompanied by an appeal fee as required in the city of Sultan annual fee schedule and shall contain the following information:

1. Appellant’s name, address and phone number;

2. Appellant’s statement describing his or her standing to appeal;

3. Identification of the application which is the subject of the appeal, including the project file number;

4. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based;

5. Appellant’s statement that explains why the action is not consistent with the Sultan comprehensive plan, this code, or other provisions of law;

6. The relief sought, including the specific nature and extent, including an explanation of its consistency with the comprehensive plan and this code; and

7. A sworn statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.

E. An answer need not be filed to an appeal. An appellant shall be confined to matters raised in the written appeal filed in accordance with subsection (D) of this section. A written appeal may be amended only upon the approval of the appellate body. Requests to amend an appeal must be filed with the director and served by the appellant upon all parties entitled to notice of appeal at least seven calendar days prior to the appeal hearing. Requests to amend shall not be freely granted.

F. Effect of Appeal. The timely filing of an appeal shall stay the processing of a proposal and the effective date of the final decision until such time as the administrative appeal process is complete as provided in this chapter or withdrawn.

G. Notice of Appeal. The administrator shall provide notice of the appeal to:

1. The applicant, or the person or entity designated by the applicant to receive notice;

2. Parties that have filed a special notification request in accordance with SMC 19.34.110, prior to rendering of the decision;

3. Agencies with jurisdiction; and

4. Identifiable parties who have provided addresses and submitted substantive written comments on the proposal prior to rendering of the decision.

H. The director shall document the date and manner by which any notice is given. (Ord. 1284-17 § 2 (Exh. B); Ord. 1144-12 § 2 (Exh. A))

19.36.040 Appeals – Procedure.

A. The appeal hearing shall be based on the record and no new evidence may be presented except as provided herein.

1. For director interpretations and Level I decisions and SEPA determinations for which there was no comment period, the record for appellate review may be supplemented by evidence of material facts that were not made part of the original record.

2. For Level II decisions and SEPA determinations for which there was a comment period, the record may be supplemented by additional evidence only if the additional evidence relates to:

a. Grounds for disqualification of the approving authority that made the decision, when such grounds were unknown by the petitioner at the time the record was created;

b. Matters that were improperly excluded from the record after being offered by a party to the approving authority; or

c. Matters that were outside the jurisdiction of the approving authority that made the decision.

3. If the appellate body allows the record to be supplemented, it shall require the parties to disclose before the appeal hearing the specific evidence they intend to offer. If any party, or anyone acting on behalf of any party, requests records under Chapter 42.56 RCW relating to the matters at issue, a copy of the request and response thereto shall simultaneously be given to all other parties and the appellate body.

4. The appellate body may require or permit corrections of ministerial errors or inadvertent omissions from the record of the approving authority.

B. The scope of an appeal shall be limited to issues timely raised by the appellant before the approving authority. An appellant shall be deemed to have waived any objection that was not raised at a time and in a manner to allow the approving authority to make correction prior to issuance of the decision which is the subject of the appeal.

C. The appellate body shall review the record and may grant relief only if the appellant has carried the burden of establishing that one of the standards set forth in subsections (C)(1) through (6) of this section applies:

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

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

3. The decision of the approving authority is not supported by substantial evidence when viewed in light of the whole record before the appellate body;

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

5. The decision of the approving authority is outside the authority or jurisdiction of the body or officer making the decision;

6. The decision of the approving authority violates the constitutional rights of the party seeking relief.

D. The appellant, respondent and city staff shall be permitted to address the appellate body and present argument upon the appeal. Such argument may not be used to introduce new evidence into the record except as provided in subsection (A) of this section.

E. Copies of the administrative appeal decision shall be sent to the appellant and to other parties of record as soon as practicable following the hearing at which the appeal is considered and, if applicable, within the time required by state law. (Ord. 1284-17 § 2 (Exh. B); Ord. 1144-12 § 2 (Exh. A))

19.36.050 Judicial appeals.

In no event shall judicial review be available until after action by the city has become final and after exhaustion of every other available appeal and remedy. (Ord. 1284-17 § 2 (Exh. B); Ord. 1144-12 § 2 (Exh. A))

19.36.060 Actions not appealable.

A. Generally. Only final actions or decisions of an approving authority may be appealed under this chapter.

B. Recommendations. Recommendations are not appealable except as part of the final decision or action being appealed.

C. Procedural Rulings. Interim procedural or other rulings during or as part of a review or decision making process by a reviewing or other officer under this code are not appealable except as part of the final decision or action. (Ord. 1284-17 § 2 (Exh. B); Ord. 1144-12 § 2 (Exh. A))