16.39.170 Appeals.
(1) Appeals. The City establishes the following administrative procedures for appeals filed under RCW 43.21C.075 and WAC 197-11-680, and for certain appeals filed under PCC 16.50.040, Chapter 16.55 PCC, and PCC 16.60.050.
(a) Time Requirement.
(i) Any agency or person may appeal the City’s procedural compliance with Chapter 197-11 WAC for issuance of the following:
1. A final DNS or MDNS: An appeal of a DNS or MDNS must be filed with the City Clerk within ten calendar days of the date the DNS or MDNS is issued.
2. A DS: An appeal of the DS appeal must be filed with the City Clerk within ten calendar days of the date the DS is issued.
3. An EIS: An appeal of a FEIS must be filed with the City Clerk within ten calendar days of the date the FEIS is issued.
(ii) An appeal of a decision of the Director of Community Development pursuant to PCC 16.50.040 must be filed with the City Clerk within ten calendar days of the date said decision is issued in writing.
(iii) An appeal of a decision of the SMP Administrator pursuant to Chapter 16.55 PCC must be filed with the City Clerk within 21 calendar days of the date said decision is issued in writing.
(iv) An appeal of a decision of the Historic Preservation Commission pursuant to PCC 16.60.050 must be filed with the City Clerk within ten calendar days of the date said decision is issued in writing.
(v) If the last day for filing an appeal falls on a Saturday, Sunday, or a legal holiday, then the last day for filing an appeal shall be the next working day.
(b) Filing Fee. Each appeal filed under this subsection (1) shall be accompanied by a filing fee in such sum as the City Council may set by resolution.
(c) Hearing Examiner. Appeals filed under this subsection (1) shall be heard by a Hearing Examiner appointed by resolution of the City Council.
(d) Content of the Appeal. Appeals shall contain:
(i) The name and mailing address of the appellant and the name and address of their representative, if any;
(ii) The appellant’s legal residence or principal place of business;
(iii) A copy of the decision which is being appealed;
(iv) The grounds upon which the appellant relies;
(v) A concise statement of the factual and legal reasons for appeal;
(vi) The specific nature and intent of the relief sought; and
(vii) A statement that the appellant has read the appeal and believes the contents to be true, followed by their signature and the signature of their representative, if any. If the appealing party is unavailable to sign the appeal, it may be signed by their representative.
(e) Dismissal of Appeal. The Hearing Examiner may summarily dismiss an appeal without hearing when such appeal is determined by the Hearing Examiner to be without merit on its face, frivolous, or brought merely to secure a delay, or that the appellant lacks legal standing to appeal.
(f) Effect of Appeal. The filing of an appeal of a threshold determination (DNS, MDNS, or DS), adequacy of a final environmental impact statement (FEIS), or decision pursuant to PCC 16.50.040, Chapter 16.55 PCC, or PCC 16.60.050 shall stay the effect of such determination, FEIS, or decision and no major action in regard to a proposal may be taken during the pendency of an appeal and until the appeal is finally disposed of by the Hearing Examiner. A decision to uphold the appeal and reverse the original determination shall further stay any decision, proceedings, or actions in regard to the proposal.
(g) Withdrawal of Appeal. An appeal may be withdrawn, only by the appellant, by written request filed with the City Clerk which shall inform the Hearing Examiner and the party who made the original determination. If the withdrawal is requested within thirty (30) days of filing of the appeal, the filing fee shall be refunded. The Hearing Examiner shall dismiss in writing any withdrawn appeal.
(h) Response to Appeal. The party who made the original determination shall respond in writing to the appellant’s objections as set forth in the appeal. Such response and pertinent information shall be transmitted to the Hearing Examiner and appellant no later than seven calendar days prior to the hearing. The response shall contain, when applicable, a description of the property and the nature of the proposed action. A response shall be made to each specific and explicit objection set forth in the appeal, but no response need be made to vague or ambiguous allegations. The response shall be limited to facts available when the original determination was made. In the case of a response to an appeal of the adequacy of a final environmental impact statement, the response shall be limited to facts available when the final environmental impact statement is issued. No additional environmental studies or other information shall be allowed or included in the record of the decision. The record of decision shall consist of the following:
(i) all information received, reviewed, or relied upon by the party who made the original determination;
(ii) the written appeal; and
(iii) the written response of the party who made the original determination.
(2) Hearings.
(a) Scheduling of Hearings.
(i) The hearing of an appeal of a determination of nonsignificance, adequacy of an environmental impact statement, or decision pursuant to PCC 16.50.040 or Chapter 16.55 PCC on a proposed land use action which requires a hearing shall be held concurrently with the hearing on the application request.
(ii) The hearing of an appeal of a determination of nonsignificance, adequacy of the final environmental impact statement, or decision pursuant to PCC 16.50.040 or Chapter 16.55 PCC for a proposal which requires a land use decision made by staff shall be held within 90 days of receipt of a valid appeal. If the land use decision is appealed in combination with either or both the SEPA determination and/or the decision related to Chapter 16.50 or 16.55 PCC, one consolidated hearing shall be held on all decisions being appealed.
(iii) The hearing of any appeals authorized in PCC 16.39.170 and not cited in subsection (2)(a)(i) or (2)(a)(ii) of this section shall be held within 90 days of receipt of a valid appeal.
(b) Notice. Appeals filed under subsection (1) of this section shall be heard by the Hearing Examiner at a public hearing, notice of which shall be published once in the official newspaper of the City and mailed to the appellant and delivered to the party who made the original determination at least ten calendar days before the public hearing.
(c) Evidence – Testimony – Record – Substantial Weight. At the hearing, the Hearing Examiner shall consider all relevant evidence included in the record of the decision. The Hearing Examiner may take testimony under oath provided such testimony shall relate only to the evidence contained in the record of the decision. No new evidence shall be accepted. Upon completion of the hearing, the Hearing Examiner shall enter findings of fact, conclusions of law, and a decision, giving substantial weight to the decision of the party who made the original determination. A tape recorded or written transcript shall be made of the hearing.
(d) Standards of Review.
(i) For appeals filed under Chapter 16.39 PCC, the Hearing Examiner may affirm the decision of the responsible official or the adequacy of the environmental impact statement, or remand the case for further information; or the Hearing Examiner may reverse the decision if the findings, inferences, conclusions, or decisions being reviewed are:
1. In violation of constitutional provisions as applied; or
2. The decision is outside the statutory authority or jurisdiction of the City; or
3. The responsible official has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure; or
4. In regard to challenges to the appropriateness of the issuance of a DNS clearly erroneous in view of the public policy of the Act (SEPA); or
5. In regard to challenges to the adequacy of an EIS shown to be inadequate employing the “rule of reason.”
(ii) For appeals filed under Chapter 16.50 or 16.55 PCC, the Hearing Examiner may affirm the decision of the Director of Community Development or SMP Administrator, or remand the case for further information; or the Hearing Examiner may reverse the decision if the findings, inferences, conclusions, or decisions being reviewed are:
1. In violation of constitutional provisions as applied; or
2. The decision is outside the statutory authority or jurisdiction of the City; or
3. The Director of Community Development or SMP Administrator has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure.
(iii) For appeals filed under PCC 16.60.050, the Hearing Examiner may affirm the decision of the Historic Preservation Commission, or remand the case for further information; or the Hearing Examiner may reverse the decision if the findings, inferences, conclusions, or decisions being reviewed are:
1. In violation of constitutional provisions as applied; or
2. The decision is outside the statutory authority or jurisdiction of the City; or
3. The Historic Preservation Commission has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure.
(e) Evidence – Burden of Proof. In each particular proceeding, the appellant shall have the burden of proof, and the decision of the party who made the original determination shall be presumed prima facie correct and shall be afforded substantial weight. Appeals shall be limited to the record of the decision of the party who made the original determination.
(f) Continuation of Hearing.
(i) Cause. A hearing may be continued by the Hearing Examiner for the purpose of obtaining specific pertinent information relating to the project which was unavailable at the time of the original hearing.
(ii) Notification. The Hearing Examiner shall announce the time and place of a continued hearing at the time of the initial hearing or by written notice to all parties of record.
(g) Hearing Examiner’s Decision.
(i) When Hearing Held. The Hearing Examiner shall render a written decision on the appeal within 30 calendar days of the conclusion of the hearing, which shall be transmitted to all parties of record. However, upon a finding of the existence of unusual circumstances, the Examiner may extend the 30 calendar day time period. On remand for appeals filed under Chapter 16.39 PCC, the Hearing Examiner shall specify the information necessary to make an appropriate threshold determination, or request information specifically lacking in an environmental impact statement. On remand for appeals filed under Chapter 16.50 PCC, Chapter 16.55 PCC, or PCC 16.60.050, the Hearing Examiner shall specify the information necessary to make an appropriate decision under the provisions of Chapter 16.50 PCC, Chapter 16.55 PCC, or PCC 16.60.050, respectively. Remand proceedings shall be limited in accordance with the directives of the Hearing Examiner to pertinent issues and the effect of such additional information on the project.
(ii) Optional Procedure – No Public Hearing. The Hearing Examiner may render a decision on an appeal in writing without holding a public hearing when both parties agree that no issues of fact are to be decided. When issues of law are to be determined and opposing parties agree, they may request the Hearing Examiner to render a decision based upon written briefs. The Hearing Examiner shall render a written decision within 30 calendar days of receipt of all briefs; provided, however, that upon a finding of the existence of unusual circumstances, the Hearing Examiner may extend said 30 calendar day time period.
(iii) Decision Final – Appeal to Superior Court.
1. The decision of the Hearing Examiner on appeals filed under Chapter 16.39 PCC, Chapter 16.50 PCC, Chapter 16.55 PCC, or PCC 16.60.050 shall be considered a final decision, appealable only to the Superior Court of the state of Washington for Whitman County. For appeals initially filed under Chapter 16.39 PCC, appeals to the Superior Court shall be taken in accordance with procedures and time frames set forth in RCW 43.21C.080. For appeals initially filed under Chapter 16.50 PCC, Chapter 16.55 PCC, or PCC 16.60.050, appeals to the Superior Court shall be taken in accordance with procedures and time frames set forth in Chapter 36.70C RCW. The decision of the Hearing Examiner on the underlying governmental action shall be considered to be either a recommendation to the City Council or a final decision appealable to the Superior Court of the State of Washington for Whitman County depending on state statute or city ordinance.
2. For appeals filed under Chapter 16.39 PCC, the City shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. If there is no time period for appealing the underlying governmental action and a notice of action under RCW 43.21C.080 is used, appeals shall be commenced within the time period specified by RCW 43.21C.080.
(iv) An appeal of a decision of the Director of Community Development pursuant to PCC 16.50.040 must be filed with the City Clerk within ten calendar days of the date said decision is issued in writing. (Ord. 21-15 §4, 2021; Ord. 16-4 §1, 2016; Ord. 07-28 §3, 2007; Ord. 98-2 §1, 1998; Ord. 96-6 §1, 1996; Ord. 84-25 §21, 1984).