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HomeMy WebLinkAboutOrdinance 05-021 Amends SVMC 10.35 H.E. Appeals & Decisions Procedures • CiTY OF SPOKANE VALLEY SPOKANE COUNTY WASHINGTON ORDINANCE NO. 05-021 AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY, WASHINGTON, AMENDING PORTIONS OF SPOKANE VALLEY MUNICIPAL CODE 10.35.150 PERTAINING TO PROCEDURAL GUIDELINES FOR APPEALS FROM DECiSi.ONS OF THE:HEARING EXAMINER TO TIIE CITY COUNCIL. WHEREAS, the City adopted Spokane Valley Municipal Code 10.35 through Ordinance 03-057 to provide authority and direction to the City Hearing Examiner; and WHEREAS, in adopting SVMC 10.35.150, the City Council stated that the City Council shall later adopt procedures directing procedural requirements for any appeal of a Hearing Examiner decision to the City Council; and WHEREAS, the City Council now desires to adopt such procedures for appeals of the Hearing Examiner to the City Council. NOW THEREFORE, the City Council of the City of Spokane Valley, Washington, ordains as follows: • Section 1. Intent. It is the intent of the City Council for the City of Spokane Valley to provide procedural guidance to entities that desire to appeal land use decisions issued by the Hearing Examiner. Section 2. Amending portions of SVMC 10.35.150 relating to appeals from decisions of the City Hearing Examiner. Title 10, Chapter 35, Subsection 150 of the City of Spokane Valley Municipal Code is amended as follows: 10.35.150 Appeals A. Any person with standing may appeal a written decision of the Hearing Examiner to the Council as provided in Subsection 10.35.110.8. • B. Standing to appeal a decision of the Hearing Examiner under these rules is limited to: I.The applicant and the owner of the property to whom the decision is directed;and 2. Any other person aggrieved or adversely affected by the decision, or who would be aggrieved or adversely affected by a reversal or modification of the decision. A person is aggrieved or adversely affected within the meaning of these rules 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 Hearing Examiner was required to consider when the decision was made; c. A reversal or modification of the 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; and Ordinance 05-021 Amending SVMC 10.35.150,hearing appeals procedures Page 1 of 6 • d. The appellant has exhausted his or her administrative remedies by being a party of record to the decision below. A "party of record" means a person who appeared at the public hearing held by the Examiner, or who submitted substantive written comments on the matter before or at the hearing held by the Examiner. C. Appeals of the Hearing Examiner's decision to the City Council must be: 1. Filed with the City Clerk within fourteen (14) calendar days from the date the final decision of the Examiner was issued; 2. Accompanied by the appeal fee established by Council resolution; 3. Accompanied by the separate transcript/record deposit fee established by Council resolution; and 4. Submitted on a form obtained from the City Clerk. D. The appeal form submitted by the appellant shall contain the following information: 1.The file number and a copy of the decision; 2. The name and mailing address of the appellant, the name and mailing address of the appellant's attorney, if any, and the name of the applicant if different than the appellant; 3. Facts demonstrating that the appellant has standing to appeal; 4. A separate and concise statement of each error alleged to have been committed; 5. A separate and concise statement of facts upon which the appellant relies to sustain the st atement of error; and 6. A request for relief, specifying the type and extent of relief requested. E. Upon receipt of the written appeal form and payment of the appeal fee, the City Clerk shall forward a copy of the appeal and the transcript/record deposit fee to the Hearing Examiner. F. The appeal shall be dismissed by the Council if: 1. It is filed by a person without standing to appeal; 2. The Council does not have jurisdiction to hear the appeal; 3. It is not timely filed; 4. The appeal fee or the transcript/record deposit fee was not timely.paid;or 5. The appellant failed to timely pay the costs incurred by the Examiner in preparing the verbatim transcript and certified record, after being billed for such costs; or 6. It is not filed in accordance with the procedures set forth in these rules. Ordinance 05-021 Amending SVMC 10.35.150,hearing appeals procedures Page 2 of 6 All motions to dismiss a defective appeal shall be filed within fifteen (15) calendar days from the filing date of the appeal, except for a dismissal under item (f)(5), above. The Council may dismiss an appeal under item (F)(5), above, upon receiving written notification from the Examiner that the appellant failed to timely pay the costs incurred by the Examiner for the appeal after being billed for such costs. G. The Hearing Examiner shall have thirty(30)calendar days from the filing date of the appeal to prepare a verbatim transcript of the hearing before the Examiner and a certified copy of the documents in the record, and to bill the appellant for the costs incurred. The Council may authorize a longer time, at the Examiner's request, for unusually large records or transcripts. 1. If the Hearing Examiner, the appellant and the applicant (if different than the appellant), agree, or upon order of the Council, the verbatim transcript and/or record may be shortened or summarized to avoid reproduction or transcription of portions of the record that are duplicative or irrelevant:to the issues raised by the appeal. 2. Upon completion of the transcript and record, the Examiner shall bill the appellant for all costs incurred by the Examiner in preparing the verbatim transcript and certified record. The appellant shall pay the balance above and beyond the deposit fee within seven (7) calendar days from the date the bill was mailed or provided to the appellant. 3. Upon the appellant's payment of the bill for the cost of the transcript and record, the Examiner shall by the next business day deliver a copy of the appeal, verbatim transcript and certified record to the City Clerk. The Examiner shall also provide to the Clerk a list of the names and mailing addresses of the applicant and the parties of record to the hearing before the Examiner. 4. The City Clerk will furnish copies of the transcript and record to the applicant, if different than the appellant, all members of the Council, and the City Attorney. The Hearing Examiner, upon request, will furnish copies of the transcript and record to the appellant, the applicant(if the same as the appellant)and other entities that may request one at the cost of reproduction. 5. If the Council dismisses the appeal on procedural grounds, the appellant shall reimburse the Examiner for the balance of the costs incurred by the Examiner in preparing the transcript and record as of the date of the dismissal, if any. H. The Council, at its next regular meeting following receipt of the transcript and record from the Examiner, will schedule a closed record hearing on the appeal. 1. The Council shall schedule the appeal hearing no sooner than thirty(30) calendar days from the date the transcript and record were received from the Hearing Examiner. The Council may approve a later hearing date upon agreement of the applicant. 2. The appellant, or a party of record in opposition to the appeal, may provide input on the hearing date either in person at the meeting, or by submitting a letter to the City Clerk prior to the meeting. 3. The City Clerk shall mail notice of the time, place and date of the hearing to the appellant, the applicant (if different than the appellant), and all parties of record to the hearing before the Examiner within five(5)calendar days from the date the appeal hearing was scheduled. I. The Council shall not consider any new facts or evidence outside the verbatim transcript and certified record submitted by the Examiner, except for: Ordinance 05-021 Amending SVMC 10.35.150,hearing appeals procedures Page 3 of 6 1. Grounds for disqualification of the Hearing Examiner, when such grounds were unknown by the appellant at the time the record was created; 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 items(1), (2)and (3), immediately above. 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 fourteen (14)calendar days of the date the appeal hearing was scheduled. h. 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 (3`d) 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 (2"d)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 does or does 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. J. 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. Ordinance 05-021 Amending SVMC 10.35.150,hearing appeals procedures Page 4 of 6 I � 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 ".I" • 4, Oral argument shall be limited to twenty (20) minutes total for the appellant, and twenty (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. The Council may affirm or reverse the Examiner's decision, or remand it For further proceedings. The Examiner's decision will be presumed to be correct and supported by the record and ]acv. L. 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: I. The 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 the construction of a 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; or • 5- The decision is outside the authority' of the.Examiner. M. The Council may also remand the decision to the Examiner if the appellant offers newly discovered evidence that would reasonably have affected the decision, had it been admitted in the proceedings before the Examiner- 'Newly discovered evidence" is evidence that, with reasonable diligence, could not have been discovered and produced at the time the proceedings before the Examiner • were conducted. .N. The Council shall adopt written findings and conclusions in support of its decision. If the Council concludes that a finding of fact 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- 0. The Council's decision shall include a notice stating that the decision can be appealed within • twenty-one (2 1) calendar days from the date the decision was issued by filing a Land Use Petition with the Superior Court as provided in .RCW Chapter 36-70C and meeting the other provisions of such chapter, and that the decision shall act as official notice under ROW 43.21C.075. • Ord dmi tee 05-02I Amending SVMC 10.35-150,hearing appeals procedures Page 5 of 6 P.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 properly tax purposes notwithstanding any program of revaluation, pursuant to RCW 36.70B.130. Q. Closed record appeals before the Council shall be concluded within sixty (60) clays from the date the transcript and record are received by the City Clerk, unless the applicant agrees in writing to a longer period. • R. The City Clerk shall, within five (5) calendar 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. S. Where the 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 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. Section 3. Severability.. If any section, subsection, sentence or clause of this chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining provisions of this chapter. Section 4. Effective date. This Ordinance shall be in full force and effect five days after publication of this Ordinance or a summary thereof occurs in the official newspaper of the City as provided by law. Approved this 28a day of June, 2005. Otia/Vii t his . AT'ES Mayor, Diana Wilhite ty Clerk, Christine Bainbridge _ Approved As )E;o • ....4-1 V De ty City Attorney Cary P. Driskell Date of Publication: July 1, 2005 Effective Date: July 6, 2005 Ordinance 05-021 Amending SVMC 10.3 .150,hearing appeals procedures Page 6 of 6