Ordinance 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:
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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.
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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
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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.
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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:
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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.
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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
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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.
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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
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