ORD 96-03 APPLICATION REVIEW PROCESSORDINANCE 96-03
AN ORDINANCE of the City of Bainbridge Island, Washington, relating to land use
application review procedures, and amending Chapter 2.16 and Section 1.04.010 and
adding Chapters 2.18 and 2.19 to the Bainbridge Island Municipal .Code.
WHEREAS, ESHB 1724, amends RCW 36.70A.__, of the Growth Management Act,
to require the City to adopt procedures which provide integrated and consolidated land use
permitting; permit one open record hearing and one closed record appeal; provide review time
periods for land use applications; and provide notification and comment periods to applicants
and the public; and
WHEREAS, in accordance with the City's desire to provide an optional land use
mediation process as an alternative to appeal procedures; NOW, THEREFORE, THE CITY
COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DO ORDAIN, as
follows:
Section 1. Section 1.04.010, "Definitions", of the Bainbridge Island Municipal Code is
amended as follows:
1.04.010 Definitions.
The following words and phrases, whenever used in the ordinances of the city, shall be
construed as clef'meal in this section unless from the context a different meaning is intended or
unless a different meaning is specifically defined and more particularly directed to the use of
such words or phrases:
A. "City" and "town" each mean the City of Bainbridge Island, Washington, or the
area within the territorial limits of the City of Bainbridge Island, Washington, and such
territory outside of the city over which the City has jurisdiction or control by virtue of any
constitutional or statUtory provision.
B. "Clerk" and/or "treasurer" mean the office of the clerk/treasurer.
C. "Closed record appeal" An administrative appeal on the record with no or limited
new evidence or information allowed to be submitted and only appeal argument allowed at the
discretion of the decision maker.
D. "Council" means the City Council of the City. "All its members" or "all council
members" means the total number of council members holding office.
E. "County" means the County of Kitsap.
F. "Department Director" means the Director of Planning and Community
Development or his or her designee; or the Director of the Department of Public Works or his
or her designee.
G. "Land use application" means any request for a land use permit or license required
by the City for a project action, including but not limited to building permits, subdivisions.
binding site plans, planned unit developments, conditional uses, variances, shoreline
substantial development permits, site plan and design reviews, permits or approvals required
by critical area ordinances, and site-specific rezones authorized by a comprehensive plan or
subarea plan,. but excluding adoption or amendment of a comprehensive plan, subarea plan or
development regulations.
H. "Law" denotes applicable federal law, the Constitution and statutes of the state, the
ordinances of the city and regulations which may be promulgated thereunder. I. "May" is permissive.
J. "Month" means a calendar month.
K. "Must" and "shall" are each mandatory.
L. "Oath" includes an affirmation or declaration in all cases in which; by 'law, an
affirmation may be substituted for an oath, and in such cases the words "swear" and "sworn"
shall be equivalent to the words "affirm" and "affirmed."
M. "Open record hearing" A hearing conducted by a single hearing body or the
Hearing Examiner, that creates the record through testimony and submission of cvidcncc
exhibits, information and argument.
N. "Owner" applied to a building or land, includes any part owner, joint owner, tenant
in common, joint tenant, tenant by the entirety, of the whole or a part of such building or land.
O. "Person" includes a natural person, joint venture, joint stock company, partnership,
association, club, company, corporation, business, trust, organization, or the manager, lessee,
agent, servant, officer or employee of any of them.
P. "Personal property" includes money, goods, chattels, things in action and evidences
of debt.
Q. "Preceding" and "following" mean next before and next after, respectively.
R. "Property" includes real and personal property.
S. "Real property" includes lands, tenements and hereditaments.
T. "Sidewalk" means that portion of a street between the curbline and the adjacent
property line intended for the use of pedestrians.
U. "State" means the state of Washington.
V. "Street" includes all streets, highways, avenues, lanes, alleys, courts, places,
squares, curbs, or other public ways in this city which have been or may hereafter be
dedicated and open to public use, or such other public property so designated in any law of
this state.
W. "Tenant" and "occupant," applied to a building or land, includes any person who
occupies the whole or a part of such building or land, whether alone or with others.
X. "Written" includes printed, typewritten, mimeographed, multigraphed, or otherwise
reproduced in permanent visible form.
Y. "Year" means a calendar year. (Ord. 82-05 REW'~TE: 1, 1982)
Section 2. A new Section 2.16.005 is added to Chapter 2.16, "Permit Review and Appeal
Procedures", of the Bainbridge Island Municipal Code as follows:
2.16.005 Purpose.
The purpose of this chapter is to establish standard procedures for all land use
applications processed by the City of Bainbridge Island. The procedures are designed to
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promote timely and informed public participation, to eliminate redundancy in the application,
permit review, and appeal processes, to minimize delay and expense~ and to result in
development approvals that further City goals as set forth in the comprehensive plan.
Section 3. A new Section 2.16.015 is added to the Bainbridge Island Municipal Code as
follows:
2.16.015 Application Initiating Authority.
A. In addition to the property owner, the following persons may submit land use
applications:
1. An agent of the owner with authorized proof of agency may apply for
any type of permit.
2. A resident of the dwelling may apply for a home occupation permit.
B. Any person may request an interpretation of the Zoning Code. The Director of
Planning and Community Development may issue interpretations of the Zoning Code as
needed.
Section 4. A new Section 2.16.025 is added to the Bainbridge Island Municipal Code as
follows:
2.16.025 Types of Land Use Applications.
Land use applications are classified into three major categories based on the review
process: (1) administrative, (2) quasi-judicial and (3) consolidated project review. A. Administrative land use decision by a Department Director.
The following applications require an administrative decision by a Department Director
and shall be processed in accordance with section 2.16.095:
Administrative conditional use;
Administrative variance;
Boundary line adjustment;
Building permit and other construction permits;
Building administrative decisions;
Home occupation permit;
Occupancy permit;
Public Works administrative decisions;
Sign permit;
Site plan and design review;
Shoreline substantial development permit and minor shoreline variance;
Short subdivision (short plat);
Zoning code interpretation; and
Any other adn~inistrative land use decision authorized by this code to be made
by the Department Director.
B. Quasi-judicial decision by the Hearing Examiner or City Council.
1. The following applications require a Hearing Examiner decision
and shall be processed in accordance with section 2.16.100 of this chapter: Regular variance;
Shoreline variance and shoreline conditional use permit; and
Regular conditional use permit (CUP).
2. The following applications require a City Council decision and will be
processed in accordance with section 2.16.110 of this chapter: Subdivision approval;'
Planned unit development (PUD); and
Rezone.
C. Consolidated project review.
An optional consolidated project review process is available for a land use proposal that
requires more than one related land use permit. These are processed in accordance with
section 2.16. 120.
Section 5. A new Section 2.16.035 is added to the Bainbridge Island Municipal Code as
follows:
2.16.035 Preapplication Procedure.
A. A preapplication conference may be scheduled by the Department Director for
any type of land use application, but is required prior to submitting an application for the
following permits:
regular conditional use;
regular variance;
site plan and design review approval;
preliminary subdivision (long plat) and short subdivision (short plat);
shoreline substantial development and shoreline conditional use permit;
planned unit development; and
consolidated project review.
B. A preapplication conference for a conditional use permit, variance, site plan and
design review, shoreline substantial development permit or shoreline conditional use permit
may be waived in writing by the Director of Planning and Community Development if the
Director determines the following:
1. The application is consistent with applicable codes and
ordinances;
2. The proposed use is clearly listed as a permitted use in the zoning
district in which it is located;
3. The proposal is exempt from review under the State
Environmental Policy Act (SEPA); and
4. The applicant demonstrates knowledge and understanding of the
city' s permit processing procedures.
C. An applicant shall arrange for a preapplication conference by submitting forms
and plans as prescribed by the applicable Department Director prior to submission of
applicable land use applications. As established by the City Council by resolution, a fee for a
preapplication conference shall be charged and credited to the applicant upon submission of a
City permit application.
D. The preapplication conference is an informal discussion between a potential
applicant, interested citizens and City staff regarding a proposed project. A preapplication
conference shall not include extensive field inspection or correspondence. The purpose of the
preapplication conference is to assist the applicant by identifying the following:
1. Requirements for submittal, including types of permits necessary to
complete the proposal and whether SEPA review is required, pursuant to the State
Environmental Policy Act (SEPA), RCW Chapter 43.21C.
2. Compliance with applicable City plans, goals, policies, codes or
guidelines and possible revisions to the proposed project which will enhance the proposal with
respect to these requirements.
3. Required plans, studies, reports, and/or other materials specific to the
proposal which will provide necessary information for staff to review the project.
E. The discussion at the pre-application conference shall not bind or prohibit the
City' s future application or enforcement of applicable codes and ordinances.
Section 6. A new Section 2.16.045 is added to the Bainbridge Island Municipal Code as
follows:
2.16.045 Application Submittal Requirements.
An application for a specific type of land use decision shall be filed with the
appropriate department on forms prescribed by that department and shall include fees as
required by resolution of the City Council. Each application has specific submittal
· requirements which are described in the code section pertaining to the application. Additional
requirements may be requested on the application form.
Section 7. A new Section 2.16.055 is added to the Bainbridge Island Municipal Code as
follows:
2.16.055 Determination of Complete Application.
A. A land use application shall be deemed complete when all submittal
requirements, as specified in the applicable code provision or application forms, and all fees as
required by resolution of the City Council, have been submitted to the appropriate department
and the application is sufficient for processing, even though additional information may be
required or subsequent project modifications may occur. The Department Direct'or may waive
specific submittal requirements that are determined by the Director to be unnecessary for
review of the application.
B. A determination of a complete application shall not preclude the Department
Director from requesting additional information or studies, if new information is required to
complete final review or if substantial changes in the application are proposed.
C. If a land use application is determined to be incomplete, the City shall request
additional information in writing. The application may be canceled for inactivity if an'
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applicant fails to respond to the Department's written request for revisions, corrections, or
additional information within 60 days of the date of the request. Tho Department Director
may extend the response period beyond 60 days if the applicant provides and adheres to an
approved schedule with specific target dates for submitting the full revisions, corrections, or
other information needed by the Department.
Section 8. A new Section 2.16.065 is added to the Bainbridge Island Municipal Code as
follows:
2.16.065 Permit Coordinator.
The Department Director shall designate a department staff permit coordinator for each
land use application submitted to the City. The permit coordinator will serve as the city
representative to the applicant.
Section 9. A new Section 2.16.075 is added to the Bainbridge Island Municipal Code as
follows:
2.16.075 Application Timeframes.
A. The City shall issue a final decision on a land use application within 120 days
from the date the application is determined to be complete pursuant to Section 2.16.055. All
land use decisions shall be made within the time periods specified by state statute. Where
there is a conflict in time periods of state statute, the state statute with the more restrictive time
period shall govern.
B. For purposes of calculating time periods and counting days of permit
· processing, the time period shall begin on the first day following the date the application is
determined to be complete. The following periods shall be excluded from the 120 day period:
1. Any period during which the applicant has been requested by the City to
correct plans, perform required studies, or provide additional information, in accordance with
section 2.16.055;
2. Any period during which an environmental impact statement is being
prepared following a determination of significance pursuant to RCW 43.21C;
3. Any period during which an appeal of project permit is being reviewed;
and
4. Any extension of time mutually agreed upon by the applicant and the
City.
C. The time limits established by this section do not apply if a land u~e application
includes one of the following:
1. An amendment to the comprehensive plan or an amendment to a land use
development regulation;
2. Siting of an essential public facility as provided in RCW 36.70A.200;
3. An application substantially revised by the applicant, in which case the
time period shall start from the date at which the revised project application is determined to
be complete under Section 2.16.055; or
4. An application for a street vacation.
D. · If the City is unable to issue its final decision on a land use application within
the applicable time periods, the City shall provide written notice of this fact to the project
applicant. The notice will include a statement of reasons why the time periods have not been
met and an estimated date for issuance of the notice of final decision.
E. The City is not liable for damages pursuant to RCW Chapter 64.40 if the City
fails to make a final decision within the time periods established by this section.
Section 10. A new Section 2.16.085 is added to the Bainbridge Island Municipal Code as
follows:
2.16.085 Notice Requirements.
A. Types of Notifications. All applications, except those exempted in subsection
Section G, require the following notifications:
Notice of Complete Application;
Notice of Application and public comment period;
Notice of Public Hearing, if a public hearing is required; and
Notice of Decision and appeal period.
B. Notice of Complete Application.
1. Within 28 days after receiving a land use permit application, the
Department Director shall either mail, fax, or otherwise provide to the applicant a written
determination, stating either that the application is complete or that the application is
incomplete and what is necessary to make the application complete.
2. If the application is determined to be incomplete, the Department
Director will request additional information in writing.
3. Within 14 days after an applicant has submitted additional information
identified by the Department Director as being necessary for a complete application, the
Department Director shall notify the applicant whether the application is complete or what
additional information is necessary.
4. If the Department Director does not provide a written determination as
to whether the application is complete within the 28 days, the application shall be deemed
complete as of the 281h day.
C. Notice of Application and public comment period - Notice to Public.
1. Within 14 days of a Notice of Complete Application, the Department
Director shall issue a Notice of Application for a land use application subject to SEPA review
and/or requiring a public hearing. The Notice of Application shall provide a mirlimum
comment period of 14 days. For projects requiring review under the State Environmental
Policy Act (SEPA), the SEPA threshold determination shall not be issued prior to the
expiration of the Notice of Application comment period. 2. Method of Notice.
The Notice of Application shall be provided to 'the public and other government
agencies with jurisdiction over some aspect of the application by the following means:
a. Mailing written notice to adjoining property owners at addresses
listed on the property tax records of Kitsap County;
b. Posting notice in the official posting places of the City; and
c. Publishing notice in the official newspaper of the City.
3. Notice of Application Contents.
The Notice of Application shall contain the following information:
a. Date of application, date of Notice of Complete Application, and
date of Notice of Application;
b. Description of proposed project, location and street address if
applicable;
c. Identification of requested permits, requested studies, other
in the application and existing environmental documents pertaining to the
permits not included
proposal;
d. A statement of the date, time and place of any scheduled public
hearing related to the application;
e. A statement of the 14 day comment period and any appeal rights;
f. Statements of the right for any person to comment on the
application, receive notice of and participate in any public hearing, and request a copy of any
decision; and
g. A statement of the preliminary determination, if any, of
development regulations that will be used for project mitigation. D. Notice of Public Hearing.
Notice for an application requiring a public hearing shall provide in the following
manner:
1. Time of Notice. The Hearing Examiner shall provide notice of the public
hearing at least 15 days prior to the hearing or as otherwise provided by law.-
2. Method of Notice. The Hearing Examiner shall provide notice of an
appeal hearing as provided in subsection a-c and shall provide public notice for any other
public hearing by:
a. Posting notice in the official posting places of the city;
b. Publishing notice in the official newspaper of the city at least 15
days prior to the hearing or as otherwise provided by law;
c. Mailing the applicant and appellant, if applicable;
d. Mailing notice to the address listed on the properly tax records of
Kitsap County for property located within 300 feet of any boundary of the subject property and
including any property within 300 feet of any contiguous property in the applicant's
ownership; and
e. Posting the subject property. The city shall prepare and post an
eight square foot sign containing the information described in subsection 3 a - e, and i, below.
Public Hearing Notice Contents.
3. Public Hearing Notice Contents.
The Hearing Examiner shall prepare notice of an upcoming public
hearing on the application containing the following information:
a. Applicant, agent and project name;
of the Hearing Examiner;
C.
d.
e.
f.
g.
h
i.
j.
k.
applicable;
and
E,
application.
Name and telephone number of the permit coordinator and name
Hearing date, time and place;
Location of the proposal and street address if applicable;
Brief description of the proposal and requested permit;
Vicinity map;
Citation of the code section requiring public hearing;
SEPA determination, if applicable;
Procedures for public comment;
Appeal procedures when appropriate;
The decision being appealed and the name of the appellant, if
A brief description of the decision being appealed, if applicable;
m. A statement of who may participate in the appeal, if applicable.
Notice of Decision and Appeal Period.
1. A Notice of Decision shall be issued upon a f'mal decision on a land use
Notice of Decision shall include:
a. A statement indicating that the application is approved, approved
with modifications, denied or remanded;
b. A statement of any conditions included as part of a decision for
approval or approval with modifications;
c. A statement of facts upon which the decision, including any
conditions, is based and the conclusions of law derived from those facts;
d. The SEPA threshold determination and mitigation conditions as
specified in BIMC 16.04, if applicable; and
e. Procedures for appeal, if any, in accordance with section
2.16.130 and 140.
2. The decision maker shall distribute the Notice of Decision by mail, fax,
or personal service to the applicant, the applicable Department Director and any persons
requesting notice or submitting comments on the application prior to the decision. F. Combining public notices.
If a land use application is subject to environmental review under BIMC 16.04 (RCW
43.21C), and requires a SEPA threshold determination, the SEPA public notice and notice of
SEPA public comment period, if any, shall be combined with other land use application
notices when possible. A combined notice shall include a statement that a single' comment
letter may be submitted to the SEPA Official, addressing impacts as well as other issues
subject to review under the decision criteria for the land use application. G. Exemptions from public notice requirements.
The following land use applications do not require a Notice of Application and public
comment period, or Notice of Decision:
1. A building permit or other construction permit;
2. An administrative decision which is categorically exempt under SEPA.
(RCW 43.21C), unless the permit application procedures require a public comment period or
public hearing. ~
Section 11. Section 2.16.010 of the Bainbridge Island Municipal Code is amended and
recodified as follows:
2.16.095 Administrative Decision Procedures.
A. Applicability. This section applies each time a provision of this code authorizes
administrative review of land use application.
B. State Environmental Policy Act. The State Environmental Policy Act (SEPA)
and the Bainbridge Island SEPA Ordinance (Chapter 16.04 of this Code) may also apply to
actions processed under this section.
C. Participation in the Decision. Any person may comment on a proposed decision
by submitting written comments on the application to the applicable Department Director prior
to the end of the Notice of Application fourteen (14) day comment period for those
applications not otherwise exempted under 2.16.085 G.
D. Decision Procedures.
In making a decision, the Department Director shall consider the applicable decision
criteria of this code, all other applicable law, and any necessary documents and approvals.
1. Environmental review. For a land use application subject to RCW
Chapter 43.21 and 16.04 of this code, a SEPA threshold determination may be issued
simultaneously with the f'mal decision of the land use application.
2. Planning Commission recommendation. When written public comments
are received during the public comment period concerning the effect on the land use
· application of the Comprehensive Plan, Shoreline Master Program or matters not addressed by
specific provisions of this code, the Director of Planning and Community Development may
request the Planning Commission to review an application and make a written recommendation
prior to the Director making a decision. The Planning Commission will consider the land use
application at a public meeting.
a. The Planning Commission shall recommend approval, approval
with modifications or denial of an application.
b. In making a recommendation, the Planning Commission shall
consider the applicable decision criteria of this code, all other applicable law, and any
necessary documents and approvals.
c. If the applicable criteria are not met, the Planning Commission
shall recommend the proposal be modified or denied.
d. A Planning Commission recommendation is not a final decision
and therefore there is no appeal of the recommendation.
3. Transmittal of Planning Commission recommendation. The Planning
Cormnission's recommendation and other documents upon which its decision is based shall be
immediately transmitted to the Director of Planning and Community Development.
4. Single report. The Department Director shall prepare a single
consolidated report setting forth all the recommendations and decisions made on the
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application as of the date of the report. The report shall state any mitigation required or
p[oposed under the development regulations or as required through SEPA, RCW 43.21C. The
report shall include the SEPA determination if a determination has not previously been issued.
E. Department Director Decision. The Department Director may approve,
approve with modifications or deny the application, based on the decision criteria and findings
of fact.
F. Corrections or Clarification.
1. The Department Director may amend the decision at any time to correct
clerical errors clearly identifiable from the public record. Such a correction does not affect any
time limit provided for in this chapter.
2. The Department Director may clarify a statement in the written decision
at any time as long as the clarification does not materially alter the decision.
G. Effect of Decision. Subject to the provisions of subsection H i[, the decision of
the Department Director is the final decision of the City.
H. Appeal of the Decision. The decision of the Department Director may be
appealed to the Hearing Examiner in accordance with the procedures of Section 2.16.130.
Section 12. Section 2.16.020, "Planning Commission review and recommendation
procedures," of the Bainbridge Island Municipal Code is repealed.
Section 13. Section 2.16.030, "Planning Commission hearing procedures," of the Bainbridge
Island Municipal Code is repealed.
Section 14. Section 2.16.040, "Hearing Examiner hearing and recommendation procedures,"
of the Bainbridge Island Municipal Code is repealed.
Section 15. Section 2.16.050 of the Bainbridge Island Municipal Code is amended as follows:
2.16.100 Hearing Examiner decision procedures.
A. Applicability. This section applies each time a provision of this code authorizes
a public hearing before the Hearing Examiner and a final decision by the Hearing Examiner.
B. State Environmental Policy Act. The State Environmental Policy Act (SEPA)
and the Bainbridge Island SEPA Ordinance (Chapter 16.04 of this) may also apply to an action
processed under this section.
C. Decision Procedures. Land use applications requiring a Hearing Examiner
decision shall first be reviewed by the Director of Planning and Community Development as
follows:
1. Environmental review. For a land use application subject to RCW
Chapter 43.21C and Chapter 16.04 of this code, the SEPA threshold determination shall be
issued and any required public comment period shall be completed prior to a public hearing.
2. Planning Commission review and recommendation. For all land use
applications decided by the Hearing Examiner, when written public comments are received
during the public comment period concerning the effect on the land use application of the
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Comprehensive Plan, the Shoreline Master Program or matters not addressed by specific
provisions of'this code, the Director of Planning and Community Development or the Hearing
Examiner may request Planning Commission review and recommendation prior to the final
decision. The Planning Commission will consider the land use application at a public meeting.
a. The Planning Commission may recommend approval, approval
with modifications or denial of an application.
b. In making a recommendation, the Planning Commission shall
consider the applicable decision criteria of this code, all other applicable law, and any
necessary documents and approvals.
c. If the applicable criteria are not met, the Planning Commission
shall recommend the proposal be modified or denied.
d. A Planning Commission recommendation is not a final decision
and therefore there is no appeal of the recommendation.
3. Transmittal of Planning Commission recommendation. The Planning
Commission's written recommendation and other documents upon which its decision is based
shall be immediately transmitted to the Director of Planning and Community Development and
Hearing Examiner.
4. Single report. The Director of Planning and Community Development
shall prepare a single consolidated report setting forth all the recommendations and decisions
made on the application as of the date of the report. The report shall state any mitigation
required or proposed under the development regulations or as required by SEPA, RCW
Chapter 43.21C and shall include the SEPA determination if a determination has not
previously been issued. The report shall be presented to the Hearing Examiner at the public
hearing.
D. Public Hearing. The Hearing Examiner shall hold a public hearing prior to
issuing a decision. The Hearing Examiner shall maintain a record of the exhibits presented
and a tape recording of the testimony and arguments presented, which shall be kept by the city
clerk.
E. Participation in the Public Hearing. Participation in the hearing will be in
accordance with the following procedures:
1. Any person may participate in the public hearing. The Hearing
Examiner has discretion to limit testimony to rele. vant, non-repetitive comments and to set time
limits.
2. Any person may submit written comments, photographs or other exhibits
on the application to the Hearing Examiner prior to or at the public hearing.
F. Hearing Examiner Action.
1. The Hearing Examiner may approve, approve with modifications, deny
or remand an application.
2. In making a decision, the Hearing Examiner shall consider the applicablc
decision criteria of this code, all other applicable law, and any necessary documents and
approvals.
G Notice of Decision of the Hearing Examiner. The Hearing Examiner shall issue
a written decision in accordance with section 2.16.085 E., within 10 days of the public
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hearing, unless a longer period is agreed upon by the Hearing Examiner and the applicant.
The Hearing Examiner shall file the decision with the City Clerk's office and distribute it in
accordance with section 2.16.085 E 2.
H. Continuation of Hearing. A hearing may be continued to a date certain without
additional notice.
I. Motion for Reconsideration. A motion for reconsideration may be filed to
correct obvious errors. Such motion shall be filed in writing 10 days from the date the Hearing
Examiner's decision was filed. Such motion shall be decided on the record unless, at the
Hearing Examiner's discretion, further public hearing is necessary. If a timely and appropriate
request for reconsideration is filed, the appeal period shall begin from the date the decision on
the reconsideration is issued.
J. Corrections or Clarification.
1. The Hearing Examiner at any time may amend the decision to correct
clerical errors clearly identifiable from the public record. Such correction does not affect any
time limit provided for in this chapter.
2. The Hearing Examiner may clarify a statement in the written decision as
long as the clarification does not materially alter the decision.
K. Effect of Decision. Subject to the provisions of Section 2.16.100 L., the
decision of the Hearing Examiner is the final decision of the city.
L. Appeal of a Hearing Examiner Decision. Appeals of a Hearing Examiner final
decision shall be made to the City Council and follow the procedures of Section 2.16.140.
Section 16. A new Section 2.16.110 is added to the Bainbridge Island Municipal Code as
follows:
2.16.110 City Council decision procedures
A. Applicability. This section applies each time a provision of this code authorizes
a final decision by the City Council for a land use application.
B. State Environmental Policy Act. The State Environmental Policy Act (SEPA)
and the Bainbridge Island SEPA Ordinance, Chapter 16.04 of this code, may also apply to
actions processed under this section.
C. Decision Procedures. A land use application requiring a City Council decision
shall be reviewed as follows:
1. Environmental review. For a land use application subject to RCW
Chapter 43.21C and Chapter 16.04 of this code, the SEPA threshold determinationshall be
issued and comment period shall be completed prior to a public hearing.
2. Hearing Examiner recommendation. A land use application requiring a
City Council decision also provides opportunity for the Hearing Examiner to make a
recommendation to the City Council prior to the final decision.
3. The Hearing Examiner will consider the land use application at a public
hearing following the procedures of Section 2.16. 100 D through J.
4. Transmittal of Hearing Examiner recommendation to City Council. The
Hearing Examiner's written recommendation and other documents upon which the decision is
based shall be immediately transmitted to the Director of Planning and Community
Development. and City Council.
5. Single report. The Hearing Examiner shall prepare a single consolidated
report setting forth all the recommendations and decisions made on the application as of the
date of the report. The report shall state 'any mitigation required or proposed under the
development regulations or as required by SEPA, RCW Chapter 43.21C, and shall include the
SEPA determination if a determination has not previously been issued. The report shall be
presented to the City Council.
D. City Council Public Meeting. The City Council shall hold a public meeting to
consider the land use application prior to issuing a decision. Notice of City Council
consideration of recommendations from the Hearing Examiner shall be posted in the official
posting places of the City.
E. City Council Action.
1. Elements to be Considered. The City Council shall consider the
following in deciding upon an application:
a. The contents of the application;
b. The minutes of any public hearing on the application and any
written material submitted as part of the public hearing process;
c. The recommendation of the applicable Department Director;
d. The recommendation of the Hearing Examiner; and
e. The decision criteria listed in each section of this code under
which the application was made.
2. City Council Decision. The City Council shall take one of the following
actions:
a. Adopt an ordinance or resolution, including findings of fact and
conclusions of law, approving the proposal;
b. Adopt an ordinance or resolution, including findings of fact and
conclusions of law, approving the proposal with modifications;
c. Adopt an ordinance or resolution, including findings of fact and
conclusions of law, denying the proposal; or
d. Refer the proposal back to the Hearing Examiner for further
proceedings.
F. Appeal of a City Council Decision. The decision of the City Council shall be
final unless, within 21 days after issuance of a decision, a person with standing, appeals the
decision in accordance with RCW 36.70 C.
Section 17. A new section 2.16.120 is added to the Bainbridge Island Municipal Code as
follows:
2.16.120 Consolidated Project Review
A. An applicant for a single project proposal requiring more than one land use
application may choose to follow the consolidated project review process. The procedures
include consolidation of various land use applications, public notification of an application and
opportunity for public comment prior to a final decision. Any combination of land use
applications not otherwise exempted may be processed under the consolidated project review
process.
B. Exemptions. The following land use applications are exempted from
Consolidated Project Review: Boundary line adjustment, building and other construction
permits and similar administrative decisions which are exempt from SEPA.
C. Procedures. A consolidated project permit application shall follow the
application and notice procedures which require the most extensive review and decision
process.
1. Environmental review. For a consolidated land use application subject
to RCW Chapter 43.21C and Chapter 16.04 of this code, the SEPA threshold determination
shall be issued and any required public comment period shall be completed prior to a public
hearing.
2. Planning Commission or Hearing Examiner recommendation. If a
Planning Commission recommendation is required for any related consolidated land use
application, the Planning Commission shall consider the land use application at a public
meeting in accordance with Section 2.16.095 D 2. of this Chapter. If a Hearing Examiner
recommendation is required for any related consolidated land use application, the Hearing
Examiner will consider the land use application at a public hearing in accordance with Section
2.16.100 D through J of this Chapter.
3. Public Hearing. If a public hearing is required for any of the related
land use applications of a consolidated project, the public hearing shall combine all the
applicable permit application requests.
a. Related applications requiring a public hearing shall be
considered at only one public hearing.
b. If the SEPA threshold determination is appealed for a proposal
under the consolidated project review process, the SEPA appeal hearing shall be combined
with the public hearing for the consolidated project application.
Section 18. Section 2.16.060 of the Bainbridge Island Municipal Code is amended as follows:
2.16.130 Appeal procedures - Appeal of an administrative decision to the Hearing
Examiner.
A. Applicability. This section is applicable to all hearings conducted in response to
appeals of administrative decisions, departmental rulings and interpretations made in
accordance with administrative review procedures of Section 2.16.095. Appeals of decisions
made in accordance with Chapter 16.04 of this code, the city's SEPA rules, shall be made
according to the procedures in that chapter and shall be combined with an appeal hearing as
specified in subsection E.
B. Form of the Appeal.
1. An appeal of an administrative decision shall be filed with the city clerk
14 days after the date of the decision or 21 days if the land use decision requires a SEPA
threshold determination public comment period pursuant to WAC 197-11-340, or within a time
flame otherwise specified by law.
· 2. All appeals shall be filed in writing with the city clerk, shall identify the
decision appealed and the date of the decision, and shall contain a summary of the grounds for
the appeal.
3. The appropriate fee as established by city resolution must be paid upon
filing of the notice of appeal. No appeal will be processed without receipt of the appropriate
fee before expiration of the period for filing the appeal.
4. Following receipt of a notice of appeal and payment of the appropriate
fee, a public hearing shall be set by the Hearing Examiner.
5. All written comments and related documents received prior to the appeal
hearing shall be transmitted to the Hearing Examiner no later than the hearing date.
C. Content of Appeal. Appeal hearings shall be limited to the issues specified in
the written appeal.
D. Continuation of Hearing. A hearing may be continued to a date certain without
additional notice.
E. Appeal Hearing. The appeal shall be heard at an open record public hearing.
Participation in an appeal hearing is limited to the applicant, the applicant's representative, the
appellant, the appellant' s representative, appropriate city staff and consultants, any witnesses
called by each and any nonparty who submitted written comments during the public comment
period if the Hearing Examiner determines that the testimony will be relevant to the issue on
appeal and nonrepetitive of the testimony of other witnesses.
F. Decision on the Appeal.
1. Hearing. In considering appeals, the Hearing Examiner shall do one of
the following:
consideration.
remand.
a. Affirm the decision;
b. Reverse the decision;
c. Affirm the decision with modifications; or
d. Remand the decision to the Department Director for further
The Hearing Examiner shall include in the order the issues to be reviewed on
2. Standard of Review. Upon completion of the appeal hearing the Hearing
Examiner shall render a decision, in accordance with Section 2.16.130 F 4, below, giving
substantial weight to the decision of the Department Director.
3. Conditions. The Hearing Examiner may include conditions as part of a
decision granting, or granting with modifications an appeal to insure conformance with this
code, the city's comprehensive plan and other applicable laws or regulations.
4. Written Decision. Within 20 working days after completion of the public
hearing unless the appellant and the Hearing Examiner have consented to an extension of time,
the Hearing Examiner shall issue a written decision on the appeal which contains the
following:
a. The decision of the Hearing Examiner granting or denying the
appeal in whole or in part;
b. Any conditions included as part of the decision on the appeal;
16
c. Findings of facts upon which the decision, including any
conditions, is based and the conclusions of law derived from those facts; and
d. A statement of the right of a person with standing to appeal the
decision of the Hearing Examiner in accordance with RCW 36.70C.
5. Distribution. The Hearing Examiner or designee body shall mail a copy
of the written decision to the applicant, the appellant, the applicable Department Director, and
any person requesting the written decision or who submitted substantive comments on the
application prior to the decision.
6. Appeal of the Decision of the Hearing Examiner. The decision of the
Hearing Examiner shall be final unless, within 21 days after issuance of a decision, a person
with standing, appeals the decision in accordance with RCW 36.70
Section 19. Section 2.16.070 of the Bainbridge Island Municipal Code is amended as follows:
2.16.140 Appeal procedures - Appeal of a Hearing Examiner decision to the City Council.
A. Applicability. This section is applicable to all hearings conducted in response to
appeals of Hearing Examiner decisions made in accordance with the Hearing Examiner
decision procedures of Section 2.16.100 and 2.16.060. Appeals of decisions made in
accordance with Chapter 16.04 of this code, the city's SEPA rules, shall be made according to
the procedures in that chapter.
B. Form of the Appeal.
1. Any appeal shall be filed with the city clerk 14 days after the date of the
decision or 21 days if the land use decision requires a SEPA threshold determination public
comment period pursuant to WAC 197-11-340, or within a time frame otherwise specified by
law.
2. All appeals shall be fried in writing with the city clerk, shall identify the
decision appealed and the date of the decision, and shall contain a summary of the grounds for
the appeal.
3. The appropriate fee as established by city resolution shall be paid upon
filing of the notice of appeal. No appeal will be processed without receipt of the appropriate
fee before expiration of the period for filing the appeal.
4. Following receipt of a notice of appeal and payment of the appropriate
fee, a public hearing shall be set with the City Council.
5. All written comments and related documents received prior to the appeal
hearing shall be transmitted to the City Council no later than the hearing date.
C. Content of Appeal. Appeal hearings shall be limited to the issues gpecified in
the written appeal.
D. Continuation of Hearing. A hearing may be continued to a date certain without
additional notice.
E. Appeal Hearing.
The appeal shall be heard at a closed record appeal hearing. Participation in an
appeal hearing is limited to the applicant, the applicant's representative, the appellant, the
appellant's representative, appropriate city staff and consultants, and any nonparty if the City
17
Council determines that the testimony will be relevant to the issue on appeal and nonrepetitive
of the testimony of other witnesses.
F. Decision on the Appeal.
1. Hearing. In rendering a decision regarding an appeal, the City Council
shall do one of the following:
a. Affirm the decision;or
b. Reverse the decision;or
c. Affirm the decision with modifications; or
d. Remand the decision to the Hearing Examiner for further
consideration, including a statement of the issues to be reviewed on remand.
2. Criteria. The City Council may grant, or grant with modifications, the
appeal if the City Council finds one of the following standards has been met:
a. The land use decision is an erroneous interpretation of the law;
b. The land use decision is not supported by evidence that is
substantial when viewed in light of the whole record;
c. The land use decision is a clearly erroneous application of the
law to the facts; or
d. The land use decision is outside the authority or jurisdiction of
the Hearing Examiner.
3. Conditions. The City Council may include conditions as part of a
decision granting or granting with modifications an appeal to insure conformance with this
code, the city' s comprehensive plan and other applicable laws or regulations.
4. Written Decision. The City Council shall issue a written decision on the
appeal which contains the following:
a. The decision of the City Council on appeal;
b. Any conditions included as part of the decision on the appeal;
c. Findings of facts upon which the decision, including any
conditions, is based and the conclusions of law derived' from those facts; and
d. The right of an affected applicant or appellant to appeal the
decision of the City Council.
5. The city clerk or his or her designee shall mail a copy of the written
decision to the applicant, the appellant, the Hearing Examiner, the applicable Department
Director, and any person requesting the written decision or who submitted substantive
comments on the application prior to the decision.
6. Appeal of the Decision of the City Council. The decision of the City
Council shall be final unless within 21 days after issuance of a decision a person with
standing, appeals the decision in accordance with RCW 36.70 C.
Section 20. A new Table 2.16. 150 is added to the Bainbridge Island Municipal Code as
follows:
i] ........... !~.l.!~..'lliW I"I~(.)C!:.'I)I:!~IiS IjNI.)IZR CIi..\l"!'!!l~ 2.16 & 2.18
Application
Type
SEPA D
Site Plan & D
Design Review
CUP -admin. D
CUP- regular
Variance - D
admin.
Variance -
regular
Shoreline D
SSDP & Var.
Shoreline
Vat. & CUP
Short plat D
PUD
Subdivision
Rezone
Rezone -
legislative
D = Decision
upon Request
Administrative
Planning
Commission
(R)
Hearing
Examiner
A
A
City
Council
(R)
(R)
(R)
A
D
A
A
(R) D A
(R)
A
(R)
(R)
R
D/R A
to DOE
A
R D
R D
R D
D
A = Appeal R = Recommendation (R) = Recommendation
Note: The comp. plan amendment process is located in BIMC 18.117
and is not affected by Ord. 96-03.
Section 21. A new Chapter 2.18 is added to the Bainbridge Island Municipal Code as follows:
2.18 Legislative Review Procedures
2.18.010 Purpose and Applicability
This chapter applies to amendments to the Zoning Code, the Bainbridge Island Official Zoning
Map, and area-wide rezones initiated by the City.
2.18.020 Planning Commission Review and Recommendation
A. Public Hearing
· The Planning Commission shall hold a public hearing for all amendments to the
Official Zoning Map and Zoning Code of the City prior to issuing a recommendation to the
City Council.
1. Participation in the Public Hearing
a. Any person may participate in the public hearing. The Planning
Commission has discretion to limit testimony to relevant, non-repetitive comments and to set
time limits.
b. Any person may submit written comments, photographs or other
exhibits on the proposed amendment to the Planning Commission prior to or at the public
hearing.
c. The Planning Commission shall maintain a record of the exhibits
presented and a tape recording of the testimony and arguments presented, which shall be kept
by the City Clerk.
B. Planning Commission Action and Written Recommendation
1. In making a recommendation, the Planning Commission shall consider
applicable decision criteria of this code, all applicable law, and any necessary documents and
approvals.
2. The Planning Commission shall issue a written recommendation which
contains the following:
a. A statement indicating that the proposed amendment is approved,
approved with modifications or denied; and
b. A statement of facts upon which the recommendation is based
and the conclusions derived from those facts.
C. Transmittal to City Council. The Planning Commission's written
recommendation and other documents upon which its decision is based shall be immediately
transmitted to the City Council and Department Director.
2.18.030 City Council Review
A. Public Hearing.
The City Council may hold a public hearing to consider the proposed
amendment prior to issuing a decision.
1. Participation in the public hearing.
a. Any person may participate in the public hearing. The City
Council has discretion to limit testimony to relevant, non-repetitive comments and to set time
limits.
b. Any person may submit written comments, photographs or other
exhibits on the proposed amendment to the City Council prior to or at the public hearing.
c. The City Council shall maintain a record of the exhibits
presented and a tape recording of the testimony and arguments presented, which shall be kept
by the City Clerk.
B. City Council Action
1. Elements to be considered. The City Council shall consider the
2O
following in deciding upon a proposed amendment:
a. The contents of the amendment;
b. The minutes on any public hearing on the proposed amendment
and any written material submitted as pan of the public hearing process;
c. The recommendation of the Planning Commission and applicable
Department Director;
d. Any applicable decision criteria.
2. City Council Decision. The City Council shall adopt an ordinance or
refer the proposal back to the Planning Commission for further proceedings.
Section 22. A new Chapter 2.19 is added to the Bainbridge Island Municipal Code as follows:
2.19 Land Use Mediation
2.19.010 Purpose
Land use mediation is an optional, voluntary method for resolution of contested land
use applications and code enforcement. Through mediation, disputes may be resolved in a
manner which is less formal and more conciliatory than the formal appeal process. Use of
mediation, however, does not alter any rights to an administrative or judicial appeal.
The goals of mediation are: 1) Provide a mechanism to identify issues and affected and
responsible parties, 2) provide a mechanism for parties to develop reasonable alternative
resolutions; and 3) Provide a means for facilitating the resolution of disputed land use
applications and code enforcement.
The mediation process should result in a recommendation to the decision making body
in the form of a mediation agreement consistent with the comprehensive plan, adopted codes
and ordinances and the general public interest.
2.19.020 Applicability
This chapter shall apply to all disputed land use applications and code enforcement.
A. Who may request. Mediation may be requested by responsible or directly
affected parties to the dispute, the Department Director, the Planning Commission, the
Hearing Examiner, or the City Council. Time constraints of the project review process as set
forth in Section 2.16.075, may be waived by the applicant to accommodate mediation
proceedings.
B. When may mediation occur. Mediation may occur at any stage in the project
review process prior to the close of a public hearing.
1. If mediation is initiated during the public hearing, the hearing shall be
continued in accordance with the hearing procedures for that decision body.
2. Mediation of code enforcement may occur prior to the initiation of legal
action by the city.
2.19.030 Mediation Procedures
Upon request for a mediation process, the Department Director shall designate a
21
mediator in accordance with section B, below. The mediator will set a mediation meeting date
and notify the interested parties. .
A. Use of mediation shall not alter any rights to an administrative or judicial
appeal.
B. Mediator
1. All disputes shall be meditated by a mediator who understands
Washington State growth management issues, has mediation experience and is acceptable to all
the parties. Mediators shall be guided by the Standards of Practice of Mediation of the
American Bar Association. Compensation for the mediator shall be provided by the parties at
the mediators standard rate, or as negotiated by the parties, or by the City through a mediation
compensation process adopted by resolution of the City Council.
2. If one or more of the parties declares a loss of confidence in the
mediator during the mediation, the mediation may be terminated upon agreement by the
parties, or may continue after another mediator receives mutual approval.
C. Mediator's powers and functions
1. The mediator is the facilitator of decision-making among the various
parties to the dispute. As such the mediator will:
a. Assist the parties in developing procedures for conducting the
negotiations, including ground rules, schedule of meetings, identification of essential parties,
and identification of spokespersons for parties;
b. Request additional information from any party to the mediation
and from any government official or body; and
c. Maintain mediator confidentiality throughout and subsequent to
the process.
2. By participating in a mediation, the participants agree that all mediation
sessions are confidential settlement negotiations, and that all offers, promises, conduct and
statements, whether written or oral, made in the course of the mediation are inadmissible in
any litigation or arbitration of the dispute, to the extent allowed by law.
D. Mediation Meeting
The mediator is authorized to have the following types of meetings:
1. Meetings with any and all participants;
2. Plenary sessions in which any and all participants participate;
3. Individual sessions as deemed necessary by the mediator;or
4. A final meeting to review and sign the mediation agreement.
2.19.040 Mediated Agreement
If at the conclusion of the mediation all parties agree to a resolution of the dispute, the
parties will all sign a Mediated Agreement which will be forwarded to the appropriate body
for consideration and official approval.
2.19.050 Findings and Report
At the conclusion of the mediation, the mediator will prepare a report. If the mediation
is not successful, the report may be issued only on approval of all parties. The report will
22
describe the issues that are in contention, identify the areas of agreement, and maintain as
confidential information that the parties have requested be kept conficlential. The report shall
be reviewed by and be acceptable to all parties prior to transmittal to the decision authority.
The purpose of this information is to help the decision authority to move expeditiously.
Section 23. Relationship to other zoning provisions. To the extent that procedures set forth
in the provisions of this ordinance amending or adding sections to Chapter 2.16 and 2.18
BIMC are inconsistent with procedures set forth in other City code provisions, the procedures
set forth in this ordinance shall supersede the procedures in the other City code provisions.
Section 24. Application of this ordinance. This ordinance shall apply to all land use
applications filed on or after the effective date of this ordinance and to all land use applications
filed before the effective date of this ordinance for which there has not been an administrative
decision, public hearing, or review by the Planning Commission.
Section 25. Effective date. This Ordinance shall be effective five (5) days following approval,
publication and posting as required by law.
PASSED by the City of Bainbridge Island this 15 day of Feb r u a r y
,1996.
APPROVED by the Mayor this 2 9. day of F e b r u a r y
,1996.
ATTEST/AUTHENTICATE:
SUSAN P. KASPER, City Clerk
JANET K. WEST, Mayor
APPROVED AS TO FORM:
ROD P. KASEGUMA, City Attorney
FILED WITH THE CITY CLERK:
23
PASSED BY THE CITY COUNCIL:
PUBLISHED:
POSTED:
EFFECTIVE DATE:
ORDINANCE
February 15, 1996
March 7, 1996
March 7, 1996
March 12, 1996
96-03