ORD 2003-07 PERMIT REVIEW AND APPEAL HEARING PROCEDURES ORDINANCE NO. 2003 - 07
AN ORDINANCE of the City of Bainbridge Island, Washington,
relating to permit review and appeal hearing procedures;
amending Sections 1.04.070, 2.16.100 and 2.16.130E of the
Bainbridge Island Municipal Code; and adding new Sections
2.16.020 and 2.16.030 to the Bainbridge Island Municipal Code.
WHEREAS, Chapter 2.16 of the Bainbridge Island Municipal Code contains
procedures for processing land use applications and for hearing appeals of decisions on land
use applications; and
WHEREAS, the City Council has determined that it is in the best interests of the City
to amend the provisions of the City code relating to hearing procedures as set forth in this
Ordinance; now, therefore,
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON,
DO ORDAIN AS FOLLOWS:
Section 1. A new Section 2.16.020 is added to the Bainbridge Island Municipal
Code as follows:
Jurisdiction. Jurisdiction of the departmem director or the hearing examiner is
limited to those issues where ordinance or other appropriate authority grants the
authority to issue a decision, recommendation, or issue an order.
Section 2. A new Section 2.16.030 is added to the Bainbridge Island Municipal
Code as follows:
Prohibited Ex Parte Communications.
A. Except as permitted under Chapter 42.36 RCW, a proponent or
opponent, or his or her agent or representative, of a quasi-iudicial matter that is
pending before the hearing examiner or council, shall not communicate ex
parte, directly or indirectly, with the examiner or a council member concerning
the merits of the pending matter or a factually related quasi-iudicial matter.
This rule shall not prohibit ex parte communications concerning procedural
matters.
B. Except as permitted under Chapter 42.36 RCW, the hearing examiner or
a council member shall not communicate ex parte, directly or indirectly, with a
proponent or opponent, or his or her agent or representative, of a quasi-iudicial
matter that is pending before the examiner or council concerning the merits of
the pending matter or a factually related quasi-iudicial matter. This rule shall
not prohibit ex parte communications concerning procedural matters.
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C. If a prohibited ex parte communication is made to or by the hearing
examiner or a council member, the examiner or council member shall comply
with Chapter 42.36 RCW.
D. Any person seeking to rely on the provisions of this section to disqualify
the hearing examiner or a council member from participating in a decision must
raise the challenge as soon as the basis for disqualification is made known to the
person. Where the basis is known or reasonably should have been known prior
to the issuance of the decision and is not raised until after the issuance of the
decision, it may not be relied on to invalidate the decision.
Section3. Subsection 2.16.085D of the Bainbridge Island Municipal Code is
amended to read as follows:
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 subsections D.2.a through D.2.c of this
section 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 14 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 property 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;
e. Mailing notice to any person who has submitted a written
request for notice of the hearing; and
~ _f. Posting the subject property in a manner prescribed by the
city.
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;
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b. Name and telephone number of the permit coordinator and
name of the hearing examiner;
c. Hearing date, time and place;
d. Location of the proposal and street address if applicable;
e. Brief description of the proposal and requested permit;
f. Vicinity map;
g. Citation of the code section requiring public hearing;
h. SEPA determination, if applicable;
i. Procedures for public comment;
j. Appeal procedures when appropriate;
k. The decision being appealed and the name of the appellant,
if applicable;
1. A brief description of the decision being appealed, if
applicable; and
m. A statement of who may participate in the appeal, if
applicable.
Section 4. Section 2.16.100 of the Bainbridge Island Municipal Code is amended to
read as follows:
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. Purpose. The purpose of the public hearing is to review a proposed
project for consistency with the Bainbridge Island Municipal Code,
appropriate elements of the comprehensive plan and all other applicable
law, .and to provide an opportunity for the public to comment on the
proiect and its compliance with the municipal code, the comprehensive
plan and all other applicable law.
B.C. State Environmental Policy Act. The State Environmental Policy Act
(SEPA) and the Bainbridge Island SEPA ordinance (Chapter 16.04
BIMC) may also apply to an action processed under this section.
G:. D__~. 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
Chapter 43.21C RCW and Chapter 16.04 BIMC, the SEPA
threshold determination shall be issued and any required public
comment period shall be completed prior to a public hearing.
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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 on the
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, remand 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 fmal
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, Chapter 43.21C RCW 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.
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t~. E_~. 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. Any rules of
procedure for hearings adopted by the hearing examiner shall be kept on
file with the office of the city clerk and the deparanent of planning and
community development..
g~. F~ 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 relevant, 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.
~ G_:. 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
applicable decision criteria of this code, all other applicable law,
and any necessary documents and approvals.
C~. H__~. 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 working days of the public hearing, unless a longer period is agreed
upon by the hearing examiner and the applicant. If the hearing examiner
and the applicant agree on a longer period for issuance of the written
decision, the examiner shall provide notice of the extension to the
applicant, the city, and any person who testified at the hearing or
submitted written testimony for consideration at the hearing. 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).
t4. I_. Continuation of Hearing. A hearing may be continued to a date certain
without additional notice.
~. J~ Motion for Reconsideration. A motion for reconsideration may be filed
to correct obvious errors. Such motion shall be filed in writing I0 days
from the date the hearing examiner's decision was filed. Such motion
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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.
~. K.__: 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.
~. L__:. Effect of Decision. Subject to the provisions of Section 2.16. I00(/~ M.), the decision of the hearing examiner is the final decision of the city.
~. M. 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 5. Subsection 2.16.130B of the Bainbridge Island Municipal Code is
amended as follows:
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 frame
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.
6. Any rules of procedure for appeal hearings adopted by the hearing examiner
shall be kept on file with the office of the city clerk and the department of planning and
community development, and shall be provided to any person filing an appeal..
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Section 6. Section 1.04.070 of the Bainbridge Island Municipal Code is amended as
follows:
Computation of time. Except when otherwise provided, the time within which
an act is required to be done shall be computed by excluding the first day and
including the last day, unless the last day is Saturday, Sunday or a holiday, in
which case the time period shall run until the end of the following business day.
Section 7. This ordinance shall take effect and be in force five days from and after
its passage, approval and publication as required by law.
PASSED by the City Council this 24m day of April 2003.
APPROVED by the Mayor this 28~ day of April 2003.
Darlene Kord'ofiowy, Mayor/~1
ATTEST/AUTHENTICATE:
Sfisan P. Kasper, City Clerf{
APPROVED AS TO FORM:
Rod P. Kaseguma, City Attorney
FILED WITH THE CITY CLERK: February 5, 2003
PASSED BY THE CITY COUNCIL: April 23, 2003
PUBLISHED: April 30, 2003
EFFECTIVE DATE: May 5, 2003
ORDINANCE NUMBER: 2003-07
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