ORD 2003-25 HEARING EXAMINER APPEAL DECISIONS ORDINANCE NO. 2003 - 25
AN ORDINANCE of the City of Bainbridge Island, Washington,
relating to appeals to the city council of hearing examiner
decisions; amending sections 2.16.085(E), 2.16.100(L) and (M),
2.16.150, 3.88.230(G), 15.20.090(E), 15.16.040(E)(1),
16.12.350, 16.12.380(C)(4), 16.12.380 (Figure 7-2), 16.22.115,
18.108.100(B), 18.111.080(B) and 18.111.090; and repealing
section 2.16.140 of the Bainbridge Island Municipal Code.
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON,
DO ORDAIN AS FOLLOWS:
Section 1. Section 2.16.085(E) of the Bainbridge Island Municipal Code is amended
as follows:
E. Notice of Decision and Appeal Period.
1. A notice of decision shall be issued upon a final decision on a
land use application. 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 d'etermin/~tion" and mitigation
conditions as specified in Chapter 16.04 BIMC, if
applicable; and
e. Procedures for appeal under BIMC 2.16.130, if
applicable.
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.
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May 14, 2003
Section 2. Section 2.16.100(L) and (M) of the Bainbridge Island Municipal Code is
amended as follows:
Effect of Decision.
L. 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 Chapter 36.70C RCW.
Section 3. Section 2.16.150 of the Bainbridge Island Municipal Code is amended as
follows:
2.16.150 Review procedures under Chapters 2.16 and 2.18.
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Legislative
Section4. Section 3.88.230(G) of the Bainbridge Island Municipal Code is
amended as follows:
G. The decision of the hearing examiner shall be final unless, within 21 days
after issuance, it is appealed in accordance with Chapter 36.70C RCW.
Section 5. Section 15.16.040(E)(1) of the Bainbridge Island Municipal Code is
amended as follows
E. Variance Procedure.
1. Appeal Board.
a. Pursuant to Section 2.16.100, the hearing examiner shall
hear and decide appeals and requests for variances from
the requirements of this chapter, and appeals alleging error
in any requirement, decision, or determination made by the
building official in the enforcement or administration of
this chapter.
b. The decision of the hearing examiner shall be f'mal unless,
within 21 days after issuance, it is appealed in accordance
with Chapter 36.70C RCW.
c. In passing upon such applications, the app~!cable city
official or appeal entity shall consider all technical
evaluations, all relevant factors, standards specified in
other sections of this chapter, and:
i. The danger that.materifls may be swept Onto other
lands to the injury of others;
ii. The danger to life and property due to flooding or
erosion damage;
iii. The susceptibility of the proposed facility and its
contents to flood damage and the effect of such
damage on the individual owner;
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iv. The importance of the services provided by
proposed facility to the community;
v. The necessity to the facility of a waterfront
location, where applicable;
vi. The availability of alternative locations for the
proposed uses which are not subject to flooding or
erosion damage;
vii. The compatibility of the proposed use with existing
and anticipated development;
viii. The relationship of the proposed use to the
comprehensive plan and floodplain management
program for that area;
ix. The safety of access to the properly in times of
flood for ordinary and emergency vehicles;
x. The expected heights, velocity, duration, rate of
rise, and sediment transport of the floodwaters and
the effects of wave action, if applicable, expected at
the site; and,
xi. The costs of providing governmental services
during and after flood conditions, including
maintenance and repair of public utilities and
facilities such as sewer, gas, electrical and water
systems, and st[eets and?idges.
d. Upon consideration of the above factors and the purposes.
of this chapter, the applicable official or city intity may
attach such conditions to the granting of variances as it
deems necessary to further the purposes of this chapter.
e. The building official shall maintain the records of all
appeal actions and report any variances to the Federal
Insurance Administration upon request.
Section 6. Section 15.20.090(E) of the Bainbridge Island Municipal Code is
amended as follows:
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E. Right of Appeal. All actions of the hearing examiner shall be final arid
conclusive, unless an appeal of the hearing examiner's decision is-filed
pursuant to BIMC 2.16.100.
Section 7. Section 16.12.350 of the Bainbridge Island Municipal Code is amended
as follows:
16.12.350 General.
The administrative system is designed to assign responsibilities for
implementation of the master program and shoreline permit review, to prescribe
an orderly process by which to review proposals and permit applications, and to
ensure that all persons affected by the master program are treated in a fair and
equitable manner. Figure 7-1 illustrates the shoreline substantial development
permit (SSDP) process and Figure 7-2 illustrates the shoreline variance and
conditional use process.
A. Director.
1. The city of Bainbridge Island director of planning and
community development or his/her designee, hereinafter known
as the director, is vested with the following:
a. Overall administrative responsibility for the master
program;
b. Authority to grant statements of exemption from shoreline
permits;
c. Authority to approve, approve with conditions, or deny
shoreline substantial development permits and permit
revisions in accordance with the policies and regulations
of the master program; provided, that the decision may be
appealed in accordance with BIMC 16.12.370;
d. Authority to decide whether a shoreline variance permit
application is minor, qualifying it for administrative
decision; if the shoreline variance is not minor, it will be
processed following the procedures in BIMC
16.12.380.C.4;
e. Authority to approve, approve with conditions, or deny
shoreline variance permit applications determined to be
minor; provided, that the decision may be appealed in
accordance with BIMC 16.12.370;
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f. Authority to refer any application for a shoreline
substantial development permit, or a shoreline variance or
conditional use to the planning commission for a
recommendation; and
g. Authority to determine compliance with Chapter 43.21C
RCW, State Environmental Policy Act, or its successor.
2. The duties and responsibilities of the director shall include:
a. Specifying the required application forms and submittal
requirements including the type, details, and number of
copies for substantial development, conditional use, and
shoreline variance permits. At a minimum, the application
shall include the information required in WAC 173-14-
110 or its successor.
b. Advising interested citizens and applicants of the goals,
policies, regulations, and procedures of this program.
c. Making administrative decisions and interpretations of the
policies and regulations of this program and the Shoreline
Management Act.
d. Determining whether a shoreline substantial development
permit, shoreline conditional use permit, or shoreline
variance permit is required.
e. Collecting applicable fees.
f. Determining that all applications and necessary related
information are provided.
g. Making field inspections.
h. Conducting a thorough review and analysis of permit
applications and related materials, and making written
fmdings and conclusions.
i. Making decisions pursuant to subsection A.1 of this
section.
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j. Referring applications to the planning commission fdr
recommendations when requested by the applicant or
when the director deems appropriate.
k. Submitting applications and all relevant information and
materials along with written findings and
recommendations to the hearing examiner pursuant to
subsection A. 1 of this section.
1. Providing technical and administrative assistance to the
council, as needed, for effective and equitable
implementation of this program and the Act.
m. Providing a summary report of shoreline management
permits issued during the past calendar year to the council
in February of each year. The report should include
findings and conclusions on significant administrative
determinations and appeals, identification of problem
areas, and recommendations on how the master program
can be improved.
n. Proposing amendments to this program as deemed
necessary to more effectively and equitably achieve its
goals and policies.
o. Seeking remedies for alleged violations of this program,
the provisions of the Act, or of conditions of any
approved shoreline permit.
p. Coordinating information with affected agencies.
q. Forwarding shoreline permits to Ecology for filing or
appropriate action.
r. Deciding whether to require any applicant granted a
shoreline permit to post a bond or other acceptable
security to assure that the applicant and/or the applicant's
successors in interest shall adhere to the approved plans
and all conditions attached to the shoreline permit. Such
bonds or securities shall have a face value of at least 100
percent of the estimated development cost, including
attached conditions. Such bonds or securities shall be
approved as to form by the city attorney.
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B. Hearing Examiner.
1. - The city of Bainbridge Island hearing examiner is vested with
authority to:
a. Approve, approve with conditions, or deny shoreline
variance and shoreline conditional use permit applications
after a public hearing and after considering the findings
and recommendations of the director, which shall be
given substantial weight; provided, that decisions may be
appealed in accordance with BIMC 16.12.370(B).
b. Affirm, affn-m with modifications, or reverse decisions on
shoreline substantial development permit applications,
minor shoreline variance applications, and shoreline
exemptions on appeal.
2. Further duties and responsibilities of the hearing examiner shall
include:
a. Ensuring that proper notice is given to appropriate persons
and the public for all hearings before the hearing
examiner.
b. Referring applications to the planning commission for
recommendations, when appropriate.
c. Considering recommendations of the planning commission
when requested by the applicant or the director.
d. Basing all decisions on shoreline permits' and
administrative appeals on the criteria esfabtished in the Act
and the master program.
e. Deciding whether to require any applicant granted a
shoreline permit to post a bond or other acceptable
security to assure that the applicant and/or the applicant's
successors in interest shall adhere to the approved plans
and all conditions attached to the shoreline permit. Such
bond or securities shall have a face value of at least 100
percent of the estimated development cost, including
attached conditions. Such bonds or securities shall be
approved as to form by the city attorney.
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C. City Council.
1. The city council is vested with authority to:
a. Review and act upon any reconunendations of the director for
amendments or revisions of the master program. To become
effective any amendments to the program must be reviewed and
approved by the Department of Ecology, pursuant to RCW
90.58.190 or its successor and Chapter 173-19 WAC or its
successor.
Section 9. Section 16.12.380(C)(4) of the Bainbridge Island Municipal Code is
amended as follows:
4. Applications for shoreline variances not determined by the director to be
minor and all shoreline conditional use permits shall be decided by the
hearing examiner following the procedures in BIMC 2.16.100, or its
successor, supplemented by the following provisions:
a. The director shall prepare a staff report identifying the approval
criteria, providing available information on the application,
analyzing the proposal, making a recommendation on the
proposal, making recommended findings of fact and conclusions
of law, and including any other information or recommendations
which the director believes are appropriate: The director shall
send a copy of the staff report to the applicant and the hearing
examiner.
b. The director may refer the application to the planning
commission for a recommendation.
c. In making the decision, the hearing examiner shall consider the
applicable criteria in subsections B and C of this section. The
applicant has the burden of proof to show that the proposal
complies with the decision criteria and all applicable
requirements. (RCW 90.58.140(7) or its successor.)
d. The hearing examiner may refer the application to the planning
commission for a recommendation.
e. The decision of the hearing examiner shall be the final city
decision, and may be appealed in accordance with BIMC
16.12.380(C)(5)-(8)
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Section 10. Section 16.12.380 (Figure 7.2), of the Bainbridge Island Municipal Code
is amended as follows:
The reference to "Appeal to City Council" is deleted.
Section 11. Section 16.22.115 of the Bainbridge Island Municipal Code is amended
as follows:
16.22.115 Appeals.
The decision of the hearing examiner shall be final unless, within 21 days of
issuance, it is appealed in accordance with Chapter 36.70C RCW.
Section 12. Section 18.108.100(B) of the Bainbridge Island Municipal Code is
amended as follows:
B. Appeal of a Hearing Examiner Decision. A decision on a regular
conditional use shall be final unless, within 21 days of issuance, it is
appealed in accordance with Chapter 36.70C RCW.
Section 13. Section 18.111.080(B) of the Bainbridge Island Municipal Code is
amended as follows:
B. Appeal of a Hearing Examiner Decision. A decision on a regular
variance shall be final unless, within 21 days of issuance, it is appealed
in accordance with Chapter 36.70C RCW.
Section 14. Section 18.111.090 of the Bainbridge Island Municipal Code is amended
as follows:
The reference to "Appeal to City Council" is deleted.
Section 15. Section 2.16.140 of the Bainbridge Island Municipal Code is repealed.
Section 16. 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 llth day of June, 2003.
APPROVED by the Mayor this 12th day of June, 2003.
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Darlene Kordonowy, Mayor
ATTEST/AUTHENTICATE:
~usan Kasper, City Clerk ~
APPROVED AS TO FORM:
Rod Kaseguma, City Attorney
FILED WITH THE CITY CLERK: May 7, 2003
PASSED BY THE CITY COUNCIL: June 11, 2003
PUBLISHED: June 18, 2003
EFFECTIVE DATE: June 23, 2003
ORDINANCE NUMBER: 2003-25
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