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HomeMy WebLinkAbout2651 Hearing ExaminerOrdinance No. o7 .5 / AN ORDINANCE OF THE CITY OF PORT TOWNSEND PERTAINING TO CHAPTER 20.01, LAND DEVELOPMENT ADMINISTRATIVE PROCEDURES, AMENDING SECTIONS 20.01.030, 20.01.040, 20.01.220, AND 20.01.270; AND CREATING A NEW SECTION 20.01.045, SPECIAL APPOINTMENT OF HEARING EXAMINER-SCOPE OF AUTHORITY, AND CREATING A NEW SECTION 20.01.235, HEARING EXAMINER REVIEW AND DECISION (TYPE HI, PTMC 20.01.045), OF THE PORT TOWNSEND MUNICIPAL CODE, TO AUTHORIZE THE HEARING EXAMINER TO CONDUCT HEARINGS AND MAKE FINAL DECISIONS REGARDING LAND USE PERMIT APPLICATIONS INVOLVING POTENTIAL APPEARANCE OF FAIRNESS CONCERNS AND MATI~ERS INVOLVING COMPLEX PROJECTS REQUIRING SPECIAL EXPERTISE; AND AMENDING PTMC 20.01.330 TO CLARIFY APPLICABILITY OF CHAPTER 20.01 PTMC TO ALL LAND USE PEI~AVIIT APPLICATION PROCEDURES SECTION 1. FINDINGS AND RECITALS 1. On May 6, 1996, by Ordinance 2521, the Port Townsend City Council adopted Chapter 20.01 PTMC, implementing the Washington Regulatory Reform Act, ESHB 1724 (Chapter 36.70B RCW) (the "Act"). By adopting Ordinance 2521 (Chapter 20.01 lYrMC), the City established an integrated and consolidated review and decisionmaking process for all land use and development project permits. Further, in adopting Ordinance 2521, the City established procedures to integrate and implement the Growth Management Act requiring that development project applications be consistent with Port Townsend's Comprehensive Plan and implementing regulations; and 2. One of the fundamental goals of the Act was to provide for substantial notification to project applicants and the public -- of all project review and hearing procedures -- and thereby provide substantial assurance of procedural due process protection; and 3. By Chapter 2.14 PTMC and Chapter 1.14 PTMC, the Port Townsend City Council has implemented a "limited scope" hearing examiner system, to provide expeditious permit processing; and 4. In enacting ESI-IB 1724, Section 416(3), the Washington State Legislature authorized municipalities to provide by ordinance or resolution, for the same or a different decisionmaking or heating body for different categories of project permits. The legislature allowed municipalities the flexibility to determine the appropriate decision-making bodies to serve local needs. The legislature required municipalities to specify which decisonmakers would make decisions, issue recommendations, conduct hearings, and decide appeals; and 5. RCW 35A.63.170 specifically enables code cities, such as Port Townsend, to adopt hearing examiner systems, allowing the City Council the right to vest in a hearing examiner the power to hear and decide those issues the City Council believes, in its exclusive discretion, should be reviewed and decided by a hearing examiner; and 6. RCW 35A.63.170 requires the City Council to prescribe procedures to be followed by the hearing examiner, including specifying the legal effect of decisions made by the examiner. RCW 35A.63.170 permits the Council to vary the legal effect of such decisions for different classes of applications, within the discretion of the City Council; and 7. RCW 35A.63.170 enables the City Council to grant the hearing examiner the authority to make a final decision on behalf of the City, so long as such a decision is made in writing, including findings and conclusions, based upon the record, supporting the decision. The law requires that the examiner's decisions be made within 10 working days following the conclusion of all testimonial hearings, unless a longer period is mutually agreed in writing by the applicant and the examiner; and 8. The Port Townsend City Council desires to provide the maximum level of fairness in the City's decisionmaking on land use and development permit application process, according substantial protection to the procedural and substantive due process rights of applicants and all other affected parties. Therefore, the City Council deems it appropriate to enable the Council, on a case-by-case basis, to refer specific applications to the examiner for hearings and final decisions, when an application may raise a potential appearance of fairness concern, and/or in circumstances when the Council finds that a particular land use application involves complex legal, factual, and planning issues, necessitating special expertise in the decision maker; and 9. In adopting Chapter 20.01 PTMC, the Council directed that in the event of conflict with any other land use permitting procedures, the procedures set forth in Chapter 20.01 PTMC would prevail. As a matter of clarification, and without adding scope or applicability to Chapter 20.01 PTMC, the Council hereby amends PTMC 20.01.330(B) to explicitly include the Port Townsend Shoreline Master Program within the conflict reconciliation portion of the code; and NOW, THEREFORE, the City Council of the City of Port Townsend does ordain as follows: SECTION 2. Section 20.01.030, Determination of proper type of procedure, subsection C, Chapter 20.01, Land development administrative procedures, of the Port Townsend Municipal Code is hereby amended to read as follows: 20.01.030 Determination of proper type of procedure. A. Determination by Director. The director of the building and community development department ("BCD") or his/her designee (hereinafter the "director") shall determine the proper procedure for all development applications. If there is a question as to the appropriate type of procedure, the director shall resolve it in favor of the higher procedure type number. 2 o a. 65/ B. Optional Consolidated Permit Processing. An application that involves two or more procedures may be processed collectively under the highest numbered procedure required for any part of the application or processed individually under each of the procedures identified by the code. The applicant may determine whether the application shall be processed collectively or individually. If the application is processed under the individual procedure option, the highest numbered type procedure must be processed prior to the subsequent lower numbered procedure. C. Decisionmaker(s). Applications processed in accordance with subsection B of this section which have the same highest numbered procedure but are assigned different hearing bodies shall be heard collectively by the highest decisionmaker(s). The city council is the highest, followed by the planning commission or hearing examiner, as applicable, and then the director~ however, where the heating examiner is granted final decision-making authority, pursuant to the terms of this chapter; the hearing examiner is considered the Uhighest decisionmaker.' Joint public hearings with other agencies shall be processed according to PTMC 20.01.050. D. Administrator. Upon issuance of a determination of completeness described in PTMC 20.01.110, the director shall assign an administrator to the project who will coordinate and be re~,I~onsible for all phases of development application administration. At any stage during project review the director may assign a different project administrator. E. SEPA Review. Project review conducted pursuant to the State Environmental Policy Act (SEPA), Chapter 43.21C RCW, shall occur concurrently with project review set forth in this chapter. The SEPA review process, including all public comment procedures, is set forth in Chapter 19.04 PTMC. Nothing contained in this chapter shall be construed to restrict the need for full environmental review in accordance with Chapters 19.04 (SEPA) and 19.05 (Environmentally sensitive areas) PTMC. (Ord. ~ § 2, 1998; Ord. 2592 § 1, 1997; Ord. 2521 § 1, 1996). SECTION 3. SectiOn 20.01.040, Project permit application framework, is hereby amended to read as follows: [Table follows] 3 Ord. 20.01.040 Project permit application framework. Table 1 - Permits/Decisions Type I1 Type H Type IH Type IV Type V Permitted uses not Short subdivisions Preliminary full Final plats Port Townsend requiring notice of subdivisions; plat comprehensive plan application (e.g., building vacations and amendments permits, etc.) alterations Binding site plans Lot line adjustments Recognition/subdivision Final planned Development resulting in lot of 10 or more lots of unit regulations reorientation record developments Lot line adjustments Revisions to Major CUPs Zoning text shoreline amendments and management permits zoning map amendments Minor amendments to Environmentally Shoreline management Annexations planned unit sensitive area (ESA) permits developments (PUDs) permits Minor modifications to Minor variances PUDs and major Shoreline master approved preliminary amendments to PUDs program (SMP) short and full amendments subdivisions/plats Sign permits Minor conditional Major variances Other land use and use permits (CUPs) utility plans and amendments Temporary uses Site-specific rezones cousistent with the Port Townsend comprehensive plan Recognition and certification of 9 or fewer lots of record Street use permits Land clearing/grading Multiple family development permits Home occupations Shoreline exemptions Street development Permits ~ Assignment of a project to Type I status shall not limit or restrict the public notice and procedures available pursuant to RC W 43.21C (SEPA) and Chapter 19.04 P TMC if a project is deemed to be subject to SEPA review. 4 Ord. Table 2 - Action Type Procedure Project Permit Applications (Type I - IV) Legislative Type I Type H Type IH1 Type IV Type V Recommendation N/A N/A Planning N/A Planning commission, made by: commission except for utility plansa-t Final deei_sion Admin. BCD director City council City City council made by: council Notice of No Yes Yes No N/A application: No Only if director's Yes, before No Yes, before planning decision is planning commission to make Open record appealed, open commission, to recommendation to city public hearing: record public wake council, except for hearing before recommendation to utility plans~ a hearing examiner cit~ council Closed record No No Yes, before city N/A Yes, or council could appeal/final council hold its own hearing decision: Judicial appeal: Yes Yes Yes Yes Yes Footnote 1: In situations where the city. council assigns s?..cific matters to the heating examiner by resolution adopted in accordance with PTMC 20.01.045, the examiner shall tlc the final decisionmaker, without recommendation from the planning commission, and without a closed record hearing or a__opeal to the city. council. In such situations, the hearing before the examiner shall be an open record public hearing, conducted in accordance with PTMC 20.01.235, subject to judicial Footnote 2 {: Type V Land Use plans are subject to review and recommendation by the planning commission. However, the following utility plans shall not be reviewed or considered by the planning commission: wastewater (sewer) plans; stormwater plans; water system plans; and solid waste plans. The city council's utility committee shall conduct review and hold one or more open record public hearing(s) on all such plans prior to deliberation before the full city council. At the time of consideration by the full city council, the utility committee shall make a recommendation to the city council regarding utility plans. 5 Ord. Footnote 3 ~: The planning commission shall not hold public hearings regarding the utility plans described herein. The city council's utility committee shall hold one or more open record public hearing(s) on all such plans prior to consideration before the full city council. Summary of Decisionmaking Type I - Administrative without notice. Type II - Administrative with notice, appealable to the hearing examiner. Type III - Notice and open record public hearing before planning commission, with recommendation to city council. Final decision by city council, after closed public hearing (including appeals). Type III - Hearing Examiner Review. For applications reviewed in accordance with PTMC 20.01.045, notice and open record public heating before the heating examiner. Hearing examiner serves as the final decisionmaker. Type IV - Closed record hearing and decision by city council during regular council meeting. Type V - Except for utility plans as described in this section, notice and public hearing before planning commission, with planning commission recommendation to city council. City council also provides notice and public hearing before making final legislative decision. (See Article IV, PTMC 20.01.200 through 20.01.280 for detailed description of project review and approval process.) (Ord. § 3, 1998; Ord. 2634 § 1, 1998; Ord. 2592, § 6, 1997; Ord. 2521 § 1, 1996). SECTION 4. A new Section 20.01.045, Special appointment of the hearing examiner -- Scope of authority, is created to read as follows: 20.01.045 Special appointment of the hearing examiner - Scope of authority. On a case-by-case basis, the Port Townsend city council may refer a_ay Type IH land use permit application to the hearing examiner in accordance with this section. A. Resolution -- Findings. During a regularly scheduled city council meeting, the council may refer any Type III land use permit application to the hearing examiner by adopting a resolution making the following findings: 1. In the exclusive, discretionary judgment of the city council, the application may involve potential a~ce of fairness concerns related to the participation of either the planning commission or the city council as decision makers; and/or 6 Ord. 2. In the exclusive, discretionary judgment of the city council, the application seeks permits for a property development project which will involve complex legal, factual and planning issues, necessitating special expertise in the decision maker. B. Timing. The council shall adopt the resolution referring an application to the hearing examiner under the provisions of this section at any time prior to publication of the notice of public hearing. C. Discretion of the Council. The referral of applications to the hearing examiner pursuant to this section 20.01.045 shall be for the exclusive purpose of affording applicants and other parties maximum fairness and procedural due process protection, and shall not affect the substantive applicability of local, state of federal land use plans, policies or ordinances to any permit application. The decision to refer any application to the examiner rests within the exclusive discretion of the city council. D. No Notice or Hearing Required. Because the council's decision to refer (or not to refer) land use permit applications to the examiner rests in the council's discretionary decision to afford all parties with maximum procedural due process protection, the city is not required to provide prior notice of the council's decision to any affected party. The council shall not be required to hold a public hearing on such decisions. The decision of the city council made pursuant to this section shall not be an appealable administrative decision. (Ord. __ § 4, 1998.) SECTION 5. Section 20.01.220, Planning commission review and recommendation (Type III), subsection A, is hereby amended as follows: 20.01.220 Planning commi~ion review and recommendation (Type IH). A. With the exception of.~ermit a.rrplications referred to the hearing examiner in accordance with PTMC 20.01.045, t~he planning commission shall review and make findings, conclusions and recommendations to the city council on all Type III permit applications. B. Staff Report. The administrator shall prepare a staff report on the proposed development or action summarizing the comments and recommendations of city departments, the historic preservation committee (HPC), affected agencies and special districts, and evaluating the development's consistency with the city's development code, adopted plans and regulations. The staff report shall include proposed findings, conclusions and recommendations for disposition of the development application. The staff report shall include and consider all written public comments on the application. C. Planning Commission Hearing. The planning commission shall conduct a public hearing on Type III development proposals for the purpose of taking testimony, hearing evidence, considering the facts germane to the proposal, and evaluating the proposal for consistency with the city's development code, adopted plans and regulations. Notice of the planning commission hearing shall be in accordance with PTMC 20.01.190. 'All appeals of administrative project permit decisions, including appeals of SEPA threshold determinations made pursuant to Chapter 19.04 PTMC (other than determinations of significance), shall be considered together with the decision on the project application in a single, consolidated public hearing. 7 Ord. D. Required Findings. In addition to the approval criteria listed in PTMC Tire 17, the planning commission shall not approve a proposed development unless it first makes the following findings and conclusions: 1. The development is consistent with the Port Townsend comprehensive plan and meets the requirements and intent of the Port Townsend Municipal Code; 2. The development is not detrimental to the public health, safety and welfare; 3. The development adequately mitigates impacts identified under Chapters 19.04 (SEPA) and 19.05 (Environmentally sensitive areas) PTMC; 4. For subdivision applications, findings and conclusions shall be issued in conformance with PTMC Title 18 and RCW 58.17.110. E. Recommendation. The planning commission shall adopt findings and conclusions and shall either recommend approval, approval subject to conditions, or denial (with or without prejudice) of the proposed development application. (Ord. ~ § 5, 1998; Ord. 2521 § 1, 1996). SECTION 6. A new Section 20.01.235, Hearing examiner review and decision (Type IH, PTMC 20.01.045) is created to read as follows: 20.01.235 Hearing examiner review and decision (Type IH, PTMC 20.01.0453. A. In matters referred to the hearing examiner in accordance with PTMC 20.01.045, the hearing examiner shall review and make findings, conclusions and issue final decisions on all Type HI permit applications referred to the examiner. B. Staff Report. The administrator shall prepare a staff report on the proposed development or action summarizing the comments and recommendations of city departments, the historic preservation committee (I-IPC), affected agencies and special districts, and evaluating the development's consistency with the city's development code, adopted plans and regulations. If requested by the examiner, the staff report shall include proposed findings, conclusions and recommendations for disposition of the development application. The staff report shall include and consider all written public comments on the application. C. Hearing Examiner Hearing. The hearing examiner shall conduct a public heating on Type III development proposals referred to the examiner for the purpose of taking testimony, hearing evidence, considering the facts germane to the proposal, and evaluating the proposal for consistency with the city's development code, adopted plans and regulations. Notice of the hearing examiner hearing shall be in accordance with PTMC 20.01.190. All appeals of administrative project permit decisions, including appeals of SEPA threshold determinations made pursuant to Chapter 19.04 PTMC (other than determinations of significance), shall be considered together with the decision on the project application in a single, consolidated public hearing. D. Required Findings. In addition to the approval criteria listed in PTMC Title 17, the hearing examiner shall not approve a proposed development unless the examiner first makes the following findings and conclusions: 1. The development is consistent with the Port Townsend comprehensive plan and meets the requirements and intent of the Port Townsend Municipal Code; 8 Ord. 2. The development is not detrimental to the public health, safety and welfare; 3. The development adequately mitigates impacts identified under Chapters 19.04 (SEPA) and 19.05 (Environmentally sensitive areas) PTMC; and 4. For subdivision applications, findings and conclusions shall be issued in conformance with PTMC Title 18 and RCW 58.17.110. E. Final Decision. In the examiner's decision regarding Type III actions, the hearing examiner shall adopt written findings and conclusions. 1. The heating examiner's decision following closure of an open record public hearing shall include one of the following actions: a. Approve; b. Approve with conditions; c. Deny without prejudice (reapplication or resubmittal is permitted); d. Deny with prejudice (reapplication or resubmittal is not allowed for one year); or e. Remand for further proceedings in accordance with PTMC 20.01.270. 2. A hearing examiner's decision following an open public record appeal hearing (consolidated with the hearing regarding the application) shall include one of the following actions: a. Grant the appeal in whole or in part; b. Deny the appeal in whole or in part; c. Remand for further proceedings in accordance with PT/vIC 20.01.270. 3. The hearing examiner's decision shall be issued within 10 working days from the date the examiner closes the public hearing record, unless a longer period is mutually agreed to in writing by an applicant and the hearing examiner. The decision shall be a final decision, appealable in accordance with PTMC 20.01.320. (Ord. § 6, 1998). SECTION 7. Section 20.01.270, Remand, is hereby amended as follows: 20.01.270 Remand. In the event the city council determines that the public hearing record, the record on appeal as applicable, are insufficient or otherwise flawed, the council may remand the matter back to the planning commission or director, as applicable, to correct the deficiencies. The council shall specify the items or issues to be considered and the time frame for completing the additional work. The council may hold an open record public hearing on an appeal of a planning commission recommendation only for the limited purposes identified in RCW 34.05.562(1) (involving allegations challenging the legal validity of the planning commission proceedings). In appeals of Type II decisions and in all applications referred to the examiner pursuant to PTMC 20.01.045, the hearing examiner may remand the director's recommendation or decision to the director to correct any deficiencies. (Ord. § 7, 1998; Ord. 2592 § 9, 1997; Ord. 2521 § 1, 1996). SECTION 8. Section 20.01.330, Effective date - Severability, subsection B, is hereby amended as follows: 9 Ord. 20.01.330 Effective date - Severability. A. Effective Date. This Chapter 20.01 PTMC shall be effective on June 1, 1996; provided however, all complete land development applications meeting all requirements of the Port Townsend Municipal Code filed on or after April 1, 1996, shall be subject to the requirement of a single, consolidated open record public heating, including the requirements set forth in PTMC 20.01.200 through 20.01.320. B. Conflict with Other Procedures. In the event of a conflict in project application and/or public heating procedures found elsewhere in the Port Townsend Municipal Code or found in the Port Townsend Shoreline Master Program, and the requirements of this Chapter 20.01 PTMC, the requirements and procedures set forth in this Chapter 20.01 PTMC shall prevail. C. Severability. If any clause, sentence, paragraph, section or part of this Chapter 20.01 PTMC or its application to any person or circumstance is held to be invalid or unconstitutional by a court of competent jurisdiction, such order or judgment shall not affect the validity or constitutionality of the remainder of any part of this Chapter 20.01 PTMC. To this end, the provisions of each clause, sentence, paragraph, section or part of this law are declared severable. (Ord. § 8, 1998; Ord. 2521 § 1, 1996). SECTION 9. Severability. If any clause, sentence, paragraph, section or part of this Ordinance or its application to any person or circumstance is held to be invalid or unconstitutional by a court of competent jurisdiction, such order or judgment shall not affect the validity or constitutionality of the remainder of any part of this Ordinance. To this end, the provisions of each clause, sentence, paragraph, section or part of this law are declared severable. This ordinance shall take effect and be in force five days after the date of its publication in the manner provided by law. Read for the first, second, and third times and adopted by the City Council of the City of Port Townsend, Washington, at a regular meeting thereof, held this 15th day of June, 1998. Attest: am Kolacy, City Cler~k 06/10/98 Ord\{Ch20-01 f. doc} Ju~)~/McCulloch, Mayor ~i'm{ , , City Attorney 10 Ord. ~, S !