HomeMy WebLinkAbout2703 Amending Process for Appealing Threshold Determinations of Type V Legislative ActionsOrdinance No. 2703
AN ORDINANCE OF THE CITY OF PORT TOWNSEND AMENDING PORT TOWNSEND
MUNICIPAL CODE SECTION 19.04.280, CLARIFYING THE PROCESS FOR APPEALING
THRESHOLD DETERMINATIONS OF "TYPE V' LEGISLATIVE ACTIONS; AND
CLARIFYING THAT DECISIONS ON APPEALS OF "TYPE V' ACTIONS ARE FINAL AND
THAT FURTHER APPEALS MAY ONLY BE TAKEN JUDICIALLY OR IN THE CASE OF
TYPE V ACTIONS ADOPTING OR AMENDING THE PORT TOWNSEND
COMPREHENSIVE PLAN AND DEVELOPMENT REGULATIONS, SUCH APPEALS
SHALL BE FILED WITH THE GROWTH MANAGEMENT HEARINGS BOARD
SECTION 1. FINDINGS AND RECITALS
WI-IEREAS, in 1996 the City Council adopted Port Townsend Municipal Code (PTMC)
Chapter 20.01, Land Development Administrative Procedures, in order to implement the
Regulatory Reform Act of 1995, Chapter 36.70B RCW; and
WItE~S, consistent with the Regulatory Reform Act of 1995, Chapter 36.70B RCW,
Chapter 20.01 PTMC defines different categories or Utypes" of project permit applications, and
establishes distinct review and approval procedures for these various types of project permit
applications; and
WHEREAS, Section 19.04.280, Appeals, of Chapter 19.04 PTMC, State Environmental
Policy Act, defines the procedures for appealing environmental threshold determinations issued
by the City's SEPA "responsible official," with varying appeal procedures applied to the different
types of project permit applications as defined in Chapter 20.01 PTMC; and
WltEREAS, as currently enacted, Section 19.04.280(C) PTMC indicates that appeals of
threshold determinations relating to "Type V" legislative actions should be processed in the same
manner as appeals of threshold determinations relating to Type III quasi-judicial actions; and
WHEREAS, the language of Section 19.04.280(C) is ambiguous, in that it can be
interpreted to require that: appeals of threshold determinations relating to Type V legislative
actions be consolidated with a single open record public hearing on the merits of the proposed
legislative action, which must occur before the Planning Commission; that additional public
hearings on legislative actions are not permitted (before either the Planning Commission or City
Council); and that the Planning Commission's decision on the appeal of such a threshold
determination may be further appealed to the City Council; and
WI-IEREAS, the express language of the Regulatory Reform Act of 1995, Chapter 36.70B
RCW, and Chapter 20.01 PTMC, Administration of Land Development Regulations, clearly
indicates that Type V legislative actions were never intended to be bound by the procedural
requirements governing "project permit applications,' including those provisions relating to
appeals of threshold determinations on Type III land development permits; and
WHEREAS, the City Council desires that the ambiguity of Section 19.04.280 PTMC be
remedied through amendments which clearly indicate that:
Hearings on appeals of threshold determinations relating to Type V legislative actions
may be, but are not required to be held in conjunction with any hearing on the merits
such an action; and
Hearings on such appeals will be heard by the Planning Commission if related to
adoption or amendment to the comprehensive plan, a subarea plan, or land use
regulations; and
Hearings on such appeals will be heard by the City Council if related to functional
utility plans or any other legislative enactment not within the domain of the Planning
Commission; and
de
Any decision on an appeal of a Type V action, whether made by the Planning
Commission or the City Council, is final, and that except for decisions appealable to
the Growth Management Hearings Board, further appeal may only be taken judicially,
consolidated with any appeal concerning the merits of the Type V action; and
WHEREAS, the City Council finds that these amendments are consistent with the
purposes, intent, and requirements of the Regulatory Reform Act of 1995, Chapter 36.70B RCW,
and Chapter 20.01 PTMC,
NOW, THEREFORE, the City Council of the City of Port Townsend does ordain as
follows:
SECTION H. AME~~ TO SECTION 19.04.280 PTMC
Chapter 19.04, State Environmental Policy Act, Section 19.04.280, Appeals, subsection C, of the
Port Townsend Municipal Code is hereby amended to read as follows:
19.04.280 Appeals.
A. Appeal of a Threshold Determination for Types I and II Permits - Open Record Hearing.
The decision of the responsible official on Types I and II permits making a threshold
determination of nonsignificance, approving a proposal subject to conditions, or denying a
proposal under SEPA's substantive authority may be appealed to the city council for an open
record public hearing, pursuant to PTMC 20.01.230A.2 and B. Any such appeal must be
consolidated with the council decision on the underlying project. Any remands or requests for
reconsideration shall be governed by PTMC 20.01.260 and 20.01.270.
2 Ord. 2703
B. Appeal of Threshold Determination for Type III Projects - Open and Closed Record
Hearing. The decision of the responsible official on Type III permits making a threshold
determination of nonsignificance, approving a proposal subject to conditions, or denying a
proposal under SEPA's substantive authority may be appealed. The open record public hearing
on the SEPA appeal shall be before the planning commission, which shall consider the appeal
together with the decision on the project application in a single, consolidated hearing as further
set forth in PTMC 20.01.220. If the planning commission's decision on the SEPA decision is
appealed to the city council pursuant to subsection (K)(5) below, the closed record hearing on the
SEPA appeal shall be before the city council pursuant to PTMC 20.01.230. Any remands or
requests for reconsideration shall be governed by PTMC 20.01.260 and 20.01.270.
C. Appeals of Threshold Determinations for Type V Actions. '"'--,,,~ ~,~,~,~,,,~--'-'-- ~,,-~ thc
~ ~e d~sion of the ms~nsible offiei~ on ~ V actions may be ~u~ as follows:
1. The hearing on an ap_~ of a threshold determination may be held in conjunction
with any hearing on the merits of the proposed .Type_ V action; provided, however, the re _sponsible
official has the discretion to schedule a separate hearing to hear such app~s;
2. An ap!~d of a threshold determination relating to the adoption of or amendment
to the comprehensive plan. a subarea plan, or land use regulations shall be held by the planning
commission, which body shall make a recommendation to the city council. The city council may
chose, in its discretion, to conduct its own public hearing to consider the ap?.al. In the event the
city council chooses not to conduct its own public hearing, the council shall make its decision
based u.non the planning commission's record;
3. An ap!~d of a threshold determination relating to the adoption of or amendment
to functional utility plans, or any other legislative enactment not specifically enumerated herein,
shall be held by the city council; provided, however, the city council may, in its discretion,
request that the planning commission conduct a hearing regarding the ap!w, al and make a
recommendation to the city council;
4. Appeal of Ci_ty Council's Decision -- GMA Actions. A decision on the city
council's di _s!msition of an ap!~al of a T._vpe V SEPA threshold determination concerning the
adoption or amendment of a comprehensive plan, functional plan, or development regulations as
defined in Chanter 36.70A RCW. shall be consolidated with any appeal on the merits of the final
GMA action, and shall be filed with the Growth Management Hearings Board; and
5. Ans._al of ltV Council s Decision Non-GMA Actions. A decision on the city
council's dis_nosition of an ap?~al of a T.vpe V SEPA threshold determination concerning non-
GMA actions shall be final, and further ap!~al shall be taken judicially, consistent with
3 0rd. 2703
subsection L below; provided, however, the judicial ap_r~al shall be consolidated with any appeal
on the merits of the final Tvoe V action.
[NOTE: NO OTHER CHANGES TO THIS SECTION]
D. Limitations on Appeals for All Types of Permits. When a threshold determination results in a determination
of significance (DS) it shall not be appealable. In addition, issues relating to the adequacy of the EIS and other
procedural issues may not be appealed under this section.
E. Who May Appeal. An applicant or other party of record who may be aggrieved by the responsible official's
determination may appeal the decision as provided in this section; provided, however, a person may appeal only
if they have previously filed written comments to either the pending or threshold determination or on the
underlying project. The term "aggrieved party" shall have the meaning set forth in PTMC 20.01.010.
F. Time to Appeal Administrative Decision. A written statement appealing the threshold determination of the
responsible official must be filed with the BCD department within 15 calendar days of the date of publication
of the threshold determination or, if there is a 15-day comment period under WAC 197-11-340, by 4:00 p.m. of
the last day of the comment period, except that the appeal period shall be 21 calendar days if a SEPA
determination ofnonsignificance is issued concurrently with and as part of the permit decision. When the last day
of the appeal period so computed is a Saturday, Sunday or legal holiday, the comment period shall nm to the next
business day. The notice of appeal shall be delivered to BCD by mail or personal delivery, and must be received
by 4:00 p.m. on the last business day of the appeal period, with the required appeal fee.
G. Form of Appeal. A person or group appealing the decision of the responsible official shall submit the
following to the department:
1. The decision being appealed and a brief statement indicating the facts that establish the appellant's fight to
appeal;
2. A brief statement identifying specific objections to the decision being appealed or identifying specific errors
in fact or conclusion. The appellant shall bear the burden of proving the decision was wrong;
3. The desired outcome or changes to the decision;
4. The name and address of the appellant and Ms/her interest in the matter;
5. Any other information reasonably necessary to make a decision on the appeal; and
6. The appeal fee.
H. Cost of Appeal. The cost of an appeal of the director's decision shall be in the amount set forth in Chapter
20.09 PTMC.
I. Notice. Notice of all appeals shall be mailed to all parties of record not less than 10 days prior to the date of
the public heating to consider the appeal.
J. Scope of Review for Type II Projects. The scope of review by the city council on Type II project SEPA appeals
shall be the same as set forth in subsections (K)(1) through (K)(3) below. The council shall take action and make
findings consistent with PTMC 20.01.230.
K. Scope of Roview for Type III Projects.
1. Planning commission review shall be consolidated with any public heatings related to the underlying permit
action. Planning commission review shall be limited to the following issues related to compliance with the city's
substantive SEPA policies pursuant to PTMC 19.04.240:
a. Issues of council intent with respect to interpretation of the substantive SEPA policies;
b. Issues raised concerning the sufficiency and the appropriateness of the mitigation imposed; and
c. The appropriateness of denial or approval of a proposal based on the substantive SEPA policies.
2. In making its recommendation to the city council, the planning commission shall give deference to and afford
substantial weight to the decision of tho responsible official.
3. The planning commission's review shall be on a de novo basis.
4 Ord. 2703
4. The planning commission shall recommend that the Council affirm, modify or reverse the responsible official's
decision, and shall enter findings and/or conclusions into the record to support the recommendation.
5. City Council Review. Any applicant ,or party of record dissatisfied with the planning commission's
recommendation must appeal the recommendation to the city council, in the form specified in subsection E above.
In the event of such an appeal, the council shall review the commission's recommendation, together with the
commission's recommend_a__tion on the underlying permitting action. Council review shall be based upon the record
developed before the planning commission and shall be on a de novo basis. The city council shall take action
consistent with PTMC 20.01.230.
L. Judicial Appe,_ls. ~ to RCW 43.21C.075, if there is a time period for appealing the underlying permit
aclion, appeals under this chapter shall be commenced within such time period. The city shall give official notice
stating the date and place for commencing an appeal. For all decisions covered by the Land Use Petition Act,
Chapter 36.70C RCW, this time period shall be 21 days from the issuance of the land use decision, as defined
by RCW 36.70C.040(4).
1. Optional limitation period. If there is no time period for appealing the underlying government action, the city,
applicant for or proponent of an action may use a notice of action pursuant to RCW 43.21C.075 and
43.21C.080. The notice shall describe the action and state a time limitation for commencing a challenge to that
actioat The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall
be published by the department, applicant or proponent pursuant to RCW 43.21C.080, and any action to set
aside, enjoin review or otherwise challenge any such governmental action or subsequent governmental action for
which a notice of action is filed and published under this section shall be commenced within 21 days from the date
of the last newspaper publication of the notice pursuant to RCW 43.21C.080.
M. Exemption. This section does not apply to decisions made pursuant to Chapter 90.58 RCW, the Shoreline
Management Act. Appeals of SEPA mitigation measures pertaining to projects subject to Chapter 90.58 RCW
shall be made to the shoreline hearings board along with appeal of the city's shoreline decision.
(Ord. 2703, § 1, 1999; Ord. 2534 § l, 1996; Ord. 2431 § 5, 1994; Ord. 2367 § 7, 1993).
SECTION IH. SEVERABHA-TY
If any provision of this ordinance or its application to any person or circumstance is held invalid, the
remainder of the ordinance, or the application of the provision to other persons or circumstances is
not affected.
SECTION IV. EFFECTIVE DATE
This ordinance shall take effect and be in force five days after the date of its publication in the manner
provided by law.
5 0rd. 2703
Adopted by the City Council of the City of Port Townsend, Washington, at a regular meeting
thereof, held this day of ,1999.
Attest:
Pam Kolacy, City Clerk 67
06/24/99 ca§Ord\{ 1904280.doc}
Ord-2703.doc
Forrest Rambo, Mayor
Approved~ ~~~.._.._~..~.~as to Form:! /
.~/~ahan', City Attorney
6 0rd. 2703