Dupont City Zoning Code
Division VII
Administration
(Repealed by Ord. 05-790)
§ 25.175.010 Types of project permit applications.
(1)
Procedures for Processing Project Permits. For the purpose of project permit processing, all development permit applications shall be classified as one of the following: Type I, Type II, Type III or Type IV. Legislative decisions are Type V actions, and are addressed in subsection (5) of this section. Exclusions from the requirements of project permit application processing are contained in subsection (7) of this section.
(2)
Determination of Proper Procedure Type.
(a)
The planning director or his/her designee (hereinafter the “director”) shall determine the proper procedure for all development applications. Questions concerning the appropriate procedure shall be resolved in favor of the higher numbered procedure.
(b)
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 may be processed individually under each of the application procedures identified in subsection (4) of this section. The applicant may determine whether the application will be processed collectively or individually. If the applications are processed individually the director shall determine which procedure shall be undertaken first and the sequence of the other procedures so the project may be processed in as concurrent a fashion as possible.
(c)
Applications processed in accordance with subsection (2)(b) of this section which have the same procedure number, but are assigned to different hearing bodies, shall be heard collectively by the highest decision maker; the city council being the highest body, followed by the hearing examiner and then the director. Joint public hearings with other agencies shall be processed according to subsection (4) of this section.
(3)
The director of community development, or designee, may issue a written interpretation for any section of DMC Titles 23, Environment, 24, Subdivisions, or 25, Land Use Code, at any such time as the code is silent regarding an issue, duplicative or conflicts within itself. Such interpretation shall be processed as a Type I action and may be appealed to the hearing examiner.
(4)
Joint Public Hearings with Other Governmental Entities for Type III Project Permit Applications.
(a)
The director may combine any public hearing on a Type III project permit application with any hearing that may be held by another local, state, regional, federal, or other agency, on the proposed action, as long as the hearing is held within the city limits, and the requirements of subsection (4)(c) of this section are met. A “Project Permit Summary: Action Type” table is included below.
Project Permit Summary: Action Type | ||||
|---|---|---|---|---|
Type I | Type II | Type III | Type IV | Type V |
• Permitted and accessory uses not requiring site plan review. • Short plat, short plat amendment. • Boundary line adjustment. • Lot line elimination. • Design review. • Administrative interpretation. • Administrative variance. • Minor amendment to site plan. • Time extension. • Home occupation. • Temporary use. • Sign permit. • Landscape plan and plan modification. | • All site plan reviews and approvals with exceptions pursuant to Chapter 25.150 DMC. • Major amendment to Type II site plan. • Commercial district: drive thru window, utilities as designated in DMC § 25.25.020, attached wireless facilities, and open-air vending. • Office district: service uses less than 10 percent of main building, utilities as designated in DMC § 25.30.020. • Mixed use village: multifamily, nonresidential, and mixed use buildings. | • Preliminary plat. • Plat alteration. • Site plan other than Type II pursuant to DMC § 25.150.020. • Major amendment to site plan other than Type II. • Conditional use. • Variance. • Site-specific reclassification. • Binding site plan. • Shoreline permit. • Shoreline conditional use or variance. • Mineral resource extraction. | • Final plat. | • Comprehensive plan. o Text amendment. o Map amendment. • Land use code. o Text amendment. o Map amendment. |
Decision by: | ||||
Community Development Director | Community Development Director | Hearing Examiner | City Council | City Council |
Appeal to: | ||||
Hearing Examiner | Hearing Examiner | |||
Pierce County Court | Pierce County Court | Pierce County Court | Pierce County Court | Pierce County Court |
(b)
The applicant may request that the public hearing on a permit application be combined as long as the joint hearing can be held within the time periods set forth in this title. In the alternative, the applicant may agree to a particular schedule if that additional time is needed in order to complete the hearings. A “Development Permit Application Processing Procedure by Type” diagram is included below.
 |
(c)
Prerequisites to Joint Public Hearing. A joint public hearing may be held with another local, state, regional, federal or other agency and the city, when:
(i)
The other agency is not expressly prohibited by statute from doing so;
(ii)
Sufficient notice of the hearing is given to meet each of the agencies' adopted notice requirements as set forth in statutes, ordinances, or rules;
(iii)
The agency has received the necessary information about the proposed project from the applicant in enough time to hold its hearing at the same time as the city hearing; or
(iv)
The hearing is held within the geographic boundary of the city.
(5)
Legislative Decisions.
(a)
The following decisions are legislative, and are not subject to the procedures in this title, unless otherwise specified:
(i)
Land use code text and development regulation amendments;
(ii)
Area-wide rezones to implement new city policies; and
(iii)
Adoption of the comprehensive plan and any plan amendments.
(b)
The planning commission shall hold a public hearing and make recommendations to the city council on the decisions in this section. The public hearing shall be held in accordance with the requirements of DMC § 25.175.050.
(c)
City Council. The city council may consider the planning commission's recommendation in a public meeting or hold a separate public hearing on the matter held in accordance with the requirements of DMC § 25.175.050.
(6)
Legislative Enactments Not Restricted. Nothing in this chapter or the permit processing procedures shall limit the authority of the city council to make changes to the city's comprehensive plan, or the city's development regulations as part of the annual revision process.
(7)
Exemptions from Project Permit Application Processing.
(a)
Whenever a permit or approval in the DuPont Municipal Code has been designated as a Type I, II, III or IV permit, the procedures in this title shall be followed in project permit processing. The following permits or approvals are specifically excluded from the procedures set forth in this title:
(i)
Landmark designations;
(ii)
Street vacations;
(iii)
Street use permits;
(b)
Pursuant to RCW 36.70B.140(2), building permits, boundary line adjustments or other construction permits, or similar administrative approvals categorically exempt from environmental review under SEPA (Chapter 43.21C RCW and the city's SEPA/environmental policy ordinance, Chapter 23.01 DMC), or permits/approvals for which environmental review has been completed in connection with other project permits, are excluded from the following procedures:
(i)
Notice of application (DMC § 25.175.020(4)) unless an open record hearing is allowed on the project permit decision;
(ii)
Except as provided in RCW 36.70B.140, optional consolidated project permit review processing (this section);
(iii)
Joint public hearings (subsection (4) of this section);
(iv)
Single report stating all of the decisions and recommendations made as of the date of the report that do not require an open public record hearing (DMC § 25.175.050);
(v)
Notice of decision (DMC § 25.175.050(8)).
(Ord. 02-707 § 1; Ord. 03-736 § 10; Ord. 05-790 §§ 12, 13; Ord. 18-1034 § 2 (Exhs. 6, 7); Ord. 19-1060 § 2 (Exh. A))
§ 25.175.020 Processing Type I – IV project permit applications.
(1)
Mandatory Preapplication Review.
(a)
Prior to filing applications for development project permit that requires a short plat, Type II, III, or IV procedure as specified by DMC § 25.175.010(4), the applicant shall file a preapplication review for the specific development project. The purpose of the preapplication review is to acquaint the applicant with the requirements of the DuPont Municipal Code.
(b)
The preapplication submittal shall include:
(i)
Conceptual site plan showing proposed building location, access, parking area and storm drainage concept;
(ii)
Written narrative describing intended use of the site, general size and height of the building, estimated hours of operation and approximate total number of employees and employees per shift, if applicable.
(c)
The preapplication meeting shall be held as expeditiously as practicable depending on the submittal time in relation to the scheduling of the city's technical review committee meetings.
(d)
At the preapplication meeting the director shall provide the applicant:
(i)
A form that lists the requirements for a complete application;
(ii)
A general summary of the procedures to be used to process the application;
(iii)
References to the relevant code provisions or development standards that may apply to approval of the application;
(iv)
The city's design guidelines;
(v)
Other relevant information;
(vi)
Filing fee as established in the city's adopted fee schedule.
(e)
Neither the discussions at the preapplication meeting nor the information provided on the form sent by the director to the applicant shall bind the director in any manner or prevent the director's future application or enforcement of all applicable codes, ordinances and regulations.
(2)
Development Project Permit Application. Applications for development project permits shall be submitted on forms provided by the director. An application shall consist of all materials required by the applicable development regulations, and shall include the following general information:
(a)
A completed project permit application form;
(b)
A verified statement by the applicant that the property affected by the application is in the exclusive ownership of the applicant, or that the applicant has submitted the application with the consent of all owners of the affected property;
(c)
A property and/or legal description of the site for all applications, as required by the applicable development regulations;
(d)
The applicable fee;
(e)
Evidence of adequate water supply as required by RCW 19.27.097;
(f)
Evidence of sewer availability;
(g)
Written narrative demonstrating how the development proposal meets the applicable decisional criteria; and
(h)
All material specified in the preapplication review.
(3)
Submission and Acceptance of Development Project Permit Application.
(a)
Within 28 days after receiving a development project permit application, the city shall mail to the applicant a determination that states either: the application is complete; or the application is incomplete and what is necessary to make the application complete. Project applications shall not be officially accepted until complete.
(b)
To the extent known by the city other agencies with jurisdiction over the project shall be identified in the determination of completeness.
(c)
A project permit application is complete for purposes of this section when it meets the submission requirements in subsection (2) of this section, and the submission requirements of the applicable development regulations. The determination of completeness shall be made when the application is sufficiently complete for review even though additional information may be required or project modifications may be undertaken subsequently. The director's determination of completeness shall not preclude the director's ability to request additional information or studies whenever new information is required, or substantial changes are made to the proposed project.
(d)
Incomplete Applications.
(i)
Whenever the applicant receives a determination from the city that an application is not complete, the applicant shall have 90 days to submit the necessary information. Within 14 days after an applicant has submitted the requested additional information, the director shall make a determination of completeness and notify the applicant in the manner provided in subsection (3)(a) of this section.
(ii)
If the applicant does not submit the additional information requested within the 90-day period, the director shall make findings and issue a decision, according to the Type I procedure described in DMC § 25.175.010(4), that the application has lapsed for lack of information necessary to complete the review.
(iii)
When the director determines that an application has lapsed because the applicant has failed to submit required information within the necessary time period, the applicant may request a refund of the application fee remaining after the city's determination of completeness.
(e)
A development project permit application shall be deemed complete 28 days after filing a development project permit application if the director does not provide a written determination to the applicant that the application is incomplete as provided in subsection (3)(a) of this section.
(4)
Notice of Application.
(a)
A notice of application is only required for Type II and III project permit applications. The notice of application shall be provided to all city departments and agencies with jurisdiction of all Type II and III project permit applications.
(b)
Public Issuance of Notice of Application.
(i)
Within three days after the city has made a determination of completeness pursuant to subsection (3) of this section, the director shall issue a notice of application.
(ii)
The notice shall be published in the city's official newspaper or in a newspaper of general circulation, and posted on the city's official notice board.
(iii)
For a Type III application, the notice shall be posted on the site by the applicant as specified by the director.
(c)
The notice of application shall include:
(i)
The date of submission of the initial application, the date of the notice of completion and acceptance of the application, and the date of the notice of application;
(ii)
A description of the proposed project and a list of the project permits requested in the application and, if applicable, a list of any studies requested under RCW 36.70B.070 or 36.70B.090;
(iii)
For a Type III application, the notice shall be posted on the site by the applicant as specified by the director;
(iv)
A description of existing environmental documents that evaluate the proposed project, and, if not otherwise stated on the document providing notice of application, the location where the application and any studies can be reviewed. If a threshold determination has been made, or is expected to be made pursuant to WAC 197-11355, the comment period may be combined and run concurrently with the comment period for the notice of application pursuant to RCW 36.70B.110(1);
(v)
A statement setting forth: the time for the public comment period, which shall be 14 days following the date of notice of application; the right of any person to comment on the application, receive notice of and participate in any hearings, and request a copy of the decision on the application; and any appeal rights;
(vi)
The date, time, place and type of any public hearing required by this chapter or applicable state or federal law;
(vii)
A statement of the preliminary determination of consistency required by DMC § 25.175.040(1), if one has been made at the time of notice, and of those development regulations that will be used for project mitigation and as provided in Chapter 22.01 DMC;
(viii)
Any other information determined appropriate by the director such as the director's threshold determination, if complete at the time of issuance of the notice of application;
(ix)
If an open record predecision hearing is required for the requested development project permit, the notice of the application shall be provided at least 15 days prior to the open record hearing.
(d)
Public Comment on the Notice of Application. All public comments received on the notice of application must be received in the department of planning by 5:00 p.m. on the last day of the comment period. Comments may be submitted via mail, personally delivered to the department of community development, by facsimile or via electronic mail to the address designated by the director; provided, that mailed comments received after the comment period has expired will not be accepted. Comments should be as specific as possible.
(e)
SEPA Exempt Projects. A notice of application shall not be required for development project permits that are categorically exempt under Chapter 43.21C RCW, unless an open record appeal hearing is allowed on the project permit decision.
(5)
Referral and Review of Project Permit Applications. Within five days of accepting a complete application, the director shall transmit a copy of the application, or appropriate parts of the application, to each affected government agency and city department for review and comment, including those responsible for determining compliance with state and federal requirements.
(Ord. 02-707 § 1; Ord. 03-736 § 11; Ord. 05-790 §§ 14, 15, 16; Ord. 07-854 § 1; Ord. 19-1060 § 2 (Exh. A))
§ 25.175.030 Posting of public notice.
(1)
Posting of Public Notice of Application. In addition to the notice of application requirements at DMC § 25.175.020(4), the director shall also provide public notice of Type III project permit applications by publication in the city's official newspaper or by directing the applicant to post the site and provide photographic proof thereof.
(a)
Posting of the property for site-specific proposals shall consist of one or more notice boards as follows:
(i)
A single notice board shall be placed by the applicant at the midpoint of the street fronting the site or as otherwise directed by the director for maximum visibility, five feet inside the street property line, except when the board is structurally attached to an existing building; provided, that no notice board shall be placed more than five feet from the street without approval of the director, so that the top of the notice board is no more than eight feet above grade, and where it is completely visible to pedestrians.
(ii)
Additional notice boards may be required when the site does not abut a public road, a large site abuts more than one public road, or the director determines that additional notice boards are necessary to provide adequate public notice.
(iii)
Notice boards shall be in place at least 30 days prior to the date of any hearing, and at least 15 days prior to the end of any required comment period, and removed within 15 days after the end of the notice period. Notice boards shall be maintained in good condition by the applicant during the notice period.
(iv)
Removal of the notice board prior to the end of the notice period shall be cause for discontinuance of the department review until the notice board is replaced and remains in place for the specified time period.
(v)
An affidavit of posting shall be submitted to the director by the applicant at least 10 days prior to the hearing or final comment date. If an affidavit is not filed as required, any scheduled hearing or date by which the public may comment on the application shall be postponed until there is compliance with the notice requirement.
(vi)
Notice boards shall be constructed and installed in accordance with specifications promulgated by the director.
(2)
Notice of Public Hearing.
(a)
The notice of a public hearing required by this chapter shall contain:
(i)
The name and address of the applicant and the applicant’s representative;
(ii)
A description of the subject property reasonably sufficient to inform the public of its location, including but not limited to a vicinity location or written description, a map or postal address, and a subdivision lot and block designation, but need not include a legal description;
(iii)
The date, time and place of the hearing;
(iv)
The nature of the proposed use or development;
(v)
A statement that all interested persons may appear and provide testimony;
(vi)
The sections of the code that are pertinent to the public hearing procedure;
(vii)
A statement explaining when information may be examined, and when and how written comments addressing findings required for a decision by the hearing body may be admitted;
(viii)
The name of a city representative to contact and the telephone number where additional information may be obtained;
(ix)
A statement that a copy of the application, all documents and evidence relied upon by the applicant, and applicable criteria are available for inspection at no cost and that copies will be provided at the requestor’s cost pursuant to the city’s adopted fee schedule; and
(x)
A statement explaining that a copy of the staff report will be available for inspection at no cost at least seven days prior to the hearing and that copies will be provided at the requestor’s cost pursuant to the city’s adopted fee schedule.
(b)
Mailed Notice. Mailed notice of the public hearing shall be provided as follows:
(i)
Type I, Type II, and Type IV Actions. No public notice is required because no public hearing is held.
(ii)
Type III Actions. The notice of the public hearing shall be mailed to the applicant, all owners of property within 300 feet of the subject property, any person who submits written or oral comments on an application, and for a plat alteration notice shall be as provided in RCW 58.17.080 and 58.17.090.
(iii)
Type V Actions. For Type V legislative actions, the city shall publish notice as described in subsection (1) of this section in the city’s official newspaper.
(iv)
General Procedure for Mailed Notice of Public Hearing. The records of the Pierce County assessor’s office shall be used for determining the property owner of record. Addresses for a mailed notice required by this code shall be obtained from the applicable county’s real property tax records. The director shall cause to be issued a sworn certificate of mailing to all persons entitled to notice under this chapter. The director may provide notice to persons other than those required to receive notice under the code. All mailed public notices shall be deemed to have been received on the next business day following the day that the notice is deposited in the mail.
(c)
Procedure for Posted or Published Notice of Public Hearing.
(i)
Posted notice of the public hearing is required for all Type III permit procedures. The notice shall be posted as required by DMC § 25.175.020(4)(b)(ii).
(ii)
Published notice is required for all Type III and Type V procedures. Notice shall be published in the city’s official newspaper.
(d)
Time and Cost of Notice of Public Hearing.
(i)
Notice shall be mailed, posted and first published not less than 15 days prior to the hearing date. Posted notices shall be removed by the applicant within 15 days following the public hearing.
(ii)
All costs associated with the public notice shall be borne by the applicant.
(Ord. 02-707 § 1; Ord. 05-790 §§ 17, 18, 19; Ord. 07-854 § 1; Ord. 191060 § 2 (Exh. A))
§ 25.175.040 Consistency with development regulations.
(1)
Determination of Consistency.
(a)
Consistency between a proposed project permit application, applicable regulations and comprehensive plan shall be determined through the process described in this section.
(b)
During project permit application review, the director shall determine whether the development regulations applicable to the proposed project, or in the absence of applicable development regulations, the city's comprehensive plan, address the following:
(i)
The type of land use permitted at the site, including uses that may be allowed if the criteria for their approval have been satisfied;
(ii)
The level of development, such as units per acre, density of residential development in urban growth areas, or other measures of density;
(iii)
Availability and adequacy of infrastructure and public facilities identified in the comprehensive plan;
(iv)
Whether the plan or development regulations provide for funding of these facilities as required by Chapter 36.70A RCW; and
(v)
The character of the proposed development, as authorized by development standards.
(c)
Project Review. Project review by the director and appropriate city staff shall identify specific project design and conditions relating to the character of development, such as the details of site plans, curb cuts, drainage swales, or other measures to mitigate a proposal's probable adverse environmental impacts. During project review, neither the director nor any other city reviewing body may re-examine alternatives or hear appeals on matters found consistent with development regulations and/or the comprehensive plan, except for issues of code interpretation.
(Ord. 02-707 § 1; Ord. 19-1060 § 2 (Exh. A))
§ 25.175.050 Open record public hearings.
(1)
Public Hearings.
(a)
Public hearings on all Type III project permit applications shall be conducted in accordance with this chapter and shall be conducted by the city hearing examiner or her or his deputy examiners or an examiner pro tem (examiner). Public hearings conducted by the examiner shall also be subject to the hearing examiner's rules as provided in Chapter 1.11 DMC.
(b)
Public hearings on Type V actions shall be conducted in accordance with the procedures adopted by the city council for the conduct of public hearings before it.
(2)
The director shall:
(a)
Schedule project applications for review and public hearing;
(b)
Provide the required notice;
(c)
Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record predecision hearing. The report shall also describe any mitigation required or proposed under the city's development regulations or SEPA authority. If the threshold determination, other than a determination of significance, has not been issued previously by the city the report shall include or append this determination.
(3)
The hearing body shall be subject to the code of ethics and prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23 RCW, as the same now exists or may hereafter be amended.
(4)
Ex Parte Communications for Type III Procedure.
(a)
No examiner may communicate, directly or indirectly, regarding any issue in a proceeding before him or her, other than to participate in communications necessary to procedural aspects of maintaining an orderly process, unless he or she provides notice and opportunity for all parties to participate.
(b)
If, before serving as the examiner in a quasi-judicial proceeding, the examiner receives an ex parte communication of a type that could not properly be received while serving, the examiner, promptly after starting to serve, shall disclose the communication as described in subsection (4)(c) of this section.
(c)
If the examiner receives an ex parte communication in violation of this section, he or she shall place on the record:
(i)
All written communications received;
(ii)
All written responses to the communications;
(iii)
The substance of all oral communications received, and all responses made; and
(iv)
The identity of each person from whom the member received any ex parte communication. The examiner shall advise all parties that these matters have been placed on the record. Upon request made after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a rebuttal statement on the record.
(5)
Except for Type V actions, the burden of proof is on the proponent. The project permit application must be supported by substantial evidence that it conforms to the applicable elements of the city's development regulations and comprehensive plan. The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated.
(6)
The order of proceedings for a hearing will depend in part on the nature of the hearing. The following shall be supplemented by administrative procedures as appropriate and set out in Chapter 1.11 DMC:
(a)
Before receiving testimony and other evidence on the issue, the following shall be determined:
(i)
Any objections on jurisdictional grounds shall be noted on the record and if there is objection, the examiner may proceed or terminate the proceeding;
(ii)
Any disqualifications shall be determined.
(b)
The examiner may take official notice of commonly known and accepted information, such as:
(i)
Ordinances, resolutions, rules, officially adopted development standards, and state law;
(ii)
Facts judicially noticeable by law.
(c)
Information officially noticed need not be proved by submission of formal evidence to be considered by the examiner. Parties requesting official notice of any information shall do so on the record. The examiner, however, may take notice of matters listed in subsection (6)(b) of this section at any time. Any information given official notice may be rebutted.
(d)
The examiner may view the proposed project site or planning area with or without notification to the parties, but shall put into the record a statement setting forth the time, manner and circumstances of the site visit.
(e)
Information shall be received from the staff and from proponents and opponents. The examiner may, in his or her discretion, permit persons attending the hearing to ask questions. Unless the examiner specifies otherwise, approved questions will be asked of persons submitting testimony by the examiner.
(f)
When the examiner has closed the public hearing portion of the hearing, the examiner may openly discuss the issue and may further question the staff or any person submitting information. An opportunity to present rebuttal shall be provided if new information is presented in the questioning. When all evidence has been presented and all questioning and rebuttal completed, the examiner shall officially close the record and end the hearing.
(7)
Decision. Following the hearing procedure described in subsection (6) of this section, the examiner shall approve, conditionally approve, or deny the application. If the hearing is an appeal, the examiner shall affirm, reverse or, with the written consent of the applicant, which shall include a waiver of the statutory prohibition against two open record hearings, remand the decision for additional information.
(8)
Notice of Final Decision.
(a)
The city shall provide a notice of decision that also includes a statement of any threshold determination made under SEPA (Chapter 43.21C RCW) and the procedures for administrative appeal, if any.
(b)
The notice of decision shall be provided to the applicant and to any person who, prior to the rendering of the decision, requested notice of the decision or submitted substantive comments on the application.
(c)
The director shall issue a notice of final decision within 120 days of the issuance of the determination of completeness pursuant to DMC § 25.175.020(3); provided, that the time period for preliminary plats, short plats and final plats shall be subject to the requirements of RCW 58.17.140. The notice shall include the SEPA threshold determination for the proposal and a description of any available administrative appeals. For Type III project permits, the notice shall explain that affected property owners may request a change in property tax valuation notwithstanding any program of revaluation. The notice of final decision shall be mailed or otherwise delivered to the applicant, to any person who submitted comments on the application or requested a copy of the decision, and to the Pierce County assessor.
(d)
In calculating the 120-day period for issuance of the notice of final decision, the following periods shall be excluded:
(i)
Any period during which the applicant has been requested by the director to correct plans, perform required studies, or provide additional required information. The period shall be calculated from the date the director notifies the applicant of the need for additional information until the earlier of the date the director determines that the additional information provided satisfies the request for information, or 14 days after the date the additional information is provided to the city;
(ii)
If the director determines that the information submitted is insufficient, the applicant shall be informed of the particular insufficiencies and the procedures set forth in subsection (8)(d)(i) of this section for calculating the exclusion period shall apply;
(iii)
Any period during which an environmental impact statement (EIS) is being prepared pursuant to Chapter 43.21C RCW. The time period for preparation of an EIS shall be governed by Chapter 43.21C RCW;
(iv)
Any period for consideration and issuance of a decision for administrative appeals of project permits, which shall be not more than 90 days for open record appeals and 60 days for closed record appeals, unless a longer period is agreed to by the director and the applicant;
(v)
Any extension of time mutually agreed to by the director and the applicant.
(e)
If the city is unable to issue its final decision on a project permit application within the time limits provided for in this section, it shall provide written notice of this fact to the project applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision.
(f)
The time limits established in this title do not apply if a project permit application:
(i)
Requires an amendment to the comprehensive plan or a development regulation;
(ii)
Requires siting approval of an essential public facility as provided in RCW 36.70A.200; or
(iii)
Is substantially revised by the applicant, in which case the time period shall start from the date that a determination of completeness for the revised application is issued by the director pursuant to DMC § 25.175.020(3) and RCW 36.70B.070.
(Ord. 02-707 § 1; Ord. 05-790 § 20; Ord. 19-1060 § 2 (Exh. A))
§ 25.175.060 Administrative appeals.
(1)
The type of appeal for all non-Type III project permit applications and Type V land use decisions shall be as described in the matrix set forth in DMC § 25.175.010(4). Appeals to the hearing examiner shall be conducted pursuant to this section and Chapter 1.11 DMC.
(2)
All appeals of non-Type III project permit application decisions including but not limited to SEPA threshold determinations other than appeals of determinations of significance (DS), and exempt permits and approvals under DMC § 25.175.010(7), shall be considered together in a consolidated administrative appeal.
(3)
Standing to Initiate an Administrative Appeal.
(a)
Limited to Parties of Record. Only parties of record may file an administrative appeal.
(b)
Definition. The term “parties of record,” for the purposes of this chapter, shall mean:
(i)
The applicant;
(ii)
Any person who commented during the public comment period on the notice of application as provided at DMC § 25.175.020(4) (excluding persons who have only signed petitions or submitted form letters);
(iii)
Any department or agency receiving notice of application pursuant to DMC § 25.175.020(4)(a); and/or
(iv)
DuPont city council.
(4)
Appeals of the director’s decision on a project permit application shall be governed by the following:
(a)
Only parties of record have standing to appeal the director’s decision.
(b)
An appeal must be filed within 14 calendar days after the final decision. Appeals shall be delivered to the director by mail or by personal delivery to the department of community development, before 5:00 p.m. on the last business day of the appeal period. Appeals received by mail after 5:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.
(c)
For the purposes of computing the time for filing an appeal, the day the final decision is issued shall not be counted. If the last day of the appeal is a Saturday, Sunday, or holiday designated by RCW 1.16.050 or by a city ordinance, then the appeal must be filed on the next business day.
(d)
Appeals shall be in writing, be accompanied by the required appeal fee, and contain the following information:
(i)
Appellant’s name, address and phone number and the name, address, email address, and phone number of anyone representing the appellant;
(ii)
A statement describing appellant’s standing to appeal;
(iii)
Identification of the application that is the subject of the appeal;
(iv)
Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts in the record;
(v)
The specific relief sought;
(vi)
A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.
(e)
The timely filing of an appeal shall stay the director’s decision until such time as the appeal is withdrawn, or proceedings are concluded and an order is issued by the hearing examiner.
(f)
The director shall provide mailed notice of the appeal to all parties of record as defined in subsection (3) of this section.
(g)
Dismissal of Appeal. The hearing examiner may summarily dismiss an appeal without hearing when such appeal is determined by the examiner to be without merit on its face, frivolous, brought merely to secure a delay, or that the appellant lacks standing to appeal. The failure to timely file an appeal shall be considered jurisdictional and untimely filed appeals shall be dismissed by the examiner. The examiner is authorized to toll appeal deadlines as authorized by the common law doctrine of equitable tolling.
(h)
Burden. Unless otherwise provided by law, the party seeking to appeal the director’s final decision on a project permit application shall have the burden to establish that the director’s decision is not supported by evidence that is substantial when viewed in light of the entire administrative record. Issues on appeal are confined to those issues explicitly raised in the notice of appeal. The determination of the director shall be presumed prima facie correct and shall be afforded substantial weight. Appeals shall be limited to the records of the director.
(i)
Administrative Appeal. An appeal of the director’s final decision on a project permit application shall be held in an open record hearing where admission of evidence shall be confined to the appellant(s), the city, any other party the hearing examiner has affirmatively recognized as a party to the proceeding prior to the date of hearing, and the hearing examiner pursuant to Chapter 1.11 DMC.
(5)
Any permit application or other request for approval submitted pursuant to this chapter that is denied shall not be resubmitted or accepted by the director for reconsideration for a period of 12 months from the date of the last action by the city on the application or request unless, in the opinion and discretion of the director, there has been a significant change in the application or a significant change in conditions related to the impacts of the proposed project.
(Ord. 02-707 § 1; Ord. 05-790 § 21; Ord. 19-1060 § 2 (Exh. A))
§ 25.185.010 Violations.
(1)
It is a violation of land use code and/or subdivision code, this title and/or DMC Title 24, for any person to initiate, maintain or cause to be initiated or maintained the use of any structure, land or property within the city of DuPont without first obtaining the permits or authorizations required for the use by the aforementioned codes.
(2)
It is a violation of the land use code and subdivision code, this title and/or DMC Title 24, for any person to use, construct, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the city of DuPont in any manner that is not permitted by the terms of any permit or authorization issued pursuant to the aforementioned codes; provided, that the terms or conditions are explicitly stated on the permit or the approved plans.
(3)
In addition to the above, it is a violation of the land use code and subdivision code, this title and/or DMC Title 24, to:
(a)
Remove or deface any sign, notice, complaint or order required by or posted in accordance with the aforementioned codes;
(b)
Misrepresent any material fact in any application, plans or other information submitted to obtain any building or construction authorization;
(c)
Fail to comply with any of the requirements of the land use code and subdivision code, this title and/or DMC Title 24.
(Ord. 02-707 § 1)
§ 25.185.020 Duty to enforce.
(1)
It shall be the duty of the planning director to enforce this chapter. The planning director may call upon the police, fire, building, public works or other appropriate city departments to assist in enforcement. As used in this chapter, “planning director” shall also mean his or her duly authorized representative.
(2)
Upon presentation of proper credentials, the planning director may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any building or premises subject to the consent or warrant, in order to perform the duties imposed by this title and/or DMC Title 24.
(3)
This chapter shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.
(4)
It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, occupier or other person responsible for the condition of the land and buildings within the scope of this title and/or DMC Title 24.
(5)
No provision of or any term used in this chapter is intended to impose any duty upon the city or any of its officers or employees which would subject them to damages in a civil action.
(Ord. 02-707 § 1)
§ 25.185.030 Investigation and notice of violation.
(1)
Investigation. The planning director shall investigate any structure or use that the planning director reasonably believes does not comply with the standards and requirements of this title and/or DMC Title 24.
(2)
Notice of Violation. If after investigation the planning director determines that the standards or requirements of this title and/or DMC Title 24 have been violated, the planning director shall serve a notice of violation upon the owner, tenant or other person responsible for the condition. The notice of violation shall contain the following information:
(a)
A separate statement of each standard, code provision or requirement violated;
(b)
What corrective action, if any, is necessary to comply with the standards, code provision or requirements;
(c)
A reasonable time for compliance;
(d)
A statement that (for land use code violations), if the violation is not already subject to criminal prosecution, any subsequent violations may result in criminal prosecution as provided in DMC § 25.185.090.
(3)
Service. The notice shall be served on the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after a reasonable search and reasonable efforts are made to obtain service, the whereabouts of the person(s) is unknown or service cannot be accomplished and the planning director makes an affidavit to that effect, then service of the notice upon such person(s) may be made by:
(a)
Publishing the notice once each week for two consecutive weeks in the city's official newspaper; and
(b)
Mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known, or if unknown, to the address of the property involved in the proceedings.
(4)
Posting. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.
(5)
Other Actions May Be Taken. Nothing in this chapter shall be deemed to limit or preclude any action or proceeding pursuant to DMC §§ 25.185.050, 25.185.060, 25.185.080, 25.185.090, 25.185.100 or 25.185.110.
(6)
Optional Notice to Others. The planning director may mail, or cause to be delivered to all residential and/or nonresidential rental units in the structure or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, stop work order or emergency order and the applicable requirements and procedures.
(7)
Amendment. A notice or order may be amended at any time in order to:
(a)
Correct clerical errors; or
(b)
Cite additional authority for a stated violation.
(Ord. 02-707 § 1)
§ 25.185.040 Time to comply.
(1)
Determination of Time. When calculating a reasonable time for compliance, the planning director shall consider the following criteria:
(a)
The type and degree of violation cited in the notice;
(b)
The stated intent, if any, of a responsible party to take steps to comply;
(c)
The procedural requirements for obtaining a permit to carry out corrective action;
(d)
The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and
(e)
Any other circumstances beyond the control of the responsible party.
(2)
Order Becomes Final Unless Appealed. Unless an appeal is filed with the planning director for hearing before the hearing examiner in accordance with DMC § 25.175.010(4), the notice of violation shall become the final order of the planning director. A copy of the notice shall be filed with the Pierce County auditor. The planning director may choose not to file a copy of the notice or order if the notice or order is directed only to a responsible person other than the owner of the property.
(Ord. 02707 § 1)
§ 25.185.050 Stop work order.
Whenever a continuing violation of this code will materially impair the planning director’s ability to secure compliance with this code, or when the continuing violation threatens the health or safety of the public, the planning director shall issue a stop work order specifying the violation and prohibiting any work or other activity at the site. A failure to comply with a stop work order shall constitute a violation of this chapter.
(Ord. 02-707 § 1)
§ 25.185.060 Emergency order.
(1)
Whenever any use or activity in violation of this title and/or DMC Title 24 threatens the health and safety of the occupants of the premises or any member of the public, the planning director may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible. A failure to comply with an emergency order shall constitute a violation of this chapter.
(2)
Any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the planning director is authorized to abate such nuisance summarily by such means as may be available. The cost of such abatement shall be recovered from the owner or person responsible or both in the manner provided by law.
(Ord. 02-707 § 1)
§ 25.185.070 Review by hearing examiner.
(1)
Notice of Violation (Criminal Penalties). There is no administrative appeal of a notice of violation issued pursuant to DMC § 25.185.030 for violations described in DMC § 25.185.090, which subject the violator to criminal prosecution and/or the imposition of criminal penalties.
(2)
Notice of Violation (Civil Penalties). Any person significantly affected by or interested in a notice of violation issued by the planning director pursuant to DMC § 25.185.090 for a violation of the codes in this title which subject the violator to civil prosecution may obtain an appeal of the notice by requesting such appeal within 15 calendar days after service of the notice. When the last day of the period so computed is a Saturday, Sunday or federal or city holiday, the period shall run until 5:00 p.m. on the next business day. The request shall be in writing, and upon receipt of the appeal request, the building official shall forward the request to the office of the hearing examiner, pursuant to Chapter 25.175 DMC.
(3)
At or after the appeal hearing, the hearing examiner may:
(a)
Sustain the notice of violation;
(b)
Withdraw the notice of violation;
(c)
Continue the review to a date certain for receipt of additional information;
(d)
Modify the notice of violation, which may include an extension of the compliance date.
(4)
The hearing examiner shall issue a decision within 10 days of the date of the completion of the review and shall cause the same to be mailed by regular first class mail to the person(s) named on the notice of violation, mailed to the complainant, if possible, and filed with the department of records and elections of Pierce County.
(5)
The decision of the hearing examiner shall be final, and no further administrative appeal may be filed. In order to appeal the decision of the hearing examiner, a person with standing to appeal must make application for a land use petition under Chapter 36.70C RCW within 21 days of the issuance of the examiner’s decision.
(Ord. 02-707 § 1)
§ 25.185.080 Civil penalty.
(1)
In addition to any other sanction or remedial procedure which may be available, any person violating or failing to comply with any of the provisions of this title shall be subject to a cumulative penalty in the amount of $50.00 per day for each violation from the date set for compliance until compliance with the order is achieved.
(2)
The penalty imposed by this section shall be collected by civil action brought in the name of the city. The planning director shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the planning director, take appropriate action to collect the penalty.
(3)
The violator may show as full or partial mitigation of liability:
(a)
That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or
(b)
That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the defendant.
(Ord. 02-707 § 1)
§ 25.185.090 Criminal penalties.
(1)
Any person violating or failing to comply with any of the provisions of this title and who has had a judgment entered against him or her pursuant to DMC § 25.185.080 or its predecessors within the past five years shall be subject to criminal prosecution and upon conviction of a subsequent violation shall be fined in a sum not exceeding $5,000 or be imprisoned for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance with any of the provisions of this title shall constitute a separate offense.
(2)
The above criminal penalty may also be imposed:
(a)
For any other violation of this title for which corrective action is not possible; and
(b)
For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements of this title.
(Ord. 02-707 § 1)
§ 25.185.100 Additional relief.
The planning director may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of this title when civil or criminal penalties are inadequate to effect compliance.
(Ord. 02707 § 1)
§ 25.185.110 Subdivision violations.
(1)
Any person, firm, corporation or association or any agency of any person, firm, corporation or association who violates any provision of DMC Title 24, Subdivisions, relating to the sale, offer for sale, lease or transfer of any lot, tract, or parcel of land, shall be guilty of a gross misdemeanor and each sale, offer for sale, lease or transfer of each separate lot, tract or parcel of land in violation of any provision of DMC Title 24, Subdivisions, shall be deemed a separate and distinct offense.
(2)
Whenever land within a subdivision granted final approval is used in a manner or for a purpose which violates any provision of DMC Title 24, Subdivisions, or any term or condition of plat approval prescribed for the plat by the city, then the city attorney may commence an action to restrain and enjoin such use and compel compliance with the provisions of DMC Title 24, or with such terms and conditions. The costs of such action shall be taxed against the violator.
(Ord. 02-707 § 1; Ord. 06-816 § 4)
