Milton City Zoning Code
CHAPTER 17
71 PERMIT DECISION AND APPEAL PROCESSES
§ 17.71.010 Purpose and scope.
The purpose of this chapter is to establish standard procedures for all land use decisions made by the city and associated appeal processes. The procedures are designed to promote timely and informed public participation, provide efficient review and determination of land use decisions, and result in development approvals that further city goals as set forth in the comprehensive plan. As required by RCW 36.70B.060, these procedures provide for an integrated and consolidated land use permit process. The procedures integrate the environmental review process with the procedures for review of land use decisions and provide for the consolidation of appeal processes for land use decisions.
In case of conflict between the text of this chapter and the tables in MMC § 17.70.030(D) and 17.71.040, the tables shall prevail.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.020 Definitions.
As used in this chapter, the following terms are defined as:
A. "Application, complete"
means an application which meets the requirements outlined in Chapter 17.70 MMC (Application Requirements).
B. "Applicable director"
means the director of the community development department, building official, SEPA responsible official, public works director, fire chief, land use administrator, or designee for any of these.
C. "Open record hearing"
means a public hearing, conducted by a single hearing body or officer authorized to conduct such hearings, that creates a record through testimony and submission of evidence and information.
D. "Closed record hearing"
means a hearing, conducted by a single hearing body or officer authorized to conduct such hearings, in which testimony is restricted to information contained in the record developed in a prior open record hearing. Additional evidence may only be entertained as allowed by Chapter 36.70C RCW.
E. "Project permit or application"
means any land use, environmental, or approval required for a project action, including, but not limited to, subdivisions, short subdivisions, variances, planned development district master plans, conditional uses, shoreline substantial development permits, site plan approval, permits or approvals required by the critical areas ordinance, or site specific rezones which do not require a comprehensive plan, or development regulations except as otherwise specifically included in this subsection. Building, site development, public works, clearing and grading, and other construction permits are excluded from this definition and exempt from associated timeline and noticing requirements.
F. "Public or neighborhood meeting"
means an informal meeting, hearing, workshop, or other public gathering to obtain comments from the public or other agencies on a proposed project permit prior to the decision. A public meeting does not constitute an open record hearing. The proceedings at a public meeting may be recorded and a report or recommendation may be included in the project permit application file.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.030 Framework for decisions.
There are six processes (Process Types I through VI) based on who makes the decision. Please refer to the process type table, MMC § 17.71.040.
In general, Process Types I through III are administrative, minor or ministerial decisions made by the applicable director or designee. Process categories differ according to the amount of public participation.
Process Types IV and V decisions are quasi-judicial. Process Type IV decisions are made by the hearing examiner on project applications. Process Type V decisions are made by the city council.
Process Type VI decisions are legislative nonproject decisions made by the city council.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.040 Process type table.
Administrative | Quasi-Judicial | Legislative | ||||
|---|---|---|---|---|---|---|
Process I | Process II | Process III | Process IV | Process V | Process VI | |
Preapplication Meeting | None | None | Optional | Recommended | Recommended | Recommended |
Notification Requirement | None | None | 500 feet | 500 feet | 500 feet | Citywide |
Neighborhood Meeting | None | None | Optional | Required | Required | Optional |
Written Report | None | Staff | Staff | Applicable Director | Applicable Director | Applicable Director |
Open Record Hearing | None | None | None | Hearing Examiner | Hearing Examiner | Planning Commission/ City Council |
Closed Record Hearing | None | None | None | None | City Council | None |
Decision-Maker | Applicable Director | Applicable Director/ Hearing Examiner1 | Applicable Director | Hearing Examiner | City Council | City Council |
Administrative Appeal | None | Hearing Examiner | Hearing Examiner | None | None | None |
Judicial Appeal | Superior Court | Superior Court | Superior Court | Superior Court | Superior Court | Growth Management Hearings Board or Superior Court |
Review Time Period | -- | 65 days | 100 days | 170 days | 170 days | -- |
Notes: |
|---|
1 Hearing examiner is decision-maker for Final Subdivision, Chapter 16.12 MMC. |
(Ord. 1741 § 38, 2009; Ord. 1761 § 4, 2010; Ord. 1803 § 4 (Exh. C), 2012; Ord. 1837 § 6, 2014; Ord. 1841 § 3, 2014; Ord. 2097 § 2, 2024)
§ 17.71.045 Processing procedures table.
Process I | Process II | Process III3 | Process IV7 | Process V | Process VI |
|---|---|---|---|---|---|
Enforcement Action MMC Titles 5 – 18 | Code Interpretation MMC Titles 8 – 18 | Preliminary Short Plat Chapter 16.28 MMC | Preliminary Subdivision Chapter 16.12 MMC | Planned Development Master Plan Chapter 17.38 MMC4 | Code Amendment MMC Title 17 |
Engineering and Utilities MMC Titles 12, 13, 16 | Home Occupation Chapter 17.44 MMC | Modifications to Process IV | Binding Site Plan Chapter 16.30 MMC1 | Special Use Permit Chapter 17.42 MMC4 | Comprehensive Plan Amendment Chapter 17.67 MMC |
Clear and Grade Permit Chapter 13.26 MMC | Final Subdivision Chapter 16.12 MMC1, 2 | SEPA Threshold determination not otherwise combined Chapter 18.16 MMC | Macro Wireless Communication Facility Structures Chapter 17.58 MMC | Site-Specific Zoning Map Amendment5 | Citywide Zoning Map Amendment5 Chapter 17.68 MMC |
Storm Water Drainage Permit Chapter 13.26 MMC | Deviation from Standards | Shoreline Substantial Development Permit6 Chapter 18.12 MMC6 | Mobile Home Park Chapter 17.60 MMC1 | Shoreline Master Plan Amendment Chapter 18.12 MMC | |
Building Permit MMC Title 15 | Nonconforming Sign Chapter 17.50 MMC | Major Site Plan Approval Chapter 17.62 MMC | Conditional Use Permit Chapter 17.64 MMC | ||
Boundary Line Revision Chapter 16.29 MMC1 | Nonconforming Structures or Uses Chapter 17.52 MMC | Administrative Variance Chapter 17.65 MMC | Revocation of Decision All Processes | ||
Sign Permits Chapter 17.50 MMC | Critical Areas Decision (Map) Chapter 18.16 MMC1 | Variance Chapter 17.65 MMC3 | |||
Temporary Use Chapter 17.56 MMC | Design Review Chapter 17.43 MMC | Shoreline Permit Chapter 18.12 MMC | |||
Critical Areas or Exemption Chapter 18.16 MMC | Minor Site Plan Approval Chapter 17.62 MMC | Reasonable Use Exception | |||
Final Short Plat Chapter 16.28 MMC1 | |||||
Small Wireless Facilities and Macro Facilities on Existing Structures Chapter 17.58 MMC |
Notes: |
|---|
1 Required to be recorded. |
2 Before the hearing examiner, no administrative appeal. |
3 Neighborhood meeting optional. |
4 1,000- or 2,000-foot radius for notice. |
6 See Chapter 18.12 MMC for appeal procedures. |
7 1,000-foot radius for notice if project over 50,000 square feet or more than 50 units. |
(Ord. 2097 § 2, 2024)
§ 17.71.050 Process types.
A.
Process Type I. Process Type I applications are for permits that follow a straightforward, rule-based process.
1.
The applicable director shall make the final decision.
2.
The permit or the approved final short plat or approved boundary line adjustment shall represent the decision. If the applicable director denies the permit, the denial shall be in written form with findings demonstrating the basis of this decision.
B.
Process Type II. Process Type II applications are for administrative decisions that have no public notice.
1.
The applicable director shall make the final decision on Type II applications except for a final subdivision. The hearing examiner shall make the final decision on a final subdivision.
2.
The applicable director or designee shall prepare a written decision for each Process Type II application. In the case of a final subdivision, the report shall be written as a recommendation to the hearing examiner.
3.
The applicable director or hearing examiner shall indicate whether the decision was to approve, approve with conditions or deny the permit. The applicable director's or hearing examiner's decision must be based on the applicable review criteria and other related code sections.
C.
Process Type III. Process Type III applications are for administrative decisions after public notice.
1.
Neighborhood meetings are not required unless requested by the applicant or if requested by owners, residents, or businesses of five or more properties or within the notice area.
2.
The applicable director or designee shall prepare a written decision that shall indicate whether the decision was to approve, approve with conditions or deny the permit.
3.
The applicable director's decision must be based on the applicable review criteria and other related code sections.
D.
Process Type IV. Process Type IV applications are for discretionary permits or land use approvals whose final decision is made by the hearing examiner.
1.
The applicable director shall prepare a staff report containing findings of facts and conclusions of law and a written recommendation to the hearing examiner and shall indicate whether the recommendation was to approve, approve with conditions or deny the permit.
2.
The hearing examiner decision shall approve a project, or approve with modifications, if the applicant has demonstrated the proposal complies with the applicable review criteria and other related code sections.
3.
The applicant carries the burden of proof to demonstrate that the application meets the approval criteria. If not, the hearing examiner shall deny the application.
E.
Process Type V. Process Type V applications are for discretionary, quasi-judicial permits or land use approvals whose final decision is by the city council after a recommendation from the hearing examiner.
1.
The applicable director shall prepare a staff report containing findings of facts and conclusions of law and a written recommendation to the hearing examiner and shall indicate whether the recommendation was to approve, approve with conditions or deny the permit.
2.
The hearing examiner shall conduct the open record hearing and shall create a complete record of the public hearing, including all exhibits introduced at the hearing and an electronic sound recording of the hearing.
3.
The hearing examiner shall recommend approval, approval with modifications, and/or approval with conditions for a project if the applicant has demonstrated the proposal complies with the applicable decision criteria and applicable development standards.
4.
The applicant carries the burden of proof to demonstrate that the application meets the approval criteria. If not, the hearing examiner shall recommend denial of the application.
F.
Process Type VI. Process Type VI applications are for legislative decisions which are made by the city council and are heard initially by the planning commission.
1.
The applicable director shall prepare a staff report containing findings of facts and conclusions of law and a written recommendation to the planning commission and shall indicate whether the recommendation was to approve, approve with conditions or deny.
2.
The planning commission may recommend approval or approval with modifications to the city council.
3.
The city council shall consider each recommendation of the planning commission and information gathered at any of its own hearings.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.060 Consolidated review.
The applicant may elect to have all permits, except Process I permits and final subdivisions, for a project considered concurrently. The review process for land use permits for the same site with different process types will follow the higher process decision type.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.070 Preapplication meeting requirement.
A preapplication meeting serves as an early step in the permitting process, allowing for clarification and discussion before formal submission. The applicant may request representatives from the various departments and utilities. A preapplication meeting does not vest the project to the requirements identified at the preapplication meeting.
(Ord. 1741 § 38, 2009; Ord. 1761 § 5, 2010; Ord. 2097 § 2, 2024)
§ 17.71.090 Neighborhood public meeting requirements.
Where required or requested, a neighborhood public meeting shall be conducted early in the review process to provide community involvement. The applicable director shall publish notice of the public meeting in the same manner as the notice of the public hearing. When possible, the public meeting notice and the notice of application will be combined.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.100 Review time period.
A.
Review Time Limits.
Types I and II | 65 days |
Type III | 100 days |
Types IV and V | 170 days |
B.
Review Time Overview.
1.
Start Date. The review time period shall start upon the issuance of a determination of completeness for Process Types III through V and upon the filing of a complete application for Process Types I and II and will be suspended whenever a request in writing for revisions or additional information is made.
2.
The review time period shall restart upon application revisions being submitted to the city. These revisions must be submitted for all of the items listed in the written request. If such a written request is issued by the city and a partial revision is submitted by the applicant, the review time period shall not restart.
3.
The number of revision cycles affects the time spent on a project. The city assumes that projects will take no more than two revision cycles. The limitations of the review time period are intended to be supportive of those applicants who are striving in good faith to meet city requirements. The review time period limit will be extended by 40 days for each cycle of revision for any application which exceeds two cycles of revisions.
4.
End Date. The review time period is intended to measure the time spent by the city from the start date to approval date. The approval date is inclusive of any approval hearings conducted by the city, but appeals are not included.
5.
To the extent allowed by RCW 36.70B.080(1), the city may extend the review time period for specific applications by making written findings that a specified amount of additional time is necessary.
6.
The review time period shall start over if an applicant proposes a change in use that adds or removes commercial or residential elements from the original application that would make the application fail to meet the determination of completeness for the new use.
7.
The city council finds that more than 170 days is necessary to review master plan applications due to their high complexity, large scale and intensive impacts. For these reasons, master plan applications involving more than 30 acres shall be subject to a 250-day review period instead of 170 days.
C.
Inactive Applications.
1.
If an applicant is not responsive for more than 60 consecutive days after the city has notified the applicant of a determination of incompleteness or a written request for revisions or additional information, an additional 30 days may be added to the review time periods. For the purposes of this subsection, "nonresponsiveness" means that an applicant has not provided the additional requested information in full or that there is no ongoing communication from the applicant to the local government.
2.
If an applicant is not responsive for more than 90 consecutive days after the city has notified the applicant of a determination of incompleteness or written request for revisions or additional information, the application shall be deemed withdrawn. Once an application is withdrawn, the applicable director may require a new application and/or fees to reactivate the file. The applicable director may grant extensions to the withdrawal deadline if a written request demonstrating good cause is filed with the applicable director prior to the withdrawal date.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.110 Computation of review time period.
A.
Determination of Completeness. The following applies to all Process Types III through V applications, boundary line adjustments (Chapter 16.29 MMC), and critical areas decisions (Chapter 18.16 MMC):
1.
Within 28 calendar days after the date the development permit application and payment were received, the applicable director shall send written notice to the applicant containing either a:
2.
An application will not be reviewed for completeness until payment is received and will be deemed withdrawn if payment is not received within 30 days of being invoiced.
3.
The application will become legally complete if the applicable director does not provide the applicant a determination within 28 days from the date the development permit application was filed.
4.
The applicable director may request additional information to supplement an incompleteness. The applicant has 60 calendar days from the postmarked date of the director's request to provide the requested information. Within 14 calendar days after an applicant has submitted the requested additional information, the director shall notify the applicant stating whether or not the additional information adequately responds to the notice of incompleteness. If the information is sufficient, the director will issue a determination of completeness. If the information is insufficient to meet the application requirements, the director will request further submittals.
5.
An application shall become vested under the zoning or other land use control ordinances in effect on the date a determination of completeness is made under this title, except for variances, planned developments, and rezones which do not vest until approval by the applicable reviewing body.
B.
Exemptions and Extension of Review Time Period.
1.
The review time period shall be calculated from the time the completeness is determined to the date a final decision is issued on a project permit application.
2.
The following time periods shall be exempt from the review time period requirement:
a.
Any period during which the applicant has been requested by the applicable director to correct plans, perform required studies, or provide additional required information due to the applicant's misrepresentation or inaccurate or insufficient information;
b.
Any period during which an environmental impact statement is being prepared;
c.
Any period for administrative appeals of land use permits, or as suspended by any decision-making forum of competent jurisdiction;
d.
Any extension of time mutually agreed upon in writing between the applicant and the applicable director.
3.
The review time period shall not apply in the following situations:
a.
If the permit requires approval of a new fully contained community as provided in RCW 36.70A.350, master planned resort as provided in RCW 36.70A.360, or the siting of an essential public facility as provided in RCW 36.70A.200.
b.
If, at the applicant's request, there are substantial revisions to the project proposal, in which case the time period shall start from the date on which the applicable director issues a determination of completeness for the revised project application.
4.
All time periods, unless otherwise specifically stated, shall refer to calendar days. All dates are counted from the date submitted to the date of the response.
C.
Refunds.
1.
When permit time periods provided for in this chapter, after any exemptions or extensions, are not met, the following refunds to the project permit applicant fee shall apply:
a.
Ten percent if the final decision of the project permit application was made after the applicable deadline but the period from the passage of the deadline to the time of issuance of the final decision did not exceed 20 percent of the original time period; or
b.
Twenty percent if the period from the passage of the deadline to the time of the issuance of the final decision exceeded 20 percent of the original time period.
2.
Alternatively, the city may choose to collect only 80 percent of a permit fee initially, and collect the remaining balance if the permitting time periods are met.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.120 Notice of application procedures.
When a notice of application is required, it shall be distributed as follows:
A.
The applicable director shall distribute notice of the application to the applicant, the applicant's agent (if any) and owners of real property as identified in MMC § 17.71.040 and 17.71.045. For Process Types VI and V, notices shall also be distributed to tenants within the distribution radius and any properties affected by required off-site improvements.
B.
The applicable director shall publish public notice of the application on the city's website and bulletin board.
C.
The applicant shall post a sign or placard on the site or in a location immediately adjacent to the site that provides the greatest visibility to most motorists using adjacent streets. The applicable director shall establish standards for size, color, layout, design, wording, placement, and timing of installation and removal of the signs or placards.
D.
The minimum comment period after the publication of the notice of application and before the applicable director's decision shall be no less than 15 days from the date issued, except for SEPA determinations, which are regulated by Chapter 18.12 MMC.
E.
A notice of application shall be distributed no later than 15 days after the determination of completeness.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.130 Open record hearing procedures.
A.
Notice of Hearing. The notice required for a notice of application, MMC § 17.71.120, shall also apply to notices of public hearing; provided, that notice shall be distributed at least 15 calendar days prior to the date of the hearing.
B.
Participation in Hearing. Any person may participate in the open public hearing by submitting written comments to the applicable director prior to the hearing or by submitting written comments or making oral comments at the hearing.
C.
Transmittal of File. The applicable director shall transmit all written comments received prior to the hearing and information reviewed or relied upon by the applicable director and/or the SEPA responsible official in making the recommendation to the hearing examiner, planning commission, or city council. The file shall also include information verifying compliance with public notice requirements.
D.
Hearing Record. The hearing examiner, planning commission, or city council shall create a complete record of the public hearing including all exhibits introduced at the hearing and an electronic sound recording of each hearing.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.140 Closed record hearing procedures.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.150 Administrative appeal procedure.
B.
Who May Appeal Administrative Decisions. The project applicant or agent or any party of record may appeal the decision. For Type II decisions, the only parties of record are the applicant and the city.
C.
Form of Administrative Appeal.
1.
A person filing an administrative appeal to the applicable director's decision or hearing examiner must file a written statement setting forth:
a.
Facts demonstrating that the person is adversely affected by the decision;
b.
A concise statement identifying each alleged error and the manner in which the decision fails to satisfy the applicable decision criteria or an identification of specific errors in fact or conclusion;
c.
The specific relief requested; and
d.
Any other information reasonably necessary to make a decision on the appeal.
2.
The appeal must include the written statement and an appeal notification form provided by the community development department. The appellant must pay any appeal fee.
D.
Upon receiving notice of appeal, the applicable director shall forward the hearing examiner or the city council all of the records pertaining to the decision being appealed.
E.
Notice of Administrative Appeal Hearings.
1.
Notified Parties. If a party files an administrative appeal, the applicable director shall set a public hearing before the hearing examiner or city council.
2.
Content of Notice. The applicable director shall prepare a notice of an appeal hearing containing the following:
a.
The name of the appellant, and if applicable the project name; and
b.
The street address of the subject property, and a description in nonlegal terms sufficient to identify its location; and
c.
A brief description of the decision being appealed; and
d.
The date, time and place of the appeal hearing before the city council.
3.
Time and Provision of Notice. The applicable director shall distribute notice of the appeal hearing no less than 15 days prior to the appeal hearing to each person entitled to participate in the appeal pursuant to this section.
4.
Merged Process Types. If the application includes a merger of different process type decisions, the city will consolidate the public hearing on the appeals and follow the more restrictive provisions. The city will issue a single public hearing notice for the consolidated appeals.
5.
The hearing examiner or city council shall conduct an open record hearing on an appeal of a decision. The appellant, the applicant, and the city shall be designated parties to the appeal. Each party may participate in the appeal hearing by presenting testimony or calling witnesses to present testimony. Interested persons, groups, associations, or other entities who have not appealed may participate only if called by one of the parties to present information; provided, that the hearing examiner or city council may allow nonparties to present relevant testimony if allowed under the hearing examiner's rules of procedure.
6.
Hearing Examiner Decision or City Council on Administrative Appeals. Within 10 working days after the close of the record for the appeal, the hearing examiner or city council shall issue a decision to grant, grant with modifications, or deny the appeal. The decision shall be based upon findings of fact and conclusions of law. The applicable director shall distribute the appeal to the appellant, applicant and any other parties of record to the appeal.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.154 Commencement of activity.
The applicant may commence activity or obtain other required approvals authorized by a project decision the day following the effective date of the decision or ordinance approving the project or approving it with modifications. Activity commenced prior to the expiration of the full appeal period is at the sole risk of the applicant.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.155 Deadline for hearing examiner decisions and recommendations.
The final land use decision or recommendation of the hearing examiner shall be issued within 10 working days of the close of the record as required by state law.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)
§ 17.71.160 Limitations on refiling an application.
A.
Limitations on Refiling of Application. The city will not accept permit applications for a specific site if the city previously denied a substantially similar permit on the site. A permit application shall be considered substantially similar if:
1.
The proposed application and site plan (i.e., building layout, lot configuration, dimensions) are the same, or substantially the same, as the city denied in the earlier decision and relevant circumstances, or code provisions, have not materially changed since denial; or
2.
In the case of a variance or deviation from standard, the unique circumstances presented are nearly identical to those previously rejected by the city. In every instance, the applicant bears the burden of proving that an application is not similar.
(Ord. 1741 § 38, 2009; Ord. 2097 § 2, 2024)