Montesano City Zoning Code
CHAPTER 17
47 APPEALS OF ADMINISTRATIVE DECISIONS
§ 17.47.010 Scope.
This chapter establishes the procedure and criteria the city will use in deciding requests to review decisions made by the administrator and other city staff during the administration of the zoning ordinance.
(Ord. 1366 (part), 1995)
§ 17.47.020 Applicability.
This chapter applies to all requests to review decisions and orders made by the administrator and all other city staff under the zoning ordinance unless another appeal procedure is specifically provided by the chapter or section being appealed. If another appeal procedure is provided, that procedure shall be used.
(Ord. 1366 (part), 1995)
§ 17.47.030 Who may appeal.
Any person who is an applicant for a permit or approval, any person who requested an administrative decision, or any person adversely affected by any administrative decision.
(Ord. 1366 (part), 1995)
§ 17.47.040 Submittal requirements.
A person appealing the decision of city staff shall submit the following to the administrator:
(1)
A brief written statement containing the following information:
(A)
The statement must indicate the facts that establish the appellant's right to appeal the decision,
(B)
The statement must identify explicit exceptions and objections to the decision being appealed or identify specific errors in fact or conclusion,
(C)
The statement must state the requested relief from the decision being appealed,
(D)
The name and address of the person(s) appealing the decision,
(E)
Give the address and use, if any, of any property involved in the appeal;
(2)
Any fee set for appeals;
(3)
Any other information as is reasonably necessary to make a decision on the appeal.
(Ord. 1366 (part), 1995)
§ 17.47.050 Time within which an administrative appeal must be filed.
A written statement appealing the decision must be filed with the administrator no more than thirty days from the date the decision is mailed or otherwise become effective. Activity commenced before the expiration of this appeal period based on an appealable decision or action is at the sole risk of the person taking action.
The city of Montesano and any of the city's officers, agents or employees shall not incur any liability or risk.
(Ord. 1366 (part), 1995)
§ 17.47.060 Appeal stays all enforcement of decision or order appealed.
The filing of an appeal stays all actions by the administrator or other city official seeking enforcement or compliance with the order or decision being appealed, unless the administrator certifies to the examiner that (because of the facts stated in the certificate) a stay would, in the opinion of the administrator, cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the examiner or a court, issued on application of the party seeking the stay, for due cause shown after notice to the administrator. The stay is lifted after the decision of the examiner.
(Ord. 1366 (part), 1995)
§ 17.47.070 Decision procedure for appeals of administrative decisions.
(a)
The person appealing the decision (the appellant) shall submit the statement required by Section 17.47.040, any other necessary information and any required fees to the administrator.
(1)
The administrator shall review the submittal and determine if it is complete. The appeal shall be considered filed when the statement is submitted and all required fees are paid. If incomplete, the appeal statement may be completed by the appellant after it is filed.
(2)
The administrator shall have the authority to establish the period of time which shall elapse between the date of the filing of the appeal and its hearing by the examiner. This authority shall specifically include the authority to establish that an appeal file shall be placed upon the hearing agenda of the hearing examiner at the first regular hearing date following the passage of thirty-two days from the date of the filing of the appeal; provided, that in the event that the administrator determines that the necessary information can be prepared in a shorter time period, the administrator may so establish an earlier date.
(3)
The examiner may limit the number of applications and appeals to be considered at a meeting as part of the examiner's rules of procedure.
(b)
After the request for review is filed and complete, the administrator shall schedule a public hearing for the next hearing date to be held by the examiner at which the appeal request can be accommodated and notice given. The administrator shall provide notice of the hearing on the appeal as provided in Section 17.47.090.
(c)
The administrator may prepare a written report on the decision being appealed setting forth the facts and conclusions on which the decision is based. The administrator shall mail or otherwise provide for delivery of any written report to the appellant at least five days before the hearing date.
(d)
The administrator shall mail or otherwise provide for the delivery of the appellant's written statement and the administrator's written report, if any, to the examiner at least five days before the hearing date.
(e)
The hearing examiner shall conduct a public hearing on the application. The hearing shall be conducted as provided in Section 17.47.100. At the hearing, examiner may request such additional information as is reasonably necessary to evaluate the appeal.
(f)
After closing of the written record and of the public hearing, the examiner shall decide the appeal.
(1)
The examiner shall issue a written decision on the appeal within thirty-two days of the closing of the written record and of the public hearing unless the appellant agrees in writing to an extension of time.
(2)
Decisions on appeals shall be based on the decision criteria in Section 17.47.080.
(3)
The examiner may reverse or affirm (wholly or partly) or may modify the order, decision, requirement or determination appealed and may condition the relief granted on an appeal to ensure compliance with the city code.
(4)
The decision shall include findings of fact and conclusions which support the decision on the appeal and any required conditions.
(g)
The decision of the examiner and the findings of fact and conclusions shall be reduced to writing, filed with the office of the clerk-controller, and mailed to the appellant by the administrator within seven days of the date of filing of the decision.
(h)
Notice of Appeal. Where the project or action being appealed is not exempt from SEPA, the administrator shall mail official notice of the date and place for making an appeal to the applicant, any parties to an administrative appeal, and any persons who have requested notice of decisions on the proposal after the decision on the application is made. The notice must include the following: a statement that the appeal of decision on the administrative appeal use must be filed with superior court for Grays Harbor County within thirty days of the decision and a statement that the appeal of the SEPA decision must be filed with Superior Court for Grays Harbor County within thirty days of the date the notice is mailed or, if the notice is hand delivered, delivered. Where SEPA issues are first raised in an administrative appeal, the notice of appeal must also state that any person wishing to raise SEPA issues in a judicial appeal must give notice of the appeal to the city of Montesano responsible official within thirty days of the administrative appeal decision date as required by WAC 197-11-680(4)(d) or its successor. The address of the responsible official must be included in the notice. The notice of appeal may be appended to the decision document, or may be separate. See WAC 197-11-680(5) or its successor for additional information.
(i)
Effect of Decision.
(1)
The decision of the examiner on the appeal is the final decision of the city.
(2)
The examiner's decision shall not be reconsidered, except as a new appeal. See Section 17.47.110 for time limits for filing new appeal.
(3)
The decision of the examiner on the appeal may be appealed to the superior court as provided in Section 17.47.120.
(j)
Commencement of Activity. The appellant or any other party authorized to conduct activities or uses by the decision may commence activity or obtain other required approvals authorized by the decision of the examiner on the appeal immediately after decision on the appeal by the examiner. Activity commenced before the expiration of the appeal period provided in Section 17.47.120 is at the sole risk of the applicant or other party. The city of Montesano and any of the city's officers, agents or employees shall not incur any liability or risk.
(Ord. 1366 (part), 1995)
§ 17.47.080 Appeal decision criterion.
In deciding appeals, the examiner shall consider only the merits of the appeal as it relates to the specific terms, phrases or sections of the zoning ordinance in question and shall not consider the merits of the proposal or the property affected by the decision.
(Ord. 1366 (part), 1995)
§ 17.47.090 Public hearing notice.
(a)
Content of the Public Notice. The administrator shall prepare notice for all public hearings and may include the following information.
(1)
The name of the appellant and, if applicable, the project name;
(2)
If the appeal involves specific property, the street address of the subject property and a description of the property in non-legal terms sufficient to identify the location;
(3)
A brief description of the decision which is being appealed;
(4)
A brief description of the issues as stated in the appeal;
(5)
The date, time and place of the public hearing;
(6)
A statement of the right of any person to participate in the public hearing as provided in Section 17.47.100 and the ways they may participate;
(7)
A statement that appeals of the examiner decision may only be made within thirty days of the date of the examiner's decision of the appeal as provided in Section 17.47.120.
(b)
Time of Notice. The administrator shall mail and publish the notice at least ten days before a hearing.
(c)
Means of Notice. The administrator shall provide notice for all public hearings in the following manner:
(1)
Publishing notice of the public hearing in a newspaper of general circulation within the city;
(2)
Mailing notice of the public hearing to the appellant and any affected project proponent;
(3)
Failure to receive a properly mailed notice shall not affect the validity of any testimony or the legality of any action taken.
(Ord. 1366 (part), 1995)
§ 17.47.100 Conduct of Public Hearings.
(a)
Who May Participate. Any person may participate in the public hearing.
(b)
How to Participate. Any person may participate in the public hearing in either or both of the following manners:
(1)
By submitting written comments to the administrator before the public hearing. The administrator shall transmit all written comments received before the public hearing to the examiner no later than the public hearing;
(2)
By submitting written comments or making oral comments to the examiner at the public hearing.
(c)
Hearing Record.
(1)
The administrator shall make an electronic sound recording of each hearing. The administrator shall retain the electronic sound recording of the hearing for at least six years.
(2)
Whenever practical, all documentary evidence presented at a hearing, as well as other types of physical evidence, shall be made a part of the record of the proceedings and shall be kept by the administrator for at least two years.
(d)
Continuation of Hearing. As with other hearings held by the examiner, the examiner may continue the hearing until a subsequent date and may keep the hearing or written record open to take additional information up to the point the decision is made. No further notice of a continued hearing need be given unless a period of nine weeks or more elapses between hearing dates.
(e)
Time of Limits. The examiner may place reasonable and equitable limitations on testimony, the presentation of evidence and arguments, and questions so the matter at issue may be heard and decided without undue delay.
(Ord. 1366 (part), 1995)
§ 17.47.110 Limitation on refiling appeals.
After a final decision on an appeal, the administrator shall not accept any further appeals for substantially the same property involving substantially the same issues within one year from the date of the decision.
(Ord. 1366 (part), 1995)
§ 17.47.120 Appeal of examiner's decision to superior court.
(a)
Who May Appeal. The appellant or any person adversely affected by the decision an affected may appeal the decision of the examiner to superior court.
(b)
Time to Appeal. The decision of the examiner must be appealed to superior court no more than thirty calendar days following the date of the examiner of adjustment decision on the appeal or is thereafter barred.
(Ord. 1366 (part), 1995)
