Chapter 17.200 GENERAL PROCEDURES

The purpose of the procedures section of this chapter is to combine and consolidate the application, review and approval processes for land development in the city of Battle Ground in a manner that is clear, concise and understandable. It is further intended to comply with state guidelines for combining and expediting development review and integrating environmental review and land use development plans. Final decision on development proposals shall be made pursuant to the time lines set forth in BGMC 17.200.130. (Ord. 99-008 § 2(A) (part), 1999)

17.200.020 Applicability.

The provisions of this chapter apply to any land use action under the Battle Ground Municipal Code including, but not limited to, those taken under the following titles (hereafter “development code”):

A. BGMC Title 12 (Streets and Sidewalks);

B. BGMC Title 15 (Buildings and Construction);

C. BGMC Title 16 (Land Divisions);

D. BGMC Title 17 (Zoning);

E. BGMC Title 18 (Environmental Protection).

In addition, this chapter applies to any legislative amendment to the above-listed titles. (Ord. 99-008 § 2(A) (part), 1999)

17.200.030 Rules of interpretation.

A. For the purposes of the development code, all words used in the code shall have their normal and customary meanings, unless specifically defined otherwise in this code.

B. Words used in the present tense include the future.

C. The plural includes the singular and vice versa.

D. The words “will” and “shall” are mandatory.

E. The word “may” indicates that discretion is allowed.

F. The word “used” includes designed, intended or arranged to be used.

G. The masculine gender includes the feminine and vice versa.

H. Distances shall be measured horizontally unless otherwise specified.

I. The word “building” includes a portion of a building or a portion of the lot on which it stands.

J. All day references refer to calendar days.

K. The terms “developer” and “applicant” are used interchangeably. (Ord. 99-008 § 2(A) (part), 1999)

17.200.035 Application types.

A. The city shall consolidate the development application and review in order to integrate the development permit and environmental review process, while avoiding duplication of the review processes.

B. All applications for development permits, design review approvals, variances and other city approvals under the development code shall be submitted on forms provided by the community development department. All applications shall be signed by the property owner, or accompanied by a letter of authorization signed by the property owner.

C. Land use applications occur in the following three types:

1. Type I (Administrative Quasi-Judicial). This application involves no or very little discretionary decision making in application of the applicable development ordinances, and has little to no significant impact to abutting property owners and/or the public in general. Examples include boundary line adjustments, building permits and home occupations.

2. Type II (Administrative Quasi-Judicial). This application type requires a higher degree of discretionary decision making in interpreting and applying the applicable development regulations, and has a greater degree of impact on abutting property owners and/or the general public. Examples include short plats, multifamily developments and commercial site plans abutting residential zones.

3. Type III (Hearing Quasi-Judicial and Legislative). This application type requires a high degree of discretionary decision making in interpreting and applying development regulations, and/or has a high degree of impact on property owners within the vicinity of the site and the public in general. Examples include subdivisions, conditional use permits (CUPs), code interpretations, rezones and planned unit developments (PUDs), or amendments to the comprehensive plan or plan map.

D. A complete classification of the land use application types is administratively maintained by the director. The city shall process each type of land use action in the manner prescribed in BGMC 17.200.060. (Ord. 04-024 § 53, 2004: Ord. 99-008 § 2(A) (part), 1999)

17.200.040 Roles and responsibilities.

The regulation of land development is a cooperative activity including many different elected and appointed boards and city staff. The specific responsibilities of these bodies are set forth below.

A developer is expected to read and understand and be prepared to fulfill the obligations placed on the developer by the development code.

A. Planning Director. The planning director has the authority and is responsible for the administration of the development code. The planning director shall review and act on the following:

1. Administrative Interpretation. Upon request or as determined necessary, the planning director shall interpret the meaning or application of the provisions of such titles and issue a written administrative interpretation within thirty days. Requests for interpretation shall be written and shall concisely identify the issue and desired interpretation.

2. Type I and Type II administrative approvals as set forth in BGMC 17.200.035(C)(1) and (2).

B. City Council. In addition to its legislative responsibility, the city council shall review and act on the following subjects, as set forth in BGMC 17.200.110:

1. Recommendations of the planning commission;

2. Appeals of comprehensive plan map/zone changes that are site-specific and not general in nature.

C. Planning Commission. The planning commission shall review and act or make recommendations to city council, as appropriate, on the following applications and subjects, as set forth in BGMC 17.200.105:

1. Amendments to the comprehensive plan text, policies or plan map that are general in nature as identified in Chapter 2.10 BGMC;

2. Legislative proceedings relating to the development code except those determined by the planning director to be of a technical nature with limited opportunity to change standards legislatively such as building codes and engineering standards;

3. Other actions requested or remanded by the city council;

4. Rezone applications initiated by the city to implement a newly adopted or amended comprehensive land use plan which is of general applicability, until such time as the comprehensive plan designations and implementing zoning function are separated;

5. Review and comment on Type III land use actions as provided for in BGMC 2.10.100.

D. Hearings Examiner. The hearing examiner shall review and act on the following subjects, as set forth in BGMC 17.200.100 and Chapter 2.10 BGMC:

1. All Type III land use actions that are site-specific in nature, except as provided for in subsection C of this section;

2. Hearing and reporting on any proposals to change the comprehensive plan map land use and/or implementing zoning designation of specific parcels of land, including such annual reviews which are applied for and are not of general applicability. (Ord. 04-024 § 54, 2004: Ord. 99-008 § 2(A) (part), 1999)

17.200.045 Preapplication.

A preapplication conference is an opportunity for a prospective applicant to meet with city staff to discuss the requirements for a proposed development application.

A. Applicability. All Type III applications shall be subject to preapplication review, unless waived by the planning director. Preapplication review for Type I and II applications is optional, unless determined necessary by the planning director.

B. Preapplication Conference Submittal Requirements. Requests for a preapplication conference submitted to the planning director shall contain the following information:

1. Application form completed and signed, accompanied by fees as identified in Table 18.04.1;

2. Five copies of a site plan or proposed plat, as appropriate for the proposed land use, drawn to a minimum scale of one inch equals two hundred feet on a sheet no larger than twenty-four by thirty-six inches (one copy is acceptable if eleven by seventeen inches, if to scale). The development plan shall include sufficient information so city departments can make an adequate determination as to the potential impact of the proposal and respond accordingly.

3. Five copies of a developer GIS packet for the subject property, produced by Clark County GIS, or equivalent information acceptable to the planning director.

4. Provide a written narrative and attach exhibits that give a complete and accurate depiction of what the proposal involves, including any specific questions to be answered by the city. If the applicant proposes any specific conditions or mitigation measures, this should be included in the narrative.

C. Upon receipt of a preapplication conference request, the planning director shall:

1. Within seven days schedule a date and time at which the conference will be held. The planning director may set a specific day of the week upon which conferences are to be held. Conferences shall be held at least two but no more than four weeks from the date the preapplication conference submittal is made.

2. Forward the materials submitted to the appropriate local agencies for review and comment.

3. Hold the conference. Conferences are held with the applicant and are attended by a representative from the planning, public works and fire departments, as applicable and appropriate.

4. One week following the conference, the planning director will issue a written report summarizing the conference including any determinations made as a result of the conference. Such report shall be distributed to the applicant and all attendees of the preapplication conference. (Ord. 04-024 § 55, 2004: Ord. 00-024 § 7 (part), 2000; Ord. 99-008 § 2(A) (part), 1999)

17.200.050 Content of technically complete applications.

A. All applications for approval under the development code shall include the information specified in the applicable title, unless modified by the planning director. The planning director may require additional information as reasonably necessary to fully and properly evaluate the proposal.

B. The applicant shall apply for all permits identified in the preapplication conference report and those identified in the municipal code.

C. A project application shall be declared technically complete only when it contains ten copies of all of the following materials:

1. A fully completed and signed development application and all applicable review fees. The application shall be signed by the owner of record or be accompanied by a letter of authorization signed by the owner of record, and evidence that the signatory is the owner of record;

2. A fully completed and signed environmental checklist pursuant to the State Environmental Policy Act, if applicable;

3. The information specified for the desired project in the appropriate chapters of the Battle Ground Municipal Code;

4. A developer GIS packet for the subject property, produced by Clark County GIS, or equivalent information acceptable to the planning director;

5. For Type II and Type III actions, a complete deed history for the subject property from 1969 to present;

6. Copies of all technical plans, including subdivision and/or site plan layout and utility plans, on three and one-half inch magnetic disc in a format as identified by the director, if available;

7. Any supplemental information or special studies identified in writing by the planning director or specifically required by an applicable section of the development code;

8. For Type II and III applications, a certified list from the Clark County assessor’s office or title company not older than ninety days containing the names of all property owners within five hundred feet of the development site on all sides. Said list shall include two sets of mailing labels;

9. A written narrative describing the uses on site, hours of operation and compliance with applicable standards.

D. For Type II applications for which the director required a preapplication conference and all Type III applications, for which the preapplication conference was held more than one year prior to formal application, the director may require a new preapplication conference.

E. For applications determined to be incomplete, the city shall identify, in writing, the specific requirements or information necessary to constitute a complete application. Upon resubmittal of the application or submittal of the additional information, the city shall, within seven days, issue a letter of completeness or identify what additional information is required. The city, for completeness, shall evaluate any subsequent submittals within seven days of submittal. If the city is unable to make a technically complete determination within the time frames provided for in this section, the director shall provide notice to the applicant in writing as to when the determination will be made, which shall be no more than twenty-eight days following submittal of initial application or fourteen days following resubmittal. (Ord. 04-024 § 56, 2004: Ord. 00-024 § 15, 2000; Ord. 99-008 § 2(A) (part), 1999)

17.200.060 Application processing.

When multiple land use actions of different types are required for a development, all shall be processed concurrently at the highest review type.

A. Upon submittal of a Type I application, the planning director shall:

1. Within seven days of submittal, the planning director shall determine if the application is technically complete. If the application is not complete, written notice to that effect shall be given to the applicant, enumerating what information must be submitted by the applicant to complete the application. When an application is determined to be technically complete, such date shall be noted on the application form.

2. The planning director shall render a written report prepared pursuant to BGMC 17.200.090 that contains the decision to approve, approve with conditions or deny an application pursuant to BGMC 17.200.130(A). The decision of the planning director may be appealed pursuant to BGMC 17.200.140(A).

B. Upon submittal of a Type II application, the planning director shall:

1. Determine within twenty-eight days if the application is technically complete. A written notice of the determination as to technical completeness shall be sent to the applicant. If the application is not complete, the notice shall specifically indicate what items must be submitted to make the application complete;

2. Within seven days of a complete submittal, the planning director shall initiate a notification process to solicit comments from the public and the following affected agencies: public works, police, fire, affected private utilities and other affected agencies as determined by the planning director. Notice shall be given pursuant to the process outlined in BGMC 17.200.080;

3. If the proposal is subject to SEPA: The city shall issue a SEPA threshold determination for the proposal within thirty days of the date the application is determined to be technically complete. The threshold determination shall be published in a newspaper of general circulation within the city;

4. A decision to approve, approve with conditions or deny the application will be issued pursuant to BGMC 17.200.130(A), except as provided for in BGMC 17.200.130(B);

Any decision or SEPA threshold determination made by the planning director may be appealed within fifteen days of issuance of the notice of decision on the proposal in accordance with the provisions of BGMC 17.200.140(A).

C. Except as provided for in BGMC 17.200.115 (Legislative actions), the planning director shall process Type III applications as follows:

1. Determine within twenty-eight days if the application is technically complete. A notice of the determination of completeness shall be sent to the applicant. If the application is not complete, the notice sent to the applicant will specifically indicate what items must be submitted to make the application complete.

2. Once the application has been determined to be complete, the planning director shall schedule the proposal for public hearing before the hearing examiner. The hearing date shall be at least forty-five days but no more than ninety days following determination of completeness.

3. Within seven days of a complete submittal, the planning director shall initiate a notification process to solicit comments from the public and the following affected agencies: public works, police, fire, affected private utilities and other affected agencies as determined by the planning director. Notice shall be given pursuant to the process outlined in BGMC 17.200.080.

4. Within thirty days of a complete submittal, the city shall issue a SEPA threshold determination, if the proposal is subject to SEPA.

5. Seven days prior to public hearing, the city shall mail a copy of the completed staff report and recommendation to the applicant and all parties of record for the action. The staff report shall be prepared pursuant to BGMC 17.200.090. Copies of the staff report and recommendation shall be available to the public upon request at City Hall at no charge. (Ord. 00-024 § 7 (part), 2000; Ord. 99-008 § 2(A) (part), 1999)

17.200.080 Notice provisions.

A. Notice of Application. Within seven days following a determination of technical completeness under BGMC 17.200.050 for Type II and Type III applications, the city shall issue a notice of application and solicit comments from affected agencies and the public. The notice of application shall be issued prior to, and is not a substitute for, required notice of a public hearing.

1. The notice shall include, but not be limited to, the following:

a. The name of the applicant;

b. Application date;

c. Technically complete date of application;

d. The location of the project (including address and legal description);

e. A brief project description;

f. The requested approvals, actions and/or required studies;

g. The deadline for submitting comments. The comment period shall be fifteen days following the date of notice;

h. Identification of existing environmental documents to be relied upon, if any;

i. A city staff contact and phone number;

j. The applicant’s contact name and telephone number.

2. Type II and Type III Applications. The notice of application shall be posted on the subject property in two or more locations as determined appropriate by the planning director, mailed to all property owners as shown on the records of the county assessor of properties within five hundred feet of the boundary of the site, applicant, property owner and engineer/consultant, and published once in a newspaper of general circulation. The posting, publication and mailed notice shall occur on the same date.

3. A notice of application is not required for any Type I land use action.

B. Notice of Public Hearing. Notice for hearings for all Type III land use actions and all open record appeals shall be given as follows:

1. Publication at least ten days before the date of a public meeting, hearing or pending action in a newspaper of general circulation in the city;

2. At least ten days before the date of a public meeting, hearing or pending action, mailing of written notice to all property owners as shown on the records of the county assessor within five hundred feet, not including street rights-of-way, of the boundaries of the property which is the subject of the meeting or pending action, applicant, property owner and engineer/consultant;

3. Posting at least ten days before the meeting, hearing, or pending action, two or more notices, as determined necessary and appropriate by the planning director, on the subject property, one in the library and one notice in City Hall;

4. Content of Notice. The public notice shall include a general description of the proposed project, action to be taken, a nonlegal description of the property or a vicinity map or sketch, the time, date and place of the public hearing and the place where further information may be obtained;

5. Continuations. If, for any reason, a meeting or hearing on a pending action cannot be completed on the date set in the public notice, the meeting or hearing may be continued to a date certain and no further notice under this section is required.

C. Notice of Decision. A notice of decision shall be sent to the parties of record for any application subject to the notice provisions of subsection A of this section. The notice of decision shall be the appealable document in all land use actions. Notice shall be made as follows:

1. Type I Actions. The planning director shall notify the applicant of an administrative decision on a Type I land use action.

2. Type II Actions. The planning director shall notify parties of record of an administrative decision by sending a copy of the staff report and determination for the proposal. The staff report shall indicate that the decision will become final unless an aggrieved party files an appeal pursuant to BGMC 17.200.140.

3. Type III Actions. A written notice for all final decisions shall be sent to the applicant and all parties of record within ten days of the final decision. The final decision on all Type III actions shall consist of the hearing examiner’s written decision on the subject land use action.

D. In addition to the posting and publication requirements of subsection B of this section, notice of appeal hearings shall be as follows:

1. For Type I and II decisions, notice shall be mailed to the applicant and all parties of record.

2. For Type III decisions, mailing to the applicant and parties of record to the proceeding.

E. The planning director may approve, approve with conditions, or deny the following without notice to any party other than the applicant:

1. Any Type I land use action.

2. Minor amendments or modifications to approved developments or permits. Minor amendments are those which may affect the precise dimensions or location of buildings, accessory structures and driveways, but do not affect: (a) overall project character, (b) increase the number of lots, dwelling units or density, (c) decrease the quality or amount of open space, or (d) materially affect adjacent property.

3. The planning director’s decisions under this section may be appealed by the applicant pursuant to BGMC 17.200.140. (Ord. 99-008 § 2(A) (part), 1999)

17.200.090 Development review.

A. Environmental Review.

1. Development and planned actions subject to the provisions of the State Environmental Policy Act (SEPA) shall be reviewed in accordance with the policies and procedures contained in BGMC Title 18 and this chapter.

2. SEPA review shall be conducted concurrently with substantive development review and, where possible, integrated into project review. Reliance on previously complete programmatic environmental reviews (i.e., comprehensive plan EIS, subarea plans, etc.) should be relied upon whenever possible. The following are exempt from concurrent SEPA review:

a. Projects categorically exempt from SEPA;

b. Components of previously completed planned actions, to the extent permitted by law and consistent with the EIS for the planned action.

B. Substantive Development Review. Any application made pursuant to this chapter shall be evaluated against the applicable criteria governing the proposal under the Battle Ground Municipal Code. In evaluating a proposal, the planning director shall prepare a written staff report that contains criteria, analysis and legal findings as to how a proposal does, does not, or can be made to comply with the applicable criteria through conditions or mitigation imposed upon the proposal. The staff report shall serve as the notice of final SEPA threshold determination and decision or recommendation on the proposal. (Ord. 99-008 § 2(A) (part), 1999)

17.200.100 Hearings examiner review.

A. Staff Report. The planning director shall prepare a staff report on the proposed development or action pursuant to BGMC 17.200.090(B). The staff report shall include findings, conclusions and proposed recommendations for disposition of the development application.

B. Hearing. The examiner shall conduct a public hearing on development proposals for the purpose of taking testimony, hearing evidence, considering the facts germane to the proposal, and evaluating the proposal for consistency with the city’s development code, adopted plans and regulations. Notice of the examiner hearing shall be in accordance with BGMC 17.200.080(B), and conduct of the hearing shall be in accordance with BGMC 17.200.120(A) and any other rules promulgated by the examiner and approved by the city council.

C. Required Findings. The examiner shall not approve a proposed development unless he or she first makes the following findings and conclusions:

1. The development is consistent with the comprehensive plan and meets the applicable provisions of BGMC Titles 12 through 17.

D. Decision. Upon approving, conditionally approving or denying a development proposal or action, the examiner shall within fourteen days from the close of the record prepare a written decision that includes findings of fact, conclusions and final decision as provided for in BGMC 17.200.060(C). (Ord. 00-024 § 7 (part), 2000; Ord. 99-008 § 2(A) (part), 1999)

17.200.104 Post-decision review.

A. General Provisions.

1. Except for final and recorded plats and complete final site plan projects, post-decision procedures may modify a preliminarily approved development without necessarily subjecting the change to the same procedure as the original application. Such changes may be warranted by ambiguities or conflicts in a decision, by new information or laws, as a result of unforeseen physical site conditions that warrant modifications to the project, or as a desire to change aspects of a project.

2. The applicant or subsequent designee may apply for a post-decision review at any time prior to a final decision or recording of a plat. The post-decision review, which may be of any Type I, II or III decision, must be made describing the nature of the proposed change to the decision and the basis for that change, including the applicable facts and law, together with the fee prescribed for that application, as provided in the Battle Ground fee table.

3. An application for post-decision review is not subject to pre-application review, unless it is determined by the planning director that a Type III review is warranted. Post-decision review applications shall contain the submittal requirements as outlined in BGMC 17.200.050.

4. As part of a determination of completeness of an application for post-decision review of a Type I, II or III decision, the planning director shall classify the application as a Type I, II or III procedure and advise the applicant in writing of that classification. In addition, all parties of record from the original decision shall also be notified of the decision in writing. The classifications in BGMC 17.200.035 are recommended, but the classification of each post-decision review shall be based on the circumstances of that decision and the guidelines in subsection (B) of this section. The decision classifying the application shall be subject to appeal as part of the decision on the merits of the post-decision review.

5. Post-decision review cannot substantially change the nature of development proposed pursuant to a given decision. As part of a determination of completeness of an application for post-decision review of a Type I, II, or III decision, the planning director may issue a decision that the proposed change in a decision should not be subject to post-decision review; it should be subject to a new application on the merits of the request. That decision may be appealed to the hearings examiner pursuant to BGMC 17.200.100.

6. An application for post-decision review does not extend the deadline for filing an appeal of the decision being reviewed and does not stay appeal proceedings.

7. Post-decision review can only be conducted in regard to a decision that approves or conditionally approves an application. An application that is denied is not eligible for post-decision review.

B. Exceptions. The provisions in this section do not apply to the following:

1. Recorded subdivision and short plats.

2. Complete developments.

C. Classification of Post-Decision Review. At no time shall a decision be subject to a higher type post-decision procedure than the original decision.

1. An application for post-decision review is subject to a Type I review when:

a. The change reduces the potential adverse impact of the development authorized by the decision; and

b. Is consistent with the applicable law or variations permitted by law, including a permit to which the development is subject; and

c. Does not involve an issue of broad public interest, based on the record of the decision; and

d. Does not require additional SEPA review.

2. An application for post-decision review is subject to a Type II review when it:

a. Is consistent with the applicable law or variations permitted by law, including a permit to which the development is subject; and

b. Requires an additional SEPA review based on increased impacts to the threshold determination as listed in Chapter 18.115 BGMC; or

c. The change does not increase the impact, but it modifies the proposal from what was noticed to the public in the initial review and may impact neighbors or other interested parties differently than what was proposed previously; or

3. An application for post-decision review is subject to a Type III review before the hearing examiner when:

a. The proposed modification is of a Type III decision and still requires a high degree of discretionary decision making in interpreting and applying development regulations, and/or has a high degree of impact on property owners within the vicinity of the site and the public in general.

D. Vesting. Applications which qualify for post-decision review shall remain vested to the laws in place at the time of the original application vested. (Ord. 06-13 § 1, 2006: Ord. 06-07 § 12, 2006)

17.200.105 Planning commission actions.

The planning commission shall conduct public hearings and make recommendations to the city council on all legislative actions as set forth in BGMC 17.200.040(C) and pursuant to BGMC 17.200.120. (Ord. 99-008 § 2(A) (part), 1999)

17.200.110 City council actions.

A. Actions. Upon receiving a recommendation from the planning commission or notice of any other matter requiring the council’s attention, the council shall perform the following actions as appropriate:

1. Deliberate and make a decision on a planning commission recommendation based upon the closed record established by the planning commission;

2. At the council’s discretion, hold a public hearing and make a decision on the following matters:

a. Any legislative action.

B. Decisions. The city council shall make its decision by motion, resolution or ordinance as appropriate. (Ord. 04-024 § 57, 2004: Ord. 99-008 § 2(A) (part), 1999)

17.200.115 Legislative actions.

The provisions of this section shall apply to all legislative amendments to BGMC Titles 12 (Streets and Sidewalks), 15 (Buildings and Construction), 16 (Land Divisions), 17 (Zoning) and 18 (Environmental Protection) or the comprehensive plan policies or texts.

A. Legislative changes shall be considered through a Type III land use action process, with the exception of those provisions set forth in subsections B and C of this section.

B. Supplemental Procedures.

1. Upon completion of a draft of any legislative amendment to any chapter subject to this section, the planning director shall:

a. Solicit comments from affected agencies, private industries and the general public. This shall be accomplished by:

i. Sending copies of the proposed amendment to any private industry directly affected by the proposed amendment, including a cover sheet identifying the comment period expiration date. If the proposed amendment is more than twenty pages in length, a written notice of its availability may be sent in lieu of the amendment itself. Failure to send to all industries affected by the proposed change shall not be a violation of this section.

ii. Publishing notice of the proposed amendment, consistent with subsection C of this section.

b. Upon expiration of the initial comment period, the planning director shall hold a work session with the planning commission to discuss the contents of the proposed amendments. Comments that result from the work session may be incorporated into the draft amendment.

c. Hold a work session with city council on the proposed amendment as revised by the planning commission.

d. Complete the hearings process consistent with a Type III land use action.

C. Supplemental Notice Provisions. The following notice provisions shall be implemented in conjunction with any proposed legislative amendment:

1. Initial Notice. Upon completion of a draft amendment, the planning director shall publish notice of the proposed change in the newspaper of general circulation. The notice shall state the following:

a. What chapter is proposed to be amended;

b. A brief description of the proposed amendment;

c. The name and telephone number of the staff contact;

d. Where a copy of the proposed amendment may be obtained;

e. The deadline by which comments on the proposed change may be submitted.

2. Hearing Notice. Once the initial comment period has expired, the planning director shall schedule the matter for public hearing. The notice for public hearing shall be consistent with the notice provisions for a Type III application, except as follows: Notice shall be sent to parties of record who responded to the initial publication or request for comments. (Ord. 00-024 § 7 (part), 2000; Ord. 99-008 § 2(A) (part), 1999)

17.200.120 Procedures for public proceedings.

A. Hearings. Public hearings shall be conducted in accordance with the hearing body’s rules of procedure and shall serve to create or supplement an evidentiary record upon which the body will base its decision. The examiner shall open the public hearing and, in general, observe the following sequence of events:

1. Legislative Proceedings. Legislative proceedings shall generally occur as follows:

a. Staff presentation, including submittal of any administrative reports. Members of the hearing body may ask questions of the staff.

b. Applicant presentation, including submittal of any materials, if applicable. Members of the hearing body may ask questions of the applicant.

c. Testimony or comments by the public germane to the matter. Questions directed to the staff or the applicant may be posed by members of the hearing body at their discretion. Testimony does not need to be in favor or opposition, but must assure that all interested parties have the opportunity to be heard. The commission may ask questions of those testifying.

d. Rebuttal, response or clarifying statements by the staff and the applicant, as applicable.

e. The fact-gathering portion of the public hearing shall be closed and the commission shall deliberate on the matter before it.

2. Quasi-Judicial Proceedings. Quasi-judicial proceedings shall generally proceed as follows:

a. Staff presentation, including submittal of any administrative reports. The examiner or members of the hearing body may ask questions of the staff.

b. Applicant presentation, including submittal of any materials. The hearing examiner or members of the hearing body may ask questions of the applicant.

c. Testimony or comments by the public germane to the matter. Questions directed to the staff or the applicant shall be posed by the examiner or members of the hearing body, as applicable, at their discretion.

d. Rebuttal, response or clarifying statements by the staff and the applicant.

e. The evidentiary portion of the public hearing shall be closed and the examiner or hearing body shall deliberate on the matter before it.

f. In addition to the provisions of this section, any rules of procedure promulgated by the hearing examiner and approved by city council or promulgated by the planning commission shall govern public proceedings.

B. Procedures for Closed Record Appeals. Closed record appeals shall be conducted in accordance with the hearing body’s rules of procedure and shall serve to provide argument and guidance for the body’s decision. Closed record appeals shall be conducted generally as provided for public hearings. Except as provided in subsection D of this section, no new evidence or testimony shall be given or received. The parties to the appeal may submit timely written statements or arguments addressing the evidence already in the record. Such written comments shall be submitted to the planning director five days prior to the scheduled proceeding.

C. Reconsideration. A party to a public hearing or closed record appeal may seek reconsideration only of a final decision by filing a written request for reconsideration with the planning director within five days of the notice of final decision. The request shall comply with BGMC 17.200.140(D). The council or hearing body shall consider the request at its next regularly scheduled meeting, without public comment or argument by the party filing the request. If the request is granted, the council or hearing body may immediately revise and reissue its decision or may call for argument in accordance with the procedures for closed record appeals. Reconsideration should be granted only when an obvious legal error has occurred or a material factual issue has been overlooked that would change the previous decision.

D. Remand. In the event the city council determines that the public hearing record or record on appeal is insufficient or otherwise flawed, the council may remand the matter back to the hearing examiner or planning commission, as applicable, to correct the deficiencies. The council shall specify the items or issues to be considered and the time frame for completing the additional work. The council may hold a public hearing on a closed record appeal only for the limited purposes identified in RCW 34.05.562(1). (Ord. 00-024 § 7 (part), 2000; Ord. 99-008 § 2(A) (part), 1999)

17.200.130 Final decision.

A. Time. The final decision on a development proposal shall be made in accordance with the following schedule:

1. Type I within thirty days of technically complete submittal;

2. Type II within sixty days of technically complete submittal if SEPA exempt, or within ninety days of technically complete submittal, if subject to SEPA;

3. Type III within one hundred twenty days of technically complete submittal.

B. The following actions are excepted from the time frames listed in subsection A of this section:

1. Amendments to the comprehensive plan or development code;

2. Any time required to correct plans, perform studies or provide additional information; provided, that within seven days of receiving the requested additional information, the planning director shall determine whether the information is adequate to resume the project review;

3. Substantial project revisions made or requested by an applicant, in which case the time lines set forth in subsection A of this section will be calculated from the time that the city determines the revised application to be complete;

4. All time required for the preparation and review of an environmental impact statement;

5. Projects involving the siting of an essential public facility;

6. An extension of time mutually agreed upon by the city and the applicant;

7. All appeals;

8. Any remand to the hearing body;

9. All time required for the administrative appeal of a determination of significance;

10. The time frames set forth in subsection A of this section may be extended upon mutual agreement between the city and applicant.

C. Effective Date. The final decision of the council or hearing body shall be effective on the date stated in the decision, motion, resolution or ordinance; provided, that the date from which appeal periods shall be calculated shall be the date the council or hearing body takes action on the motion, resolution or ordinance. (Ord. 04-024 § 57 (part), 2004: Ord. 99-008 § 2(A) (part), 1999)

17.200.140 Appeals.

A. Administrative Decisions. Administrative decisions may be appealed, by applicants or parties of record, to the hearing examiner.

B. Appeals of Hearings Examiner. Appeals of the hearing examiner’s decision shall be directly to superior court as provided for by law.

C. Filing. All appeals to the hearing examiner shall be filed with the planning director within fifteen days after the date of the notice of decision of the matter being appealed.

1. Contents. The notice of appeal shall contain a concise statement identifying:

a. The decision being appealed;

b. The name and address of the appellant and his interest(s) in the matter;

c. The specific reasons why the appellant believes the decision to be wrong. The appellant shall bear the burden of proving the decision was wrong;

d. The desired outcome or changes to the decision;

e. The appeal fee.

D. Appeals shall be processed as a Type III action; provided, that notice of the appeal hearing shall be sent to only parties of record of the original proceeding.

E. Judicial Appeal. The decision of the hearing examiner shall be final unless timely appealed to Clark County superior court pursuant to the following:

1. Appeals of the final decision of the hearing examiner, BGMC Titles 12 through 17, and for which all other appeals specifically authorized have been timely exhausted, shall be made to Clark County superior court within twenty-one days of the date the notice of decision or action became final, unless another time period is established by state law or local ordinance.

2. Notice of the appeal and any other pleadings required to be filed with the court shall be served on the finance director, planning director, and city attorney within the applicable time period. This requirement is jurisdictional.

3. The cost of transcribing and preparing all records ordered certified by the court or desired by the appellant for such appeal shall be borne by the appellant. The appellant shall post with the finance director prior to the preparation of any records an advance fee deposit in the amount specified by the city clerk. Any overage will be promptly returned to the appellant. (Ord. 04-024 § 58, 2004: Ord. 99-008 § 2(A) (part), 1999)

Article II. Latecomers Agreements

17.200.200 Purpose.

The purpose of this article is to establish a uniform methodology and process for the administration of reimbursement contracts or development reimbursement agreements applied for after August 1, 2009, for developers in circumstances where the developer or property owner is using private funds to construct a public utility and/or street system and desires to be compensated by property owners who will be benefited by the improvements. This article is intended to establish a methodology to the agreements which are authorized under Chapters 35.72 and 35.91 RCW. (Ord. 09-07 § 1, 2009)

17.200.201 Authorization.

Any developer or property owner utilizing private funds to acquire public right-of-way and install street improvements on public right-of-way may apply to the city to establish a latecomers agreement for recovery of a pro rata share of the cost of acquiring public right-of-way, constructing streets and other public improvements within said right-of-way and for the construction of utilities known as storm sewer, sanitary sewer, or water system from other parties or landowners that subsequently develop their property that will later derive a benefit from said improvements. The city manager or designee is authorized to accept applications for the establishment by contract of an assessment reimbursement area as provided by state law, provided such application substantially conforms to the requirements of this chapter. No latecomers agreement shall extend for a period longer than fifteen years from the date of final acceptance by the city except as provided in this chapter. The city council shall have discretion to authorize or not to authorize latecomers agreements on a case-by-case basis. (Ord. 09-07 § 2, 2009)

17.200.202 Definitions.

“Adjacent” means abutting on public roads, streets, rights-of-way or easements in which street system improvements are installed or directly connecting to street system improvements through an interest in real property such as an easement or license.

“Assessment” means an equitable pro rata charge to be paid by an owner of property within the assessment reimbursement area for the cost of private construction of public street and/or utility system improvements made pursuant to a public facilities agreement.

“Assessment reimbursement area” means that area which includes all parcels of real property adjacent to street system improvements or likely to require connection to or service by utility system improvements constructed by a developer.

“Construction interest” means the sum of money to be added to the direct construction cost and reimbursed to the developer for the use of the developer’s monies during the construction term. The interest rate shall be one percent above the Federal Reserve Bank prime loan rate published most recently before the date of the preconstruction agreement. Interest accrual begins on the date of execution of the preconstruction agreement and will continue throughout the construction term.

Construction interest shall be computed utilizing the two-thirds rule; i.e., direct cost of construction times construction interest rate divided by three hundred sixty-five times the construction term expressed in days times 0.67 equals construction interest.

“Construction term” means that period of time between the date of execution of the preconstruction agreement and the date of the acceptance of the project by the city or the construction completion date as set forth in the preconstruction agreement, whichever occurs first.

“Cost of construction” is the sum of the direct construction costs incurred to construct the street and/or utility system improvements plus indirect costs which are limited to the city latecomer administrative fee (BGMC 17.200.213), construction interest and developer administrative costs as defined in this section. Direct construction costs include but are not limited to all related design services, engineering, surveying, legal services, bonding costs, environment mitigation, relocation and/or new construction of private utilities as required by the city, relocation and/or installation of street lights, relocation and/or installation of signage, acquisition of right-of-way and/or easements, government agency fees, testing services, inspection, plan review and approval, labor, materials, equipment rental, and contractor and/or subcontractor fees or charges.

“Developer” means the individual or entity that contracts with the city for the construction of street and/or utility system improvements, where such improvements are a requirement for development of real property owned by such entity or individual.

“Developer administrative costs” means all indirect costs incurred by the developer in the creation and execution of a preconstruction agreement and managing the project, such as office supplies, mailings, clerical services, telephone expenses, accounting expenses, project oversight, and the like, and any costs associated with the creation of a developer reimbursement agreement. Administrative costs shall not exceed three percent of all direct construction costs.

“Developer reimbursement agreement” means a written contract between the city and one or more developers providing partial reimbursement of cost of construction of street system improvements and/or utility system improvements to the developer by owners of property who are likely to utilize the improvements and who did not contribute to the original cost of construction.

“Direct connection” means a service connection to be owned and maintained by the property owner and not the city.

“Preconstruction agreement” means any agreement entered into by an individual or entity with the city for the purpose of constructing public improvements that are required to be constructed by the city as a prerequisite to the development of real property.

“Street system improvements” means public street and alley improvements made in existing or subsequently dedicated or granted rights-of-way or easements and any improvements associated therewith, including but not limited to such things as acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, grading, paving, installation or relocation of curbs, gutters, pedestrian facilities, street lighting, bike lanes, traffic control devices, relocation and/or construction of private utilities as required by the city.

“Utility system improvements” means public water, sewer and public or private storm drainage system improvements including but not limited to the acquisition of right-of-way and/or easements, design, engineering, surveying, inspection, testing, connection fees, and installation of improvements as required by the city and includes but is not limited to the following:

1. Water system improvements including but not limited to such things as treatment facilities, reservoirs, wells, mains, valves, fire hydrants, telemetry systems, pumping stations, and pressure reducing stations;

2. Sewer system improvements including but not limited to such things as treatment plants, gravity mains, lift stations, force mains and telemetry systems;

3. Storm sewer system improvements including but not limited to such things as water quality structures and systems, detention and retention facilities, and storm water collection and conveyance facilities. (Ord. 09-07 § 3, 2009)

17.200.203 Application for developer reimbursement agreement.

A. Any developer using private funds to construct street system improvements and/or utility system improvements in the city or within the city’s utility service area may apply to the city for a developer reimbursement agreement in order to recover a pro rata share of the cost of construction from other property owners that will later derive a benefit from the sewer and/or utility system improvements made by the developer.

B. The application for developer reimbursement agreement shall be made within thirty days after the date street and/or utility system improvements have been improved and accepted by the city. “Acceptance by the city” shall mean, for purposes of this section, the date the public facilities are conveyed to the city by a deed of conveyance or other equivalent written document. The application shall be made on forms prepared by the community development department and shall be accompanied by the city administrative fee set forth in BGMC 17.200.213. The application shall contain the following information:

1. A legal description of the developer’s property;

2. A legal description of the properties within the developer’s proposed assessment reimbursement area together with the name and address of the owners of each property as shown on the records of the assessor’s office of Clark County;

3. Vicinity maps of the developer’s property;

4. An itemization including receipts of all costs of the street or utility project including but not limited to: design, grading, paving, installing of curbs, gutters, storm drainage, sidewalks, street lights, engineering, construction, water lines, sewer lines, disposal plants, pumping stations, hydrants, reservoirs, property acquisition, costs of preparing the developer reimbursement agreement and contract administration;

5. A proposed assessment reimbursement roll stating that the proposed assessment for each separate parcel of property with the proposed assessment reimbursement area as determined by apportioning the total project cost on the basis of the benefit of the project to each such parcel of property within said area; and

6. Copies of executed deeds and/or easements in which the applicant is the grantee for all properties necessary for the installation of such street or utility project.

C. Within thirty days of the community development department receiving the application for a development reimbursement agreement, the community development department will provide the applicant written notice of whether the application is complete and, if incomplete, what must be done for the application to be considered complete. The applicant will have no more than thirty days from the date of the written notice to respond and provide the information required to complete the application or, if the applicant cannot submit the required information within the thirty-day period, the applicant shall provide the city a written explanation of why they cannot provide the information within the designated timeframe and a date that the requested information will be submitted. The director of community development may grant the applicant an extension of not more than sixty days to submit the required information. If the required information is not submitted within the timeframe allowed, the city may reject the application as untimely.

D. The director of community development shall establish policies and procedures for processing application and complying with the requirements of this article. (Ord. 09-07 § 4, 2009)

17.200.204 Preliminary determinations.

The department of community development shall formulate a preliminary assessment reimbursement area and preliminary assessment for real property benefited by the street and/or utility system improvements based on the following and provide the same to the developer:

A. The likelihood that benefited property will be developed within fifteen years from the date of recording of the developer reimbursement agreement.

B. The likelihood that, at the time of development of the benefited property, such property will not be required to install similar street and/or utility system improvements because they were already installed by the developer.

C. For street system improvements, that benefited parcels are adjacent to such street system improvements.

D. For utility system improvements, the likelihood (1) that such improvements will be tapped into or used (including not only direct connections but also connections to laterals or branches connecting thereto) by properties within the assessment reimbursement area; or (2) that such properties will receive a special benefit from the utility system improvements such as, but not limited to, pump stations, sewer lift stations, and additional utility pipe depth to accommodate future utility expansion.

E. An equitable allocation of the cost of construction among the properties within the assessment reimbursement area, so that each pays for benefits attributable to those improvements. The method or methods used to calculate the allocation of the assessment may be either front footage, number of units, square footage, or may be the zone and termini method or other recognized methods reasonably calculated to equitably allocate the assessment. (Ord. 09-07 § 5, 2009)

17.200.205 Preliminary determination notice.

A. The preliminary assessment reimbursement area and the preliminary reimbursement formulated by the community development department shall be sent by certified mail to the property owners of record within the preliminary assessment reimbursement area in accordance with Chapter 35.72 RCW, as from time to time amended.

B. The applicant or any property owner within the preliminary assessment reimbursement area may, in writing within twenty days of mailing of the notice, request a hearing to be held before the hearing examiner pursuant to this chapter to contest the preliminary assessment reimbursement area and preliminary assessment. Notice of such hearing shall be given to all property owners within the preliminary assessment reimbursement area and the hearing before the hearing examiner shall be conducted as soon as is reasonably practical. The procedure contained in Article I of this chapter shall govern the hearing. After the hearing, the hearing examiner shall develop a report with findings of fact, conclusions of law and recommendations to the city council regarding establishing the assessment reimbursement area and the assessment of each property within the assessment reimbursement area. The city council shall consider the record developed before the hearing examiner and the hearing examiner’s report. The city council may allow public comment on the hearing examiner’s report and, if a majority of the council finds the record insufficient, may add to the record. After considering the record, the hearing examiner’s report and public comment thereon, if any, the city council may adopt or reject the hearing examiner’s recommendations in whole or in part or it may render its own findings and conclusions. The city council is the final authority to establish the assessment reimbursement area and the assessment of each property within the reimbursement area. The city council’s determination of the assessment reimbursement area and the assessment shall be determinative and final.

C. In the event no written request for a hearing is received as required, the determination of the community development department shall be final. (Ord. 09-07 § 6, 2009)

17.200.206 Assessment methods.

The city manager or designee shall use a method of assessment which is based on the benefit to the property owner from the project. The methods of assessment as authorized in Chapter 35.44 RCW for local improvement districts may be used. (Ord. 09-07 § 7, 2009)

17.200.207 Assessment reimbursement agreement.

Based upon the preliminary assessment reimbursement area and the preliminary assessment, if no hearing is requested, or based upon the city council’s determination of the assessment reimbursement area and the assessment if a hearing has been requested, the department of community development shall prepare and give to the applicant a development reimbursement agreement or a developer may provide a developer reimbursement agreement to the department of community development for review. (Ord. 09-07 § 8, 2009)

17.200.208 Contract approval, execution and recording.

Following direction of the city council, a developer reimbursement agreement shall be prepared and submitted to the city council for final approval. Within thirty days of final city council approval of the developer’s reimbursement agreement, the applicant shall execute and present such agreement for the signature of the appropriate city officials. The developer reimbursement agreement must be recorded in the Clark County auditor’s office within thirty days of the final execution of the agreement. If it is so filed and recorded, it shall be binding on owners of record within the assessment area who are not a party to the agreement. (Ord. 09-07 § 9, 2009)

17.200.209 Effect of developer reimbursement agreement.

A. Any property described and recorded with the developer reimbursement agreement shall be subject to the assessment after it has been approved by the city pursuant to this chapter and the developer reimbursement agreement recorded in the Clark County auditor’s office.

B. The city shall not issue a building permit or any other land use development permit or approval nor grant permission to use water or sewer service unless the city has received full payment of the assessment, including interest applicable to the property connecting to or using the street and/or utility system improvements constructed by the developer; provided, if the developer reimbursement agreement validity is challenged, the city reserves the right to issue a permit approval of permission without liability or prejudice to the city and without prejudicing the developer’s rights or remedies under this chapter or otherwise at law or in equity.

C. If improvements are made to a property adjacent to a street improvement or if a property connects to a utility system improvement without payment of an assessment otherwise due, the amount of such assessment shall be a binding obligation upon the owner of record and its successors of the affected property.

D. Failure by a property owner to pay the assessment due within one hundred eighty days of notice to this effect shall entitle the developer to foreclose against the property in the same manner as a mortgage and shall entitle it, the developer, to recover reasonable costs and attorney’s fees.

E. Each developer reimbursement agreement shall be valid for a period not to exceed fifteen years from the date of its recording.

The agreement may provide for an extension of the fifteen-year reimbursement period for a time not to exceed the duration of any moratorium, phasing ordinance, concurrency designation, or other governmental action that prevents making applications for, or the approval of, any new development within the benefit area for a period of six months or more. Any extension must specify the duration of the contract extension and must be filed with the county auditor. Property owners affected by the reimbursement agreement shall be notified of any extension.

F. Each assessment established by the developer reimbursement agreement shall bear interest from the date of recording of the developer reimbursement agreement and an interest rate fixed at the Federal Reserve rate for a two-year Treasury note as determined on the date of recording of the development reimbursement agreement. (Ord. 09-07 § 10, 2009)

17.200.210 Consistency with capital facilities plans and funding mechanisms.

The financing of improvement projects as contained within this chapter is a method to provide the developer or property owner an opportunity to recover or reimburse itself from other property owners who may benefit from their improvements. If the developer or property owner takes advantage of impact fee credits or system development charges credit or other similar credits or offsets which the city has in place to assist in the development of the community, said credits shall be credited against the costs sought by the developer for reimbursement. To be eligible for this developer reimbursement agreement process, the improvements installed by the developer or property owner shall be consistent with the city’s established capital facility plans. The street and/or utilities improvements which are the subject of the developer reimbursement agreement must be improvements that are required as a condition of approval for property development of the developer or property owners. (Ord. 09-07 § 11, 2009)

17.200.211 City funding.

As an alternative to financing projects under this chapter solely by owners of real estate, the city may join in the financing of improvements project and may be reimbursed in the same manner as the owners of real estate who participate in the projects, if the city has specified conditions of its participation in an ordinance. As another alternative, the city may create an assessment reimbursement area on its own initiative without the participation of a private property owner, finance the costs of the road and street improvements or utility improvements, and become the sole beneficiary of the reimbursements that are contributed. The city may be reimbursed only for the costs of improvements that benefit that portion of the public who will use the developments within the assessment reimbursement area established pursuant to this chapter. No city costs for improvements that benefit the general public may be reimbursed. (Ord. 09-07 § 12, 2009)

17.200.212 Rights and nonliability of city.

The city reserves the right to refuse to enter into any development reimbursement agreement or to reject any application therefor. All applications for a developer reimbursement agreement shall be made on the basis that the applicant releases and waives any claims for any liability of the city in establishment or enforcement of developer reimbursement agreements. The city shall not be responsible for locating any beneficiary or surviving beneficiary entitled to benefits by or through the developer reimbursement agreements. Any collected funds unclaimed by a developer after three years from the expiration of the agreement shall be deposited in the city’s capital fund. Any remaining undelivered funds shall inure to the benefit of the capital fund approved by the city council. Each agreement shall include a provision that every two years a property owner entitled to reimbursements shall provide the city with contact information. (Ord. 09-07 § 13, 2009)

17.200.213 City administrative fees.

The city shall adopt a charge for processing developer reimbursement agreements which shall be one percent of the cost of construction. Further, for every separate parcel of property within the applicant’s proposed assessment reimbursement area, one hundred fifty dollars shall be added to the base fee established pursuant to the above schedule to be assessed and collected from the individual property owner. (Ord. 09-07 § 14, 2009)