Chapter 20.07
CLOSED RECORD APPEALS

Sections:

20.07.001    Appeals of decisions.

20.07.002    Consolidated appeals.

20.07.003    Standing to initiate an administrative appeal.

20.07.004    Appeals of recommendations and decisions – Permit decisions or recommendations.

20.07.005    Procedure for closed record decision/appeal.

20.07.006    Judicial appeals.

20.07.007    Resubmission of application.

20.07.001 Appeals of decisions.

A. “Closed record appeal” means an administrative appeal on the record to the city council, following an open record public hearing on a development project permit application when the appeal is on the record with no new evidence or information allowed to be submitted, except as provided in ECDC 20.07.005(B), and only appeal argument allowed.

B. The right of appeal for all permit applications and Type V land use decisions shall be as described in the matrix set forth in ECDC 20.01.003. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].

20.07.002 Consolidated appeals.

All appeals of development project permit application decisions, other than appeals of determinations of significance (“DS”), and exempt permits and approvals under ECDC 20.01.007, shall be considered together in a consolidated appeal using the appeal procedure for the highest type permit application. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].

20.07.003 Standing to initiate an administrative appeal.

A. Limited to Parties of Record. Only parties of record may file an administrative appeal.

B. Definition. The term “parties of record,” for the purposes of this chapter, shall mean:

1. The applicant;

2. Any person who testified at the open record public hearing on the application;

3. Any person who individually submits written comments concerning the application at the open record public hearing (or to staff if an appeal of a Type II decision). Persons who have only signed petitions are not parties of record; and/or

4. The city of Edmonds. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].

20.07.004 Appeals of recommendations and decisions – Permit decisions or recommendations.

Appeals of a hearing body’s recommendation or decision on a permit application shall be governed by the following:

A. Standing. Only parties of record have standing to appeal the hearing body’s decision.

B. Time to File. An appeal must be filed within 14 days after the issuance of the hearing body’s written decision. The appeal period shall be extended for an additional seven days, if state or local rules adopted pursuant to Chapter 43.21C RCW allow public comment on a determination of nonsignificance issued as part of the appealable project permit decision. Appeals, including fees, must be received by the city’s development services department by mail or by personal delivery at or before 4:00 p.m. on the last business day of the appeal period. Appeals received by mail after 4:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.

C. Computation of Time. For the purposes of computing the time for filing an appeal, the day the hearing body’s decision is issued shall not be counted. If the last day of the appeal is a Saturday, Sunday, legal holiday designated by RCW 1.16.050 or by a city ordinance, or any day when City Hall or the city’s development services department is closed to the public by formal executive or legislative action, then the appeal may be filed on the next day that is not a Saturday, Sunday, holiday or closed day.

D. Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee as set forth in the city’s adopted fee resolution, and contain the following information:

1. Appellant’s name, address and phone number;

2. A statement describing appellant’s standing to appeal;

3. Identification of the application which is the subject of the appeal;

4. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts in the record;

5. The specific relief sought;

6. A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature.

7. All written submittals should be typed on letter size paper (eight and one-half by 11), with one-inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12), single sided.

E. Effect. The timely filing of an appeal shall stay the hearing body’s decision until such time as the appeal is concluded or withdrawn.

F. Notice of Appeal. The development services director (hereinafter the “director”) shall provide mailed notice of the appeal to all parties of record as defined in ECDC 20.07.003. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].

20.07.005 Procedure for closed record decision/appeal.

A. Closed record appeals shall be based on the record established at the open record hearing before the hearing body/officer whose decision is appealed, which shall include the written decision of the hearing body/officer, copies of any exhibits admitted into the record, and official transcript, minutes or tape recording of the proceedings.

1. At his/her own expense, a party to the appeal may have the official tape recording of the open record hearing transcribed; however, to be admitted into the record, the transcription must be performed and certified by a transcriber that is pre-approved by the city. In addition, the certified transcription must be received by the city directly from the transcriber at least 16 working days before the date scheduled for the closed record review. It shall be each party of record’s responsibility to obtain a copy of the transcription from the city.

2. The director shall maintain a list of pre-approved transcribers that are court approved; and if needed, shall coordinate with parties to the appeal so that no more than one official transcription is admitted into the record.

B. No new testimony or other evidence will be accepted by the city council except: (1) new information required to rebut the substance of any written or oral ex parte communication provided during an appearance of fairness disclosure; and (2) relevant information that, in the opinion of the city council, was improperly excluded by the hearing body/officer.

1. Appellants who believe that information was improperly excluded must specifically request in writing within five working days of the appeal deadline that the information be made part of the record. The request shall be addressed to the city council president, describing the information excluded, its relevance to the issues appealed, the reason(s) that the information was excluded by the hearing body/officer, and the reason why the hearing body/officer erred in excluding the information.

2. In determining whether the information should be admitted, the city council president may request other parties of record to submit written arguments rebutting the above. Nonresponse by the city council president within five working days of the initial request that the information be made part of the record shall constitute a rejection of the same.

C. Parties to the appeal may present written arguments to the city council. Arguments shall describe the particular errors committed by the decisionmaker, with specific references to the administrative record. The appellant shall bear the burden to demonstrate that the decision is clearly erroneous given the record.

D. While not required, appellant may submit his or her written arguments 12 working days before the date scheduled for the closed record review. Parties of record, except for the appellant, may submit his or her written arguments or respond in writing to appellant’s arguments no later than seven working days before the closed record review. Appellant may rebut in writing to responses submitted by parties of record no later than four working days before the closed record review. If the applicant is not the appellant, applicant may submit a final surrebuttal in writing to appellant’s rebuttal no later than two working days before the closed record review.

E. Written arguments, responses, rebuttal and surrebuttals must be received by the city’s development services department by mail or personal delivery at or before 4:30 p.m. of the date due. Late submittals shall not be accepted. Submittals received by mail after 4:30 p.m. on the last day of the appeal period will not be accepted, no matter when such submittals were mailed or postmarked. It shall be the responsibility of the parties involved to obtain for their own use from the city copies of written arguments, responses, rebuttals and surrebuttals submitted.

F. All written submittals should be typed on letter size paper (eight and one-half by 11), with one-inch margins, using readable font type (such as Times New Roman) and size (no smaller than 12), single sided, double spaced and without exceeding 12 pages in length, including exhibits, if any. Exhibits that are not already in the record shall not be allowed.

G. The review shall commence with the resolution of appearance of fairness issues, if any, followed by the opportunity for oral presentations by the director and other parties of records, including the appellant. After the presentations, the city council may ask clarifying questions on disputed issues to parties of record, with an opportunity for the director, appellant and/or applicant, respectively, to rebut to the response. The city council shall not request information outside the administrative record.

If information outside the administrative record is offered (in written submittals or oral presentation) by a party of record, it shall be the responsibility of other parties of record opposing the same to timely object and provide justification in support of the objection. Objections to information outside the administrative record shall be brought before the city council begins deliberations. The party offering the information shall have the opportunity to show where in the record said information is contained.

H. The city council shall determine whether the decision by the hearing body/officer is clearly erroneous given the evidence in the record. The city council shall affirm, modify or reverse the decision of the hearing body/officer accordingly. Upon written agreement by the applicant to waive the requirement for a decision within the time periods set forth in RCW 36.70B.080, as allowed by RCW 36.70B.080(3), the city council may remand the decision with instructions to the hearing body for additional information.

I. Notice of Final Decision on Closed Record Appeal. The director shall issue a notice of final decision on closed record appeal in the manner set forth and to the persons identified in ECDC 20.06.009. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].

20.07.006 Judicial appeals.

The city’s final decision on an application may be appealed by a party of record with standing to file a land use petition in Snohomish County superior court. Such petition must be filed within 21 days after issuance of the decision, as provided in Chapter 36.70C RCW. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].

20.07.007 Resubmission of application.

Any permit application or other request for approval submitted pursuant to this chapter that is denied shall not be resubmitted or accepted by the director for review for a period of 12 months from the date of the last action by the city on the application or request unless, in the opinion of the director, there has been a significant change in the application or a significant change in conditions related to the impacts of the proposed project. [Ord. 3817 § 6, 2010; Ord. 3736 § 4 (Exh. A), 2009].