Chapter 15.22
Decision Criteria

Sections:

15.22.010 Purpose

15.22.020 Variance

15.22.030 Conditional Use Permit (CUP)

15.22.035 Siting of Essential Public Facilities

15.22.050 Zone Reclassification (Rezone)

15.22.055 Development Agreements

15.22.060 Hearing Examiner Development Review Process

15.22.065 Appeal Process

15.22.070 Severability

15.22.010 Purpose

The purposes of this chapter are to allow for consistent evaluation of land use applications and any other quasi-judicial matters considered by the Hearing Examiner pursuant to the applicable ordinances and authority, and to protect nearby properties from the possible effects of such requests by:

A.  Providing clear criteria on which to base a decision;

B.  Recognizing the effects of unique circumstances upon the development potential of a property;

C.  Avoiding the granting of special privileges;

D.  Avoiding development which may be unnecessarily detrimental to neighboring properties;

E.  Requiring that the design, scope and intensity of development is in keeping with the physical aspects of a site and adopted land use policies for the area; and

F.  Providing criteria which emphasize protection of the general character of neighborhoods. (Ord. 01-1022 § 2; Ord. 99-1045 § 2; Ord. 92-1041 § 1)

15.22.020 Variance

A.  A variance is a request for an exception to the development standards of the code because of special circumstances (i.e., size, shape, topography of lot, conflict with Growth Management Policies) when the strict application of the code deprives such property of privileges enjoyed by other similar properties. A variance is granted through the public hearing process; the Hearing Examiner may grant a variance when a hardship is proven. A variance cannot be used for relief from types of uses permitted within zone classifications.

B.  The applicant must show that the proposed development issue requiring a variance meets all of the following criteria for approval by the Hearing Examiner, except as specified in subsection (C) of this section:

1.   There are exceptional circumstances applicable to the property;

2.   The variance is necessary to protect a property right possessed by others;

3.   The variance will not harm the public welfare of adjacent properties;

4.   There is no reasonable alternative that will allow a reasonable use of the land or building;

5.   The special circumstances and conditions do not result from the actions of the applicant;

6.   The requested variance will not create a use not generally permitted within the zone classification in which the subject property is located;

7.   The variance is the minimum necessary to grant relief to the applicant.

C.  A variance from the height limitations specified in SMC 15.31.040(B) may be granted only in situations where all of the following criteria are met. These criteria shall apply in lieu of those specified in subsection (B) of this section.

1.   The specified height limit would have the effect of precluding the provision of commercial wireless communication service;

2.   The variance is necessary to protect a property right possessed by others;

3.   The variance will not harm the public welfare of adjacent properties;

4.   The requested variance will not create a use not generally permitted within the zone classification in which the subject property is located;

5.   The variance is the minimum necessary to grant relief to the applicant;

6.   Any request for a variance from height limits shall include a written report that specifies:

a.   The necessity of the site to provide the communication coverage required by the applicant; and

b.   The necessity of the requested height as the minimum necessary to provide the communication coverage required by the applicant.

      An assessment of all possible alternatives that could meet the service provider’s system coverage requirements. The alternatives assessment shall include alternative sites, alternative antenna types, and any other mechanism that could make the additional height unnecessary in terms of meeting the service provider’s system coverage needs. (Ord. 97-1013 § 25; Ord. 92-1041 § 1)

15.22.030 Conditional Use Permit (CUP)

A.  A major conditional use permit (CUP) is a permit granted by the Hearing Examiner which sets special conditions regarding a use in a zone where the use is not permitted outright due to the nature of impacts created by the use.

B.  A minor conditional use permit is a permit granted by the City Manager, or designee, to allow the expansion of an existing legal conditional use, pursuant to the criteria set forth in SMC 16.03.050, or to allow permitting of a wireless telecommunications facility pursuant to SMC 15.31.030, subject to the criteria set forth in SMC 16.03.050.

C.  The CUP process is a means of imposing special conditions and requirements on development, so that the compatibility of uses shall be maintained considering other existing and potential uses within the general area where the conditional use is proposed. Conditions imposed on a CUP will reasonably assure that a nuisance or hazard to life or property will not occur. The CUP process is not a means to reduce the requirements of a zone classification where the conditional use is proposed.

D.  The applicant must show that the proposed development satisfies all of the following criteria for approval by the Hearing Examiner or City Manager, or designee:

1.   The proposed use is listed as a conditional use under the zone classification use charts, Chapter 15.12 SMC;

2.   The site is adequate in size and shape for the proposed project and the use conforms to the general character of the neighborhood;

3.   The unique character of topography, arterial streets and adjacent land use complement the proposed conditional use;

4.   The conditional use would not be detrimental to surrounding land use;

5.   Modifications to standards are limited to those which will mitigate impacts in a manner equal to or greater than the standards of this code;

6.   The conditional use is such that pedestrian and vehicular traffic associated with the use will not be hazardous or conflict with existing and anticipated traffic in the neighborhood; and

7.   The conditional use will be supported by adequate public facilities or services, and will not adversely affect public services to the surrounding area unless conditions can be established to mitigate adverse impacts. (Ord. 98-1036 § 2; Ord. 97-1011 § 10; Ord. 92-1041 § 1)

15.22.035 Siting of Essential Public Facilities

A.  Purpose. The purpose of this section is to establish a formal process for identifying and siting of essential public facilities (EPFs) as defined in SMC 15.10.249.

B.  Included Essential Public Facilities. EPFs subject to this section include, but are not limited to, those facilities identified in SMC 15.10.249, the Seattle-Tacoma International Airport, Interstate 5, State Route 509 (both current and proposed extensions), State Route 518, the Federal Detention Center, the King County Bow Lake Solid Waste Transfer Station, and the Sound Transit’s “LINK” Light Rail System.

C.  Threshold Review.

1.   During or within forty-five (45) days subsequent to the mandatory preapplication Development Review Committee meeting required by SMC 16.05.020, the Director of Planning and Community Development shall make a threshold determination, and advise the potential applicant in writing of such determination, whether the proposed project is an EPF and, if so, whether it is difficult to site. In making said determinations, the Director shall broadly and liberally apply the definition of an EPF in consideration of the full range of proposed and potential services to be provided to the public, whether provided directly by, funded by, or contracted for by a governmental agency, or provided by a private entity or entities subject to public service obligations. The determination of whether an EPF will be difficult to site shall be made by the director, upon known or reasonably perceived and articulable facts. Proposed projects determined not to be EPFs, and proposed projects determined to be EPFs but also determined to be not difficult of siting, shall be reviewed and processed as any other similar project pursuant to the City Development Code without regard to this section.

2.   The interlocal agreement dated September 4, 1997, (ILA) between the City of SeaTac and Port of Seattle specifically lists airport master plan projects in Attachment A-1 to Exhibit A and other uses in its Attachment A-2 to Exhibit A. The ILA does not determine whether the listed projects and uses are EPFs but Section 2 of the ILA provides that these projects and uses shall be reviewed and developed pursuant to the standards in the ILA. Therefore, and due to the extensive public and environmental review of the airport master plan, the City’s EPF siting process is deemed complete for the projects listed in the ILA’s Attachment A-1 to Exhibit A, “List of Port Master Plan Projects” and for uses that are defined under State law to be airport uses. However, this chapter shall apply to any nonairport uses which otherwise meets the definition of an EPF in SMC 15.10.249.

D.  Applications for EPF Projects. All proposed projects determined to be EPFs and determined to be difficult to site or expand shall be reviewed and conditioned in accordance with all requirements of this code and, in addition, with the conditional use permit procedure, herein referred to as the CUP-EPF review procedure. All applications shall contain the following information:

1.   A detailed written description of the proposed and potential public services to be provided, the source or sources of funding, and identification of any applicable public regulatory agencies;

2.   A written statement of the need, in statistical or narrative form, for the proposed project currently and over the following ten (10) year period;

3.   An inventory of known, existing or proposed facilities, by name and address, within King County, or within the region, serving the same or similar needs as the proposed project;

4.   An explanation of the need and suitability for the proposed facility in the proposed City location(s);

5.   An assessment of the suitability of the proposed location in the City or another jurisdiction in terms of local, County, regional and/or State needs in order to minimize public costs (where appropriate) and environmental impacts, to discern the suitability of the facility’s location in the City or within another jurisdiction, to determine the number of jurisdictions affected or served by the proposed EPF, and to decide what interjurisdictional approach is most appropriate;

6.   An analysis of the environmental, social, economic, financial and infrastructure impacts of the proposed EPF, including an assessment of the proportionate financial impacts on affected jurisdictions, and consideration copies of agreements which allocate the financial burdens of the proposed project on the City and other jurisdictions;

7.   An analysis of the proposal’s consistency with the City of SeaTac Comprehensive Plan and development regulations, and plans and policies of other affected jurisdictions, including but not limited to King County Countywide Planning Policies F-217 to F-220;

8.   Documentation of public involvement efforts to date, including public and agency comments received, and plans for future public participation;

9.   Such information as requested by staff to complete the preliminary analysis and/or information to assist the Ad Hoc Committee City staff and City Council in making the final determination on the CUP-EPF.

E.  CUP-EPF Review Process. All EPFs, once determined by the City not to be exempt as an EPF, shall be subject to the following CUP-EPF review procedure:

1.   Project Notification. The applicant, after a preapplication meeting, shall notify the City as soon as possible of intent to submit a CUP-EPF review application. If the applicant does not notify the City of a pending EPF review application, the City may make an initial determination of whether the proposed project is subject to CUP-EPF review, and shall notify the project proponent, in writing, of the City’s determination.

2.   Environmental Review. The EPF project shall comply with all applicable SEPA/NEPA requirements and the proponent shall mitigate identified environmental impacts as conditions of CUP-EPF approval.

3.   Formation of Ad Hoc Committee. The City Council shall establish an Ad Hoc Committee by appointing up to seven (7) members and the Planning Commission appointing one (1) member, for each CUP-EPF application. The Ad Hoc Committee may include representatives of the Planning Commission or other persons with detailed knowledge of City land use or transportation issues. The Ad Hoc Committee shall be appointed by the City Council within seventy-five (75) days of the determination by the Director of Planning and Community Development that the proposed project is an EPF, pursuant to SMC 15.22.035(C)(1).

a.   The City Council will establish a time frame of between thirty (30) to sixty (60) days, unless a longer time frame is necessary due to an EPF project timeline, in which the Ad Hoc Committee must review, consult and issue a preliminary recommendation. At the end of the thirty (30) to sixty (60) day period, this time frame may be extended only by the authority of the City Council, and shall not be extended more than a maximum of three (3) such time periods, unless the applicant agrees that more time is needed.

b.   Prior to accepting an appointment on the Ad Hoc Committee, an appointee must divulge any vested interest in any properties or businesses, the value of which could be substantially affected by the committee’s recommendation.

4.   Ad Hoc Committee Review and Coordination. City staff shall prepare an analysis of the CUP-EPF application for use of the Ad Hoc Committee. The Ad Hoc Committee shall review the analysis and the EPF project under the criteria of subsection (F) of this section and prepare draft recommendations on each of the following:

a.   Whether the project is consistent with each of the Ad Hoc Committee review criteria, subsection (F) of this section; and

b.   Whether the project should include a special district overlay zone (defined in Chapter 15.28 SMC); and

c.   Conditions or restrictions for siting and mitigating the impacts of the proposed EPF under the authority of the City’s SEPA ordinances, Comprehensive Plan and development regulations.

      The Ad Hoc Committee shall present its draft recommendations to the Planning Commission and, upon receiving input of the Planning Commission, shall prepare final written recommendations to the Hearing Examiner or City Council.

5.   City Council Determination. The City Council shall determine if an essential public facility application shall be heard by the Hearing Examiner or City Council, based on the following factors:

a.   Size of project;

b.   Area of City affected by proposed project;

c.   Environmental impact on sensitive areas;

d.   Timing of project.

6.   Staff Report. The Department of Planning and Community Development shall prepare a staff report, which shall include Planning Commission comments, as well as the final recommendations of the Ad Hoc Committee. The staff report shall also include an evaluation of the consistency of the proposed EPF, as recommended by the Ad Hoc Committee, with the City’s adopted Comprehensive Plan and development regulations, and shall include proposed findings, conclusions and proposed recommendations for disposition of the proposed CUP-EPF to the designated hearing body for a public hearing.

7.   Public Hearing and Decision. The designated hearing body shall hold a public hearing pursuant to SMC 16.03.040 to make findings and issue a decision. The notice of such public hearing shall be consistent with Chapter 16.09 SMC.

F.  Ad Hoc Committee Review Criteria. The Ad Hoc Committee shall determine whether the proposed EPF is consistent with the following criteria:

1.   The feasibility of the proposed facility and whether there is a more appropriate siting alternative for the proposed facility.

2.   The proposed site is adequate in size and shape for the proposed project and the use conforms, or can aesthetically conform, to the general character of the neighborhood.

3.   The proportionate financial burdens of the proposed EPF on the City and other affected jurisdictions, and whether they are reasonably mitigated as provided in an inter-jurisdictional agreement, or by other means.

4.   The proposed EPF is consistent with the following:

a.   Availability and physical constraints of land.

b.   Compatibility with adjacent and nearby land uses.

c.   Mitigation of likely adverse environmental impacts, including but not limited to erosion, sensitive areas, noise, odor, traffic, and air and water quality.

d.   Basic infrastructure standards, such as vehicular traffic, and the availability of necessary utilities and services.

e.   The City of SeaTac’s Comprehensive Plan and development regulations, and the plans and policies of other affected jurisdictions.

f.   Applicable City inter-jurisdictional agreements.

g.   Siting of secure community transition facilities must be in accordance with the siting criteria of Chapter 71.09 RCW, and regulations adopted pursuant thereto. In addition, no secure community transition facility shall be sited closer than 330 feet from any residentially zoned property.

G.  Designated Hearing Body Review Criteria. The designated hearing body, giving substantial weight to the recommendations of the Ad Hoc Committee and the staff report, shall review the application under the following criteria:

1.   Whether the proposed action as recommended by the Ad Hoc Committee is consistent with the criteria established under subsection (F) of this section;

2.   Whether modifications to recommended conditions or restrictions, if any, are adequate to mitigate impacts in a manner which meets the standards of this code and any related development agreement; and

3.   Whether project conditions cumulatively are reasonable and would not preclude development of the EPF.

H.  Designated Hearing Body Final Decision. Recognizing that RCW 36.70A.200(2) prohibits the City from precluding the siting of an essential public facility, if the permit application proposes siting of a project in a location other than the City’s preferred location, if any, the hearing body shall provide at least fourteen (14) days’ public notice, and written notice to the applicant, of an additional public hearing on the application. At the additional public hearing, the applicant shall present information as to why the City’s preferred location, rather than the location applied for, will preclude development of the project. The applicant shall provide any engineering, financial and other studies and information necessary to explain its position. The hearing body, with additional analysis and input from City staff, if requested, shall make findings and a decision as to whether siting the project at the City’s preferred location would be impossible, impracticable, or otherwise preclusive. The said findings and decision shall not be deemed, however, to limit the authority of a regional decision-making body, under law now existing or subsequently amended, to determine where its facilities shall be sited. This section shall not apply to the siting of secure community transition facilities. (Ord. 02-1029 §§ 6 – 9; Ord. 02-1008 § 2; Ord. 00-1001 §§ 1, 2; Ord. 98-1037 § 2)

15.22.050 Zone Reclassification (Rezone)

A.  The purpose of a rezone is to provide a change of zoning to allow a new or different land use which conforms with the City Comprehensive Plan. A rezone is necessary when there has been a change in conditions, and the Comprehensive Plan may or may not provide for such a use. A proposed use and site plan must be submitted with the rezone request. Property specific conditions may be imposed as a condition to the rezone pursuant to SMC 15.05.055 and 15.05.080.

B.  The applicant must show that the proposed development satisfies the following minimum criteria for approval by the Hearing Examiner:

1.   The proposal conforms with the Comprehensive Plan policies and the adopted Comprehensive Plan specifies that the property shall be subsequently considered through an individual reclassification application;

2.   The requested reclassification is in the public interest;

3.   The requested reclassification is not hazardous or will not have adverse impacts on adjacent properties;

4.   The requested reclassification does not pose undue burdens on public facilities; and

5.   The requested reclassification has, or will potentially have, an adequate link to a High-Capacity Transit Mode. (Ord. 00-1033 § 14; Ord. 96-1008 § 6; Ord. 92-1041 § 1)

15.22.055 Development Agreements

A.  A person or entity having ownership or control of real property within the City may file an application for a development agreement with the Department of Planning and Community Development, solely and exclusively on the current form approved by the said Department, together with the filing fee set forth in the current edition of the City’s Fee Schedule as adopted by resolution of the City Council.

B.  Terms of the proposed development agreement shall be subject to the Development Review Committee process set forth at SMC 16.05.020 and 16.05.050 and such other provisions of SMC Title 16 as may be deemed appropriate by the City.

C.  The City Manager, and such designee or designees as may be appointed for the purpose, is authorized, but not required, to negotiate acceptable terms and conditions of the proposed development agreement with due regard for the following criteria:

1.   The development agreement conforms to the existing Comprehensive Plan policies.

2.   The terms of the development agreement are generally consistent with the development regulations of the City then in effect.

3.   Appropriate project or proposal elements such as permitted uses, residential densities, and nonresidential densities and intensities or structure sizes are adequately provided, to include evidence that the site is adequate in size and shape for the proposed project or use, conforms to the general character of the neighborhood, and would be compatible with adjacent land uses.

4.   Appropriate provisions are made for the amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of State law, any reimbursement provisions, other financial contributions by the property owner, inspection fees, or dedications.

5.   Adequate mitigation measures, development conditions, and mitigation requirements under Chapter 43.21C RCW are provided.

6.   Adequate and appropriate design standards such as maximum heights, setbacks, drainage and water quality requirements, landscaping, and other development features are provided.

7.   If applicable, targets and requirements regarding affordable housing are addressed.

8.   Provisions are sufficient to assure requirements of parks and open space preservation.

9.   Interim uses and phasing of development and construction is appropriately provided. In the case of an interim use of a parcel of property, deferments or departures from development regulations may be allowed without providing a demonstrated benefit to the City; provided, that any departures or deferments to the Code requested for a final use of the property shall comply with criteria No. 11 below. The agreement shall clearly state the conditions under which the interim use shall be converted to a permanent use within a stated time period and the penalties for noncompliance if the interim use is not converted to the permanent use in the stated period of time.

10.  Where a phased development agreement is proposed, a site plan shall be provided and shall clearly show the proposed interim and final use subject to the agreement.

11.  In the case of a development agreement where the proposed use would be the final use of the property, it shall be clearly documented that any departures to the standards of the Code, requested by the applicant, are in the judgment of the City, off-set by providing a benefit to the City of equal or greater value relative to the departure requested. In no case shall a departure to the Code be granted if no benefit to the City is proposed in turn by the applicant.

12.  Conditions are set forth providing for review procedures and standards for implementing decisions.

13.  A build-out or vesting period for applicable standards is provided.

14.  Any other appropriate development requirements or procedures necessary to the specific project or proposal are adequately addressed.

15.  If appropriate, and if the applicant is to fund or provide public facilities, the development agreement shall contain appropriate provisions for reimbursement over time to the applicant.

16.  Appropriate statutory authority exists for any involuntary obligation of the applicant to fund or provide services, infrastructure, impact fees, inspection fees, dedications, or other service or financial contributions.

D.  If the City Manager deems that an acceptable development agreement has been negotiated and recommends the same for consideration, the City Council shall hold a public hearing and then may take final action, by resolution, to authorize entry into the development agreement. In addition, the Council may continue the hearing for the purpose of clarifying issues, or obtaining additional information, facts, or documentary evidence.

E.  The decision of the Council shall be final immediately upon adoption of a resolution authorizing or rejecting the development agreement.

F.  Following approval of a development agreement by the Council, and execution of the same, the development agreement shall be recorded with the King County Recorder.

G.  Because a development agreement is not necessary to any given project or use of real property under the existing comprehensive plan and development regulations in effect at the time of making application, approval of a development agreement is wholly discretionary and any action taken by the City Council is legislative only, and not quasi-judicial. (Ord. 01-1022 § 3; Ord. 99-1045 § 3)

15.22.060 Hearing Examiner Development Review Process

A.  Purpose. To establish a Hearing Examiner system under the provisions of Chapter 35A.63 RCW to hear and decide applications for amendments to land use regulations and other matters as specifically assigned by the appropriate ordinances (Ord. 90-1045, Section 1).

B.  Office Created. The office of the Hearing Examiner is hereby created to act on behalf of the City Council by considering and applying zoning and regulatory ordinances to the land as provided herein. The Hearing Examiner shall also exercise administrative powers and such other quasi-judicial powers as may be granted by ordinance and code adoption.

C.  Appointment and Terms. The Hearing Examiner shall be appointed by the City Manager, subject to confirmation by the City Council, to serve for a term of two (2) years.

D.  Removal. The Hearing Examiner may be removed from office at any time for just cause by a majority vote of the whole membership of the City Council.

E.  Qualifications. The Hearing Examiner shall be appointed solely on the basis of qualifications for the duties of the office with special reference to training, actual experience in, and knowledge of administrative or quasi-judicial hearings on zoning, subdivision and other land use regulatory enactments as may be granted by ordinance or code adoption.

F.  Examiner Pro Tem. In the event of the absence or the inability of the Hearing Examiner to act on an application, a Hearing Examiner Pro Tem may be appointed, in the manner specified in subsection (C), for such application or period of absence, and shall have all the duties and powers of the Hearing Examiner.

G.  Freedom from Improper Influence. Individual Council members, City officials or any other persons shall not interfere, or attempt to interfere, with the performance of the Hearing Examiner’s designated duties (Ord. 90-1045, Section 7).

H.  Functions Relating to Area Zoning. Prior to adopting new area zoning, the City Council may choose to have the Hearing Examiner conduct public hearings to consider individual property requests for changes to the proposed area zoning, in which case such decisions shall be considered as recommendations to the Council (Ord. 90-1045, Section 8).

I.  Decisions Appealable to the City Council. See SMC 1.20.090.

J.  Decisions of the Hearing Examiner Which are Final. See SMC 1.20.110.

K.  Hearing Procedures. The Hearing Examiner shall have the power to prescribe procedures for the conduct of the hearings subject to confirmation of the City Council; and also to issue summons and subpoenas to compel the appearance of witnesses and production of documents and materials, to order discovery, to administer oaths, and to preserve order.

L.  Public Hearings.

1.   Before rendering a decision on any application or appeal, the Hearing Examiner shall hold at least one (1) public hearing thereon. For applications subject to City Council action, the public hearing by the Hearing Examiner shall constitute a hearing by the City Council.

2.   Whenever a project requires more than one (1) permit or approval, the Hearing Examiner may order a consolidation of and conduct the required public hearings to avoid unnecessary costs or delays. Decisions of the Hearing Examiner to order and conduct consolidated hearings shall be final in all cases.

M.  Procedural Notice Requirements. Unless otherwise provided by ordinance, the City Manager, or designee, shall cause the notice of the time and place of the public hearing to be mailed to all persons of record at least fourteen (14) calendar days prior to the scheduled hearing (not including the day the notice is mailed). Additional notice shall be given as provided in the section or ordinance governing the particular type of application or appeal. Public hearings may be continued or reopened by the Hearing Examiner with written notice to all persons of record at least seven (7) calendar days prior to the rescheduled hearing. Public hearings may be continued by the Hearing Examiner without additional written notice; provided the continuance is made during open session to a specific date, time and location.

N.  Planning and Community Development Department Report. When an application or appeal has been set for public hearing, the Department of Planning and Community Development shall coordinate and assemble the reviews of other City departments and governmental agencies having an interest in the subject application or appeal, and shall prepare a report summarizing the factors involved and the Department of Planning and Community Development’s findings and recommendation or decision. At least fourteen (14) days prior to the scheduled hearing, the report, and, in the case of appeals, any written appeal arguments submitted to the City shall be filed with the Hearing Examiner and copies thereof shall be mailed to all persons of record who have not previously received said materials.

O.  General Criteria for Examiner Decisions.

1.   Each decision of the Hearing Examiner shall be in writing and shall include findings and conclusions, based on the record, to support the decision.

2.   The Hearing Examiner’s findings and conclusions shall carry out and help implement applicable state laws and regulations and the regulations, policies, objectives and goals of the Comprehensive Plan, the Zoning Code, the Subdivision Code and other official laws, policies and objectives of the City, and that the decision will not be unreasonably incompatible with, or detrimental to, affected properties and the general public.

3.   The Hearing Examiner shall accord substantial weight to the recommendation of the Department of Planning and Community Development.

P.  Additional Criteria for Pending Area Zoning Recommendations. When the Hearing Examiner considers individual property owner requests for pending area zoning, he/she shall prepare a report which contains additional findings based on the applicable proposed Comprehensive Plan causing the pending area zoning.

Q.  Additional Criteria for Subdivision Decisions. When the Hearing Examiner issues a decision regarding an application for a subdivision of property and there are conflicts between adopted plans, portions of plans, or zoning, the following criteria shall apply:

1.   In case of conflict in use and density designations between adopted Comprehensive Plans, the most current adopted plan shall govern.

2.   In case of conflict in use and density designations between adopted Comprehensive Plans and present zoning, the zoning shall govern.

R.  Examiner Actions. Within ten (10) working days of the conclusion of a hearing or rehearing, the Hearing Examiner shall render a written recommendation or decision and shall transmit a copy thereof to all persons of record.

1.   The Examiner’s decision may be to grant or deny the application or appeal, or the Hearing Examiner may grant the application or appeal with such conditions, modifications and restrictions as he/she finds necessary to make the application or appeal compatible with the environment, and carry out applicable state laws and regulations, and the regulations, policies, objectives and goals of the Comprehensive Plan, the Zoning Code, the Subdivision Code and other ordinances, policies and objectives of the City.

2.   The conditions, modifications and restrictions that the Hearing Examiner may impose include additional setbacks, screening in the form of landscaping or fencing, covenants, easements and dedications of additional road rights-of-way. Performance bonds or equivalent measures may be required to insure compliance with the conditions, modifications and restrictions of this code. (Ord. 96-1008 §§ 9, 10; Ord. 95-1012 § 1; Ord. 92-1041 § 1)

15.22.065 Appeal Process

A.  Appeal to the Hearing Examiner – Notice and Content. All notice of appeal regarding any decision being appealed to the Hearing Examiner shall be filed with the City Clerk within ten (10) calendar days from the date of the issuance of such decision together with a filing fee in the amount specified in the City’s schedule of fees or in such other amount as may be specified by resolution of the City Council. All notices of appeal shall state with specificity the decision being appealed and the reasons why the appealed decision should be reversed or modified.

B.  Appeal to City Council – Notice. Decisions by the Hearing Examiner on cases subject to City Council action may be appealed to the City Council by an aggrieved party by filing a notice of appeal with the City Clerk within fourteen (14) calendar days of the date the Hearing Examiner’s written decision is mailed, together with a filing fee in the amount specified in the City’s schedule of fees or in such other amount as may be specified by resolution of the City Council. If no appeal is filed within fourteen (14) calendar days, the Hearing Examiner’s decision shall be considered as final and conclusive.

C.  Appeal to City Council – Content. If a notice of appeal has been filed, the appellant shall file written arguments within twenty-one (21) calendar days of the date the Hearing Examiner’s written decision is mailed, together with a filing fee in the amount specified in the City’s schedule of fees or in such other amount as may be specified by resolution of the City Council. If no appeal is filed within fourteen (14) calendar days, the Hearing Examiner’s decision shall be considered as final and conclusive.

D.  Appeal to City Council – Consideration. Consideration by the City Council of the appeal shall be based upon the record of the Hearing Examiner’s public hearing and upon written appeal statements based upon the record; provided the City Council may allow parties a period of time for oral argument based on the record. The Hearing Examiner may conduct a conference with all parties to the appeal for the purpose of clarifying or attempting to resolve certain issues on appeal; provided such conference shall be informal and shall not be part of the public record.

      If, after consideration of the record, written appeal statements and any oral argument, City Council may:

1.   Affirm the decision of the Hearing Examiner;

2.   Determine that an error in fact or procedure may exist or additional information or clarification is desired. The City Council shall then remand the matter back to the Hearing Examiner; or

3.   Determine that the recommendation of the Hearing Examiner is based on an error in judgement or conclusion. The City Council may then modify or reverse the decision of the Hearing Examiner with appropriate findings of fact, conclusions of laws and decision.

E.  Appeal to City Council – City Council Action. The City Council shall take final action by ordinance or resolution on a Hearing Examiner’s recommendation on area zoning or on any appeal of a Hearing Examiner’s decision, and when so doing, the City Council shall make and enter findings of fact and conclusions from the record which support its action. Said findings and conclusions shall set forth and demonstrate the manner in which the action is consistent with, carries out, and helps implement objectives and goals of the Comprehensive Plan, the Zoning Code, the Subdivision Code and other official laws, policies and objectives of the City. The City Council may adopt as its own all or portions of the Hearing Examiner’s findings and conclusions.

F.  Reconsideration of Final Action. The City Council may reconsider any action after it has become final if:

1.   The action was based in whole or in part on erroneous facts or information;

2.   The action, when taken, failed to comply with existing laws or regulations applicable thereto; or

3.   An error or procedure occurred which prevented consideration of the interests of persons directly affected by the action.

G.  Review of Final Decisions.

1.   Decisions of the City Council shall be final and conclusive unless within twenty (20) calendar days, or within thirty (30) calendar days for decisions approving or denying plats, from the date of the City Council action an aggrieved person applies for a writ of certiorari from the Superior Court in and for the County of King, State of Washington, for the purpose of review of the action taken; provided, no development or related action may occur during said twenty (20) days, or thirty (30) days for plat approvals, appeal period.

2.   Decisions of the Hearing Examiner in cases identified in SMC 15.22.060(J) shall be final and conclusive, unless, within thirty (30) days from the effective date of the action, the original applicant or an adverse party makes application to the Superior Court in and for the County of King, State of Washington, for a writ of certiorari, a writ of prohibition, or a writ of mandamus.

3.   Notwithstanding the foregoing provisions of this section, final decisions of the City Council relating to matters governed by the State Shorelines Management Act shall be appealed to the State Shorelines Hearing Board as specified in the said Act. (Ord. 00-1036 § 6; Ord. 92-1041 § 1)

15.22.070 Severability

The standards, criteria and process of this chapter shall be fully governed by the adopted ordinances that provide the authority to the Hearing Examiner. Any conflict of provisions shall require the stricter provision prevailing. The applicable ordinances are Nos. 90-1045 and 90-1051 and any subsequent amendments. (Ord. 92-1041 § 1)