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Article VII. Appeals
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Depending on the type of permit, an appeal may be to the hearing examiner (“administrative appeal”) or to court (“judicial appeal”). If an administrative appeal is provided, it must be used before going to court. Generally, any administrative appeals must be filed with the city within fourteen days of the notice of decision, and any judicial appeals must be filed with the superior court within twenty-one days.

A. Scope of Project Review and Appeals. As required by RCW 36.70B.030, except for issues of code interpretation, neither the city nor any reviewing body shall reexamine alternatives to or hear appeals on the following items:

1. Type of land use permitted at the site, including uses that may be allowed under certain circumstances, such as planned unit development and conditional and special uses, if the criteria for their approval have been satisfied;

2. Density of residential development in urban growth area; and

3. Availability and adequacy of public facilities identified in the comprehensive plan, if the plan or development regulations provide for funding of these facilities as required by Chapter 36.70A RCW.

B. Time Limit for Appeal Decisions. Land use permit decisions and SEPA determinations, including the adequacy of a final EIS, shall be appealable as provided for in this section. For purposes of this section, a final decision means the decision issued after any reconsideration or remand if applicable. The time period for hearing and deciding an administrative appeal to the city shall not exceed ninety days. However, the parties to an appeal may agree to extend this time period. This appeal period is not included in the time limit for issuing a permit (Section 15.01.080).

C. SEPA Appeals. The city establishes the following administrative appeal procedures under the SEPA ordinance (Chapter 19.43), RCW 43.21C.075 and WAC 197-11-680. For purposes of this subsection, “EIS” means a final environmental impact statement, final supplemental environmental impact statement, or a notice of adoption or addendum to a final EIS/SEIS that is prepared and used by the city for making a decision on the proposal. Except as specified in this chapter, SEPA appeals on land use permit decisions and any other city proposals shall be filed and heard at the same time as appeals on the applicable land use permit or city proposal.

1. Procedural and Substantive Compliance. For purposes of utilizing SEPA to assist in governmental planning and decisionmaking, the city recognizes a right of appeal by any aggrieved person on whether governmental action is in compliance with the substantive and procedural provisions of SEPA, including a threshold determination (DNS, MDNS or DS), adequacy of an EIS, and of a decision document issued by the responsible official or city which conditions or denies a project on the basis of SEPA substantive authority. Any SEPA appeal shall meet the requirements of SEPA (see RCW 43.21C.075), the SEPA ordinance (Chapter 19.43), and this title, as further specified in this section.

2. Review Process V—Judicial Appeal Only, Except for Determination of Significance. No SEPA administrative appeal to the city is provided for Review Process V other than for an appeal of a determination of significance to the hearing examiner. The hearing examiner’s open record appeal hearing shall occur prior to any permit hearing by a body designated under Review Process V to make a recommendation or decision on the project. Any further SEPA appeal shall not occur prior to a permit decision under Review Process V. Any appeals of Review Process V decisions shall be to Snohomish County superior court under Chapter 36.70C RCW (the Land Use Petition Act or LUPA).

3. Review Process I, II, and III—Administrative and Judicial Appeal. SEPA administrative appeals are provided for Review Process I, II, and III. All SEPA administrative appeals shall be to the hearing examiner and are subject to the consolidated appeals provisions of this title. Any appeal of the hearing examiner’s decision shall be to Snohomish County superior court under Chapter 36.70C RCW. This means:

a. For Review Process I and II permits, one open record appeal hearing is allowed on the appeal of a SEPA threshold determination and permit together. If the hearing examiner requires an EIS, one subsequent open record appeal is allowed on the adequacy of the EIS and permit together.

b. For Review Process III permits, the hearing examiner must hear the SEPA administrative appeal for a Review Process III permit at the same open public hearing where the hearing examiner makes a recommendation or decision on the permit. If the hearing examiner requires an EIS or supplemental EIS, the hearing examiner must hear any appeal of the EIS at the open public hearing on the permit (which will generally be continued pending the preparation of the required environmental document).

c. For Review Process I, II, and III, an appeal of a SEPA determination of significance shall be heard by the hearing examiner in its own separate open record appeal hearing, prior to the further processing of the land use permit application or issuance of a decision.

4. Appeals on Other City Proposals. This subsection applies to appeals of SEPA procedural determinations on project or nonproject proposals by the city that are not city legislative actions. If a SEPA threshold determination or EIS on a city proposal is issued prior to an application for a land use permit (or if no land use permit is required for the proposal), the city shall allow an administrative appeal to the hearing examiner in the public notice of the SEPA determination. The hearing examiner shall hear only the SEPA procedural appeal and shall not have jurisdiction over review of the city proposal unless otherwise provided by city ordinance. There shall be no further appeal of the hearing examiner’s appeal decision until after the city makes a final decision on the proposal.

5. Appeals To and From the Hearing Examiner. The hearing examiner shall provide for the preparation of a record for use in any subsequent appeal proceedings. Any further appeal of the hearing examiner’s decision on a SEPA administrative appeal on a Review Process I, II, and III permit shall be to Snohomish County superior court under Chapter 36.70C RCW together with the appeal of the permit (unless state law provides for a different appeal process, such as to the Shoreline Hearings Board).

6. Deference to Responsible Official. The procedural determinations made by the city’s responsible official shall be entitled to substantial weight.

D. Permit Appeals.

1. Review Process I, Minor Administrative Decisions. Appeals of Review Process I decisions shall be heard by the hearing examiner in the manner provided for in Review Process II appeals. Appeals of minor administrative decisions shall be to the hearing examiner and filed within fourteen days of issuance of the decision; provided, however, that appeals of shoreline permit decisions shall be filed within twenty-one days of the decision.

2. Review Process II, Administrative Decisions. Appeals of administrative decisions, including decisions for SEPA threshold determinations, shall be heard by the hearing examiner. The hearing examiner’s decision on the appeal shall be final. Appeals of hearing examiner’s decision shall be to Snohomish County superior court in accordance with Chapter 36.70C RCW and filed within twenty-one days of issuance of the decision. Exception: no city administrative appeal is provided for limited utility extensions or construction of a bulkhead or other measures to protect a single-family residence and its appurtenant structures from shoreline erosion, as defined in RCW 90.58.140(11)(b); any appeal shall be directly to the shoreline hearings board.

3. Review Process IIIA, Hearing Examiner Decisions. The decision of the hearing examiner on Review Process IIIA applications, including SEPA determinations, shall be final. Appeals of the hearing examiner’s decisions shall be to Snohomish County superior court in accordance with Chapter 36.70C RCW and filed within twenty-one days of issuance of the decision; provided, however, that appeals of the hearing examiner’s decision on shoreline substantial development permits or revisions shall be to the Shorelines Hearings Board as set forth in RCW 90.58.180 and Chapter 461-08 WAC, the rules of practice and procedure of the Shorelines Hearings Board.

a. Appeals of revisions to shoreline permits not requiring a conditional use permit or variance shall be in accordance with RCW 90.58.180 and shall be filed within twenty-one days from the date of receipt of the city’s action by the Department of Ecology. The party seeking review shall have the burden of proving the revision granted was not within the scope and intent of the original permit.

b. Appeals of revisions to shoreline permits requiring a conditional use permit or variance shall be in accordance with RCW 90.48.180 and shall be filed within twenty-one days from the date of receipt of the city’s action by the Department of Ecology. The party seeking review shall have the burden of proving the revision granted was not within the scope and intent of the original permit.

4. Review Process IIIB, Hearing Examiner Recommendation to Council.

a. There is no appeal of the hearing examiner’s recommendation. The decision of the city council constitutes the final action of the city and is appealable to Snohomish County superior court in accordance with Chapter 36.70C RCW and shall be filed within twenty-one calendar days of issuance of the decision.

b. If a SEPA procedural determination is appealed for a proposal subject to Review Process IIIB, the appeal shall be heard with the hearing examiner’s open public hearing on the permit. The decision of the hearing examiner shall be final and shall be stated in the hearing examiner’s recommendation to the city council on the Review Process III permit. Any further SEPA appeal shall be to Snohomish County superior court under Chapter 36.70C RCW together with the city council decision on the permit.

c. Nothing in this subsection limits the authority of the city council to condition or deny a proposed project under Review Process IIIB under applicable city standards and ordinances.

5. Review Process V, Planning Commission/City Council Quasi-Judicial Decisions. The decision of the planning commission constitutes a recommendation to the city council. The decision of the city council constitutes the final action of the city and is appealable to Snohomish County superior court in accordance with Chapter 36.70C RCW and shall be filed within twenty-one days of issuance of the decision. (Ord. 3774-20 § 3 (Exh. 2), 2020.)