18.04.230 Appeals | Gig Harbor Municipal Code

18.04.230 Appeals.

The city establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-110-680:

1. Only the following decisions may be administratively appealed under this chapter:

a. Final threshold determination;

b. Mitigation or failure to mitigate in the SEPA decision;

c. Final EIS; and

d. Project denials.

2. If the city does not provide for a hearing or appeal on the underlying action/permit, then the SEPA administrative appeal on the decisions listed in subsection (A)(1) of this section shall be the only hearing and appeal allowed on the underlying action/permit.

1. In the notice of decision issued by the city pursuant to GHMC 19.02.007 and for every decision for which an appeal is available in this section, the SEPA responsible official shall give official notice of the date and place for commencing an appeal. The notice shall include:

a. Notice that the SEPA issues must be appealed within the time limit set by statute or ordinance for appealing the underlying governmental action;

b. The time limit for commencing the appeal of the underlying governmental action and SEPA issues, and the statute or ordinance establishing the time limit;

c. Where the appeal may be filed.

2. Written notice shall be provided to the applicant, all parties to any administrative appeal and all persons who have requested notice of decisions concerning the project. Such notice may be appended to the permit, the decision documents, the SEPA compliance documents or may be printed separately.

C. Timing of Appeal. The appeal shall take place prior to the city’s final decision on a proposed action. However, the SEPA appeal hearing may be consolidated with any other hearing on the underlying permit or action.

D. Number of Appeals. Only one administrative appeal to the city is allowed of the decisions listed in GHMC 18.04.170(A).

E. Consolidated Appeals. If the underlying action/permit requires a hearing, any SEPA appeal shall be consolidated with the hearing or appeal of the underlying action/permit into one simultaneous hearing, with the exception of the following:

1. An appeal of a determination of significance (DS);

2. An appeal of a procedural determination made by the city when the city is a project proponent, or is funding a project, and chooses to conduct its review under SEPA, including any appeals of its procedural determinations, prior to submitting an application for a project permit. Subsequent appeals of substantive determinations by an agency with jurisdiction over the proposed project shall be allowed under the SEPA appeal procedures of the agency with jurisdiction;

3. An appeal of a procedural determination made by the city on a nonproject action.

1. SEPA Decision Issues at the Same Time as Underlying Action. An appeal of a SEPA decision that issued at the same time as the decision on a project action shall be filed within 14 days after issuance of a notice of decision under GHMC 19.02.007 (or RCW 36.70B.130).

2. SEPA Decision Allows Public Comment. For a DNS or MDNS for which public comment is required (under this chapter), the appeal period shall be extended for an additional seven days.

3. SEPA Threshold Decision Issues Prior to Decision on Underlying Action. An appeal of a threshold decision issued prior to a decision on a project action shall be filed within 14 days after notice that the decision has been made and is appealable.

G. Consideration of SEPA Responsible Official’s Decision. Procedural determinations made by the SEPA responsible official shall be entitled to substantial weight by the hearing examiner in an appeal.

H. Administrative Record. An administrative record of the appeal must be provided, and the record shall consist of the following:

1. Findings and conclusions;

2. Testimony under oath; and

3. A taped or written transcript. (The city may require that the appellant provide an electronic transcript.)

I. Exhaustion of Administrative Remedies. The city’s administrative appeal procedure must be used before anyone may initiate judicial review of any SEPA issue for which the city allows an appeal in this section.

J. Content of Appeal. Every appeal must be in writing, and must include the following:

1. The applicable appeal fee, as established by resolution of the city council;

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

3. A statement describing the appellant’s standing, or why the appellant believes that he or she is aggrieved by the decision appealed from;

4. Identification of the application and decision which is the subject of the appeal;

5. 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;

6. The specific relief sought;

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

K. Timeliness of Appeals. On receipt of a written notice of appeal, the SEPA responsible official shall forward the appeal to the hearing examiner, who shall determine whether the appeal is timely prior to the scheduling of any appeal hearing or consolidated open record hearing on an underlying project permit. A written decision will issue if the appeal is untimely and the appeal will not proceed.

1. Jurisdiction. The hearing examiner shall hear all administrative appeals of appealable decisions.

2. Hearing. The hearing examiner shall hold an open record public hearing on the appeal, as provided in Chapter 19.06 GHMC.

3. Date for Issuance of Decision. The hearing examiner shall issue a decision on the appeal within the time period set forth in GHMC 19.05.008, unless a longer period is agreed to in writing by the applicant and hearing examiner.

4. Appeals of Hearing Examiner’s Decision. The hearing examiner’s decision on the timeliness of an appeal within his/her jurisdiction and any other appeals allowed under this subsection within his/her jurisdiction shall be the final decision of the city. The hearing examiner’s decision shall state that any appeal of the final decision shall be filed in Pierce County superior court (pursuant to Chapter 36.70C RCW), Growth Management Hearings Board, or the shorelines hearings board, as applicable.

5. Notice of Appeal. Notice of the appeal hearing shall be mailed to the appellant at least 10 days prior to the hearing. For SEPA project actions associated with a Type III project permit, a notice of a potential appeal hearing may be consolidated with the notice of public hearing required by GHMC 19.03.003. For SEPA nonproject actions, notice of the appeal hearing shall be published in the city’s official newspaper at least 10 days prior to the hearing.

1. When SEPA applies to a decision, any judicial appeal of that decision potentially involves both those issues pertaining to SEPA and those which do not. This section and RCW 43.21C.075 establish the time limits for raising SEPA issues, but existing statutes of limitation control the appeal of non-SEPA issues.

2. Appeals of the city’s final decision shall be filed in superior court, but appellants must follow RCW 43.21C.075(6)(c), which provides that “judicial review under chapter 43.21C RCW shall without exception be of the governmental action together with its accompanying environmental determinations,” which contemplates a single lawsuit. (Ord. 1245 § 30, 2012; Ord. 1197 § 83, 2010; Ord. 1042 § 2, 2006).