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008-16 - Ordinance - Repealing Ordinance 014-15 Relating to Land Use and ZoningORDINANCE NO.008-16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, RELATING TO LAND USE AND ZONING; ESTABLISHING UPDATED INTERIM REGULATIONS ON PROCESSING PROJECT PERMIT APPLICATIONS; REPEALING ORDINANCE NO. 014-15; REPEALING CHAPTERS 16.06 AND 16.07 OF THE PORT ORCHARD MUNICIPAL CODE; ESTABLISHING A WORK PLAN; ESTABLISHING THE DATE OF A PUBLIC HEARING; SETTING TWELVE MONTHS AS THE EFFECTIVE PERIOD; DECLARING AN EMERGENCY OFR IMMEDIATE EFFECT; AND PROVIDING FOR SEVERABILITY AND CORRECTIONS. WHEREAS, City staff previously noted the need to update the City's permit processing procedures, previously codified under Chapters 16.06 and 16.07 of the Port Orchard Municipal Code (POMQ and WHEREAS, on September 8, 2015, the Port Orchard City Council (the "City Council") passed interim Ordinance No. 014-15, which repealed Chapters 16.06 and 16.07 of the POMC and established interim permit processing procedures under a newly created Title 23 of the POMC, for a period of six months; and WHEREAS, City staff requires additional time to allow for the public, the City's Planning Commission, and the City Council to review and comment on draft permanent regulations for the City's permit processing procedures and to adopt permanent regulations for the same; and WHEREAS, in administering the interim permit processing regulations over the past six months, City staff has identified necessary amendments to the interim regulations to help clarify and assist City staff in interpreting and administering said interim regulations; and WHEREAS, RCW 36.70A.390 provides that the City Council may adopt interim official controls and ordinances for a period of up to twelve (12) months provided that a public hearing is held within at least sixty (60) days of its adoption and that a work plan is established for the adoption of permanent regulations; and WHEREAS, the .City Council desires to repeal Ordinance No. 014-15 and to pass this interim ordinance to adopt the updated interim permit processing regulations, to be codified under the newly created Title 23 of the POMC, and to be in effect for up to twelve (12) months while the public process is followed for the adoption of permanent regulations; now therefore THE CITY COUNCIL OF THE CITY OF PORT ORCAHRD, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Ordinance No. 008-16 Page 2 of 37 Section 1. Findings. The City Council hereby adopts the above recitals as findings in support of this ordinance. The City Council further enters the following findings: A. The interim POMC regulations set forth herein are in the best interest of City of Port Orchard residents. B. The interim official control regulations set forth herein satisfy all relevant criteria for approval and adoption, including RCW 35A.63.220 and RCW 36.70A.390. The City Council reserves the right to amend these findings upon holding a public hearing pursuant to Section 9 herein. Section 2. Ordinance No. 014-15 Repealed. Ordinance No. 014-15 is hereby repealed in its entirety. Section 3. POMC Chapter 16.06 Repealed. Chapter 16.06 of the Port Orchard Municipal Code is hereby repealed. Section 4. POMC Chapter 16.07 Repealed. Chapter 16.07 of the Port Orchard Municipal Code is hereby repealed. Section 5. References Elsewhere in POMC to Chapter 16.06 and 16.07. If any other section of the Port Orchard Municipal Code refers to Chapter 16.06 or 16.07, or any subsection thereof, as repealed herein, those references shall be changed to "Title 23 POMC". Section 6. New Interim Title 23 POMC Adopted. The updated interim permit processing regulations, to be codified under POMC Title 23—Permit Processing, attached as Exhibit 1 hereto and incorporated fully herein by this reference, are hereby adopted in entirety. Section 7. Effect of Interim Official Control. This interim official control will allow the City, during the next year, to accept project permit applications and to process them under the interim regulations adopted under this ordinance. Those applications conforming to the interim regulations in this ordinance may be approved and those that are not consistent with the interim regulations in this ordinance may be denied. Section 8. Conflicts. Where provisions of other chapters of the POMC conflict with this interim ordinance, this interim ordinance shall prevail. Section 9. Public Hearing on Interim Official Controls. Pursuant to RCW 36.70A.390, the City Council shall hold a public hearing on this interim official control ordinance within sixty (60) days of its passage. Following the public hearing, the City Council may amend the findings of fact included in Section 1 herein on the subject of this interim official control ordinance and either justify its continued imposition or repeal this ordinance. Ordinance No. 008-16 Page 3 of 37 Section 10. Work Plan. City staff is hereby directed to implement the following work plan during the interim official control period. City staff shall hold a public hearing(s) on the draft permanent regulations for permit processing to obtain public input on such regulations, allow the Planning Commission to make recommendations to the City Council, and for the City Council to review the draft ordinance and, if desired, to adopt new permanent regulations on project permit processing procedures. Section 11. Declaration of Emergency. The City Council hereby declares that an emergency exists necessitating that this interim official control take effect immediately upon passage by a majority vote plus one of the whole membership of the City Council, and that the same is not subject to referendum. If this interim official control ordinance is not adopted immediately, the City staff will be required to process project permit applications under Ordinance No. 014-15, and, after the termination of said ordinance, Chapters 16.06 and 16.07 of the POMC until the ordinary effective date of this ordinance, which would cause undue confusion for the public and City staff. Section 12. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid by a court, board, or tribunal of competent jurisdiction, for any reason, or should any portion of this ordinance be pre-empted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Section 13. Corrections. Upon the approval of the City Attorney, the City Clerk is authorized to make any necessary corrections to this ordinance including, but not limited to, the correction of scrivener's/clerical errors, references, ordinance numbering, section/subsection numbers, and any reference thereto. Section 14. Effective Date; Sunset; Publication. This ordinance shall take effect and be in full force immediately upon its passage, having received the vote of a majority plus one of the entire council. So long as the City holds a public hearing and adopts final findings and conclusions in support of this interim ordinance, this interim ordinance shall remain effective for a period of twelve (12) months unless terminated earlier by the City Council; PROVIDED, that the City Council may, in its sole discretion, renew this interim ordinance for one or more additional six month periods in accordance with state law. An approved summary of this ordinance consisting of the title shall be published in the official newspaper of the City. Ordinance No. 008-16 Page 4 of 37 PASSED BY THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, at a regular meeting thereof this 23rd day of February, 2016, and SIGNED by the Mayor and attested by the Clerk in authentication of such passage this 23'd day of February, 2016. Robert P taansuu, Mayor ATTE5T: Brandy Rinearson, CIVIC, City Clerk SPO BORED BY: lam Bek Ashby, Councilmember APPROVED AS TO FORM ONLY: I�r - '-Sha on Cates, City Attorney PUBLISHED: March 4, 2016 EFFECTIVE DATE: February 23, 2016 INTERIM — Adopted February 23, 2016 TITLE 23 Permit Processing 23.10 Types of Review Procedures 23.20 Project Permit Applications 23.30 Public Notice 23.40 Application Review Procedures 23.50 Conduct of the Public Hearing 23.60 Open and Closed Record Appeals Chapter 23.10 Types of Review Procedures Sections: 23.10.010 Purpose. 23.10.020 Definitions. 23.10.030 Project Permit Processing and Exemptions. 23.10.040 Consolidated Permit Processing. 23.10.050 Determination of Proper Procedure. 23.10.060 Table of Permits and Procedures. 23.10.010 Purpose. This Title addresses the review of three different types of procedures, legislative, administrative and quasi-judicial (or a combination of administrative and quasi- judicial — see definitions in Section 23.10.020 below). The purpose of this Title is to: A. Legislative. Establish standard procedures to provide notice to the public of the city's efforts in drafting legislation, i.e. ordinances for comprehensive planning and development regulations, to involve the public and property owners in these efforts, and for the adoption of such comprehensive plans and development regulations. B. Administrative and/or Quasi -Judicial. Establish standard procedures for the review of administrative and quasi-judicial applications, to allow participation in the process by the applicant and the public, to ensure the issuance of a timely decision on such applications, and to provide an administrative appeal process for such decisions. Page 2 of 33 23.10.020 Definitions. A. Procedures. There are four types of permit/approval procedures: Administrative, Combination (a combination of Administrative and Quasi -Judicial), Quasi -Judicial and Legislative. 1. Administrative. Administrative decisions are made without public notice and without a public hearing. This type of procedure is used when there are clear and objective approval criteria, and where the application of City standards and criteria requires little to no use of discretion. In limited circumstances, a public meeting may be required. 2. Combination (Administrative with Quasi -Judicial). Combination decisions are those decisions that involve the administrative process for the permit decision, and require the exercise of discretion by the decision -makers in an appeal (if any). In the administrative portion of a Combination decision, there is notice to the public but no public hearing (the administrative process), although there is notice to the public and an open record public hearing (the quasi-judicial process) in the appeal (if any). 3. Quasi -Judicial. Quasi -Judicial decisions require the use of substantial discretion and may involve applications of broad public interest. Quasi -Judicial decisions are made with notice to the public and an open record public hearing, with an opportunity for an appeal in a closed record hearing. 4. Legislative. Legislative applications/approvals involve the creation, revision, or large-scale implementation of public policy (e.g., adoption of land use regulations, zone changes, and comprehensive plan amendments that apply to entire zoning districts, not just one parcel of property). Legislative matters are considered with notice to the public in one or more public hearing(s), initially by the Planning Commission, and with final decisions made by the City Council. B. General. 1. "Director" means the City Director of Community Development. 2. "Closed record appeal" means an administrative appeal on the record to a decision maker(s), following an open record hearing on a project permit application when the appeal is on the record with no or limited new evidence or information allowed to be submitted and only appeal argument allowed. 3. "Open record hearing," means a hearing, conducted by a single hearing body or officer authorized by the City to conduct such hearings, that creates the City's record through testimony and submission of evidence and information, under procedures prescribed by the City. An open record hearing may be held prior to the City's decision on a project permit, to be known as an "open record pre -decision hearing." An open Page 3 of 33 record hearing may be held on an appeal, to be known as an "open record hearing," if no open record pre -decision hearing has been held on the project permit. 4. "Project permit" or "project permit application" means any land use or environmental permit or license required from the City for a project action, including but not limited to building permits, subdivisions, binding site plans, planned unit developments, conditional uses, variances, shoreline substantial development permits, shoreline conditional use permits, shoreline variances, site plan review, permits or approvals required by critical area ordinances (such as variances or reasonable use exemptions), site -specific rezones authorized by a comprehensive plan or subarea plan, but excluding the adoption or amendment of a comprehensive plan, subarea plan, or development regulations except as otherwise specifically included in this subsection. 5. "Public meeting" means an informal meeting, hearing, workshop or other public gathering of people to obtain comments from the public or other agencies on a proposed project permit prior to the local government's decision. A public meeting may include, but is not limited to, a design review or architectural control board meeting, or scoping meeting on a draft environmental impact statement. A public meeting does not include an open record hearing. The proceedings at a public meeting may be recorded and a report or recommendation may be included in the local government's project permit application file. 23.10.030 Project Permit Processing and Exemptions. A. Certain types of permit applications subject to Administrative, Combination and Quasi - Judicial Processing must be processed by the City according to a procedure established by state law, called "project permit processing." The permit applications subject to project permit processing are specifically defined in RCW 36.7013.020 and are identified in the chapter of this code relating to each individual application (i.e., conditional use permit, short plat, etc.). Legislative actions are completely exempt from project permit processing. B. Other permit applications/approvals may be required to follow some procedures associated with project permit processing, but not all. These include the following: 1. Street use permits, street vacations, or any other approvals relating to the use of public areas or facilities, landmark designations, are exempt from the following procedures: a. Determination of completeness (23.20.040); b. Notice of application (23.30.010); C. Consolidated project permit review (23.10.040); d. Except for the appeal of a DS, no more than one consolidated open record hearing and one closed record appeal; e. Issuance of a Notice of decision and issuance of Notice of Decision within an established time period (23.50.100 (E)); and Page 4 of 33 f. Completion of review and all appeals within an established time period (23.50.100). 2. Permits categorically exempt from SEPA (such as building permits for minor construction), or if environmental review has been completed in conjunction with other project permits, including but not limited to: Building permits, grading permits, boundary line adjustments, concurrency determinations, and impact fee decisions, are not subject to the procedures set forth in Section 23.10.030 (13)(1)(a) through (f). 23.10.040. Consolidated Permit Processing. A. Administrative and Quasi -Judicial project permit applications may be processed in a consolidated manner which provides for the integrated review and decision on two or more project permit applications relating to a proposed project action. If the applicant elects the consolidated permit review process, the determination of completeness, notice of application, and notice of final decision must include all project permits being reviewed through the consolidated review process. The applicant must request consolidation processing of his/her project permit applications at the time of application submittal. B. The City shall make the determination whether the applicant's project permit applications are subject to consolidation under Section 23.10.050. Administrative project permit applications cannot be consolidated for processing with legislative applications/actions. Quasi-judicial project permit applications cannot be consolidated for processing with legislative applications/actions. See, Section 23.10.050(A)(3) below. 23.10.050 Determination of Proper Processing Procedure. A. This Title establishes the correct procedure for processing a project permit application. The following general rules shall apply in situations involving project permit applications that are not specifically identified herein. The determination of the proper procedure for processing applications is an Administrative decision made by the Director that shall be consolidated with the underlying project permit application. 1. Concurrent processing of one or more Administrative application(s) and one or more Quasi -Judicial application(s) for the same project. Applicants may request that Administrative applications be consolidated for processing with Quasi -Judicial applications at the time the applicant submits a complete application. If the decision maker for each application is different, the highest decision maker shall make the decision on all applications. The City Council is the highest decision maker, below the Council are the Hearing Examiner, Planning Commission or Design Review Board and then the Director. 2. Concurrent processing of Administrative or Quasi -Judicial applications where approval of one application is contingent on the other. If an applicant requests that an Administrative or Quasi-judicial application be consolidated for processing with another Quasi-judicial application, but approval of one is contingent upon the other, the City may Page 5 of 33 still consolidate both for processing. The application that must be approved in order for the other application to be approved, will be addressed first during the open record hearing, and if denied, then both applications will be denied. 3. Concurrent processing of Administrative or Quasi -Judicial applications with Legislative approvals or actions. See, Section 23.10.040 (B). Legislative applications/actions (such as comprehensive plan amendments) cannot be consolidated or concurrently processed with any Quasi -Judicial or Administrative application(s) for processing. The most frequently encountered situation is an applicant's request that the City concurrently process a site -specific rezone (a Quasi -Judicial application) together with a comprehensive plan amendment (a Legislative approval). The City cannot concurrently process the site -specific rezone with the comprehensive plan amendment if the site -specific rezone implements the comprehensive plan amendment. 23.10.060 Table of Permits and Procedures. Procedure for Project Permit Applications Quasi- Public Administrative Combination Judicial Meeting Legislative Recommendation N/A N/A N/A N/A Planning Made By: Commission** Final Decision Director Director Hearing City Council City Council Made By: Examiner Notice of Application: No**** Yes Yes Yes*** No Only if Yes, before Open record public appealed, Yes, before Planning hearing or open open record hearing Commission record appeal of a No hearing examiner to No which makes final decision: before render final recommendation hearing decision to City Council examiner No, only if Closed record site -specific No Appeal, Yes, or Council appeal/final No No rezone Council could hold its decision appealed, makes final own hearing then before decision Council Judicial Appeal Yes* Yes* Yes* Yes Yes * Shoreline appeals go to Shoreline Hearings Board; ** A recommendation, as used here, does not include a staff report unless otherwise specified in this code. *** Notice of Application to applicant. ****Unless otherwise specified in the code. Page 6 of 33 Decisions Administrative Combination Quasi -Judicial Legislative Boundary Line X Adjustment Short Subdivisions X Large Lot X Subdivisions Preliminary X Subdivision Plats Final Plats X* Final Binding Site X Plans Short Plat Vacations X and Alterations Plat Vacations and X Alterations Binding Site Plan Vacations and X Alterations Preliminary Binding X Site Plan Conditional Use X Permits Administrative Conditional Use X Permit Quasi -Judicial Zoning Map X Amendment Variances X Administrative X Variances Administrative X Interpretation NonConforming Determination X Permit Planned Residential X Development Sign Permits X Page 7 of 33 Building Permit X Comprehensive X Plan Amendment Development Regulation X Amendment Annexations X Area Wide Rezone X Shoreline X Exemption Shoreline Substantial X Development Permit Administrative Shoreline X Substantial Development Permit Shoreline Variance X Shoreline Conditional Use X Permit Critical Areas Code X Variance Critical Areas Code Resonable Use X Exemption Stormwater Management Permit X Stormwater Management Permit for Grading X *The final decision on a final plat is made by the City Council during a regular meeting without a public hearing. RCW 58.17.170. The procedure is not totally administrative, but it does not fit on the other categories. Chapter 23.20 Project Permit Applications. Sections: 23.20.010 Pre -application Conference. 23.20.020 Permit Application Forms. 23.20.030 Acceptance of Application at Counter. 23.20.040 Completeness of Application. Page 8 of 33 23.20.050 Deadline for Submission of Materials Prior to Decision/Hearing. 23.20.060 Revisions of Application During Review Period. 23.20.070 Expiration of Complete Applications. 23.20.010 Pre -application Conference. A. Purpose. The purpose of the pre -application conference is to: 1. Assist applicants to prepare a code -compliant project permit application; 2. Eliminate the City's need to request additional information that causes resubmittals, resubmittal fees, and further City review, and that extends project approval dates; and 3. Reduce time frames for approval of project permit applications by expediting issue resolution through one-on-one collaboration between applicants and City staff. B. Optional or Mandatory. Applicants may be required to attend a pre -application conference, depending on the type of permit. An application may be submitted to the City at any time (unless the City has adopted a moratorium on the acceptance of such permit applications), even if a pre -application conference is mandatory. Applicants may also request an optional pre - application conference. C. Information provided by Applicant. Whether the pre -application conference is mandatory or requested by the applicant, the following information shall be provided to the City by the applicant at least ten (10) working days prior to the date of the pre -application conference: 1. Identification of the subject property; 2. Description of the type of planned development, including proposed uses, estimated density; 3. Identification of any requests for deviation from code requirements; D. Information provided by Director. If the pre -application conference is requested by the applicant, the Director shall use his/her best effort to provide the following to the applicant at least five (5) working days prior to the date of the pre -application conference: 1. A citation to the comprehensive plan policies and map designations applicable to the proposal (as described in the materials provided by the applicant); 2. A citation to the Official Zoning Map classification for the property, any other code/ordinance provisions, including substantive and procedural requirements applicable to the proposal (as described in the materials provided by the applicant); 3. A reasonable identification of other governmental policies, regulations or constraints concerning the application. Page 9 of 33 E. Participants. When a pre -application conference is required, the applicant shall meet with the Director or his/her designee(s) and any other staff members as appropriate to discuss the proposed development. The pre -application may be recorded. F. Disclaimer. Failure of the Director, his/her designee or any staff member to provide any of the information required by this Section shall not constitute a waiver of any of the standards, criteria or requirements for the application. Any discussion at the pre -application conference is for the purpose of acquainting the applicant with the known requirements for an undefined proposal. As a result, the discussions shall not bind the City in any manner or prevent the City's future enforcement of all applicable codes, plans and regulations. G. Pre -application Meeting Fee. Requests for a pre -application meeting shall be submitted on forms provided by the City with a Pre -Application Meeting Fee as set by Resolution of the City Council. 23.20.020 Permit Application, Forms and Additional Information. Applications for permits shall be submitted on forms provided by the Director. A complete permit application shall consist of all materials required by the applicable development regulations in the code for the individual permit/approval. In addition, the applicant shall provide the following general information: A. A completed permit/approval application form, which must be signed by the record owner of the property (the person(s) whose name is on the most recently recorded deed), or contract purchaser with written permission from the record owner). Any person authorized to submit an application for a permit/approval may be represented by an agent. However, any application signed by an agent must be accompanied by a verified statement signed by the record owner, specifically authorizing the agent to submit the application on the record owner's behalf. B. The street address and/or a legal description of the subject site, as required by the applicable development regulations for the individual permit/approval. C. The applicable fee for the permit/approval. D. Evidence of adequate water supply as required by RCW 19.27.097 or a copy of an application for a water concurrency determination submitted to the City or a copy of a request as submitted to the appropriate utility district. E. Evidence of sewer availability or a copy of an application for a sewer concurrency determination submitted to the City or a copy of a request as submitted to the appropriate utility district. F. An application for a traffic concurrency determination or a copy of an application for a transportation concurrency determination submitted to the City. 23.20.030 Acceptance of Application at the Counter. When an application is received over-the-counter by the City, the City Director shall immediately determine whether the Page io of 33 following essential items are present. If the following items are not present, the application shall not be accepted and shall be immediately returned to the applicant. A. The completed required application form; B. The required application fee; and C. The signature of the applicant on the required form and signed written authorization of the property owner of record, if the applicant is not the owner. 23.20.040 Completeness of Applications. A. Determination of Completeness. I. Deadline. Within twenty-eight (28) days after receiving a project permit application, the City shall mail or personally deliver to the applicant, a determination which states either: (a) that the application is complete; or (b) that the application is incomplete and exactly what is necessary to make the application complete. 2. What must be included. If more than one application is submitted under the consolidated permit review process, the determination of completeness shall include all project permits being reviewed in a consolidated manner. To the extent known by the City, other agencies with jurisdiction over the project shall be identified in the determination of completeness. However, it is the applicant's responsibility to determine which permits are required from other agencies for a development, and to submit the appropriate permit applications. 3. Required elements. A determination of completeness is made by the City when the application includes all of the elements identified in the development regulations in this chapter as well as the chapter relating to the individual permit/approval. The City's issuance of a determination of completeness means that the application is sufficiently complete to initiate review, even though additional information may be required by the City during processing or when subsequent application modifications are made. Issuance of a determination of completeness does not bar the City from requesting additional information or studies whenever new information is required, or substantial changes are made to the proposal. 4. Deemed Complete. If a determination of completeness is not issued by the City as provided in this section and within the deadlines established herein, the permit/approval application shall be deemed complete. 5. Effect of Determination of Completeness or Application Deemed Complete. If an application has been determined complete or deemed complete under this section, it does not mean that the application is "vested" to the applicable development regulations in place at the time the application was determined complete or deemed complete under this section. Not all project permit applications are subject to the vested rights doctrine. An Page ii of 33 application that is "deemed complete" may not trigger vesting. The City will not make any determination whether an application is vested prior to the time that the City has determined that the application is consistent with the applicable development regulations. B. Incomplete Applications. 1. Once the applicant receives notice of an incomplete application, the applicant has two choices. The applicant may: a. Submit the information requested by the City within ninety (90) days. If the additional information is submitted within this time period, the Director shall re- initiate the process for a determination of completeness in Subsection A(1) above, and notify the applicant within fourteen (14) days of the receipt of the additional information whether the application is complete or incomplete. If another notice of incomplete application is sent to the applicant, the process shall continue until the City issues a determination of completeness. b. Fail (or refuse) to submit the information requested by the City within ninety (90) days. After this period expires, the Director shall send a letter by certified mail to the applicant, informing the applicant that unless the information is received within thirty (30) days from the date of the letter, the Director will make written findings and issue a decision that the application has expired for lack of the information necessary to complete review and processing. The decision shall be sent to the applicant, and will also state that the City shall take no further action on the application, and if no arrangements are made within thirty (30) days to pick up the application materials, they will be destroyed. If the application expires under this procedure, the applicant may request a refund of the application fee remaining after the City's determination of incompleteness. A decision that an application has expired does not preclude the applicant from submitting new applications which are the same or substantially similar to the expired application. C. "Holding" of Applications. Applicants may not request that the City "hold" incomplete or complete applications in abeyance, indefinitely or for any set period of time. Once an application is submitted to the City, it will be processed according to the timeframes in this Title to a final decision. 23.20.050. Deadline for Submission of Materials Prior to Decision/Hearing. All documents and other evidence in support of an application and relied upon by the applicant for approval shall be submitted to the Director no more than seven (7) days after the City issues the notice of application or seven (7) days prior to the public hearing on the application. Documents or evidence submitted after that date shall be received by the Director, but may be too late to be considered in the decision (if no hearing is allowed before an appeal). If a hearing is allowed on the application, documents or evidence received after that date shall be received by the Director and transmitted to the hearing body, but may be too late to include with or to integrate in the staff report and staff s evaluation of the application. Page 12 of 33 23.20.060 Changes or Additions to Application During Review Period. A. When documents or other evidence are submitted by the applicant during the review period but after the application is determined (or deemed) complete, the assigned reviewer shall determine whether or not the new documents or other evidence submitted by the applicant significantly revise the application. Some of the factors that the City may consider as significantly revising the application include, but are not limited to, adding/subtracting from the property originally included in the application, making changes in the proposed use, expansion of any proposed structures, revisions requiring additional potable water and/or sewer, etc. B. If the director determines that the new documents or other evidence significantly change the application, director shall include a written determination that a significant change in the application has occurred. Such a determination may trigger the need for additional review and submission of additional information, including, but not limited to, revised application materials and a new SEPA determination. In the alternative, the reviewer may inform the applicant either in writing, or orally at the public hearing, that such changes may constitute a significant change (see subsection C below), and allow the applicant to withdraw the new materials submitted. C. If the applicant's new materials are determined to constitute a significant change in an application that was previously determined complete, the City shall take one of the following actions: 1. If the applicant chooses to withdraw the new materials which constitute a significant change in the application, the City shall continue to process the existing application without considering the new documents or other evidence; or 2. Allow the applicant to submit a new application with the proposed significant changes, immediately after the existing application is withdrawn. If the applicant chooses this option, the application shall be subject to an additional fee, separate review for completeness, and will be subject to the standards and criteria in effect at the time the complete new application was submitted. Chapter 23.30 Public Notice Sections: 23.30.010 Notice of Application. 23.30.020 Published Notice of Application. 23.30.030 Posted Notice of Application 23.30.040 Optional Public Notice of Application. 23.30.050 Notice of Public Hearing. 23.30.060 Shoreline Notice 23.30.010 Notice of Application. Page 13 of 33 A. The purpose of the Notice of Application is to give nearby property owners and other interested persons the opportunity to submit written comments about the application before the decision on the application is made. The goal of this notice is to invite people to participate early in the decision -making process. B. Within fourteen (14) days after the City has made a determination of completeness, and before making a decision on an application, the Director shall issue a Notice of Application to: l . All owners of record of real property within a minimum of three hundred (300) feet of the subject site; 2. All City -recognized neighborhood groups or associations whose boundaries include the subject site; 3. Any person who submits a written request to receive a notice; and 4. Any government agency that is entitled to notice or that is affected by the application. C. The Notice of Application for a pending application shall: 1. Provide a fourteen (14) day period for submitting written comments before a decision is made on the permit, and state the place, date and time the comments are due, and the person to whom the comments should be addressed (the public comment period for a notice of application under the purview of the City's shoreline master program (SMP) shall be not less than 30 days following the date of the Notice of Application; 2. Identify the date of submission of the initial application, the date the notice of complete application and the date of the Notice of Application; 3. Describe the street address or other easily understandable reference to the location of the site; 4. Include the name and telephone number of a contact person regarding the application; 5. Describe the proposal and identify all project permits requested in the application, and list all studies requested by the City; 6. List the relevant approval criteria for the permit applied for, by name and number of code sections; Page 14 of 33 7. Describe existing environmental documents that evaluate the proposed project, and, if not otherwise stated on the Notice of Application, the location where the application and any studies can be reviewed. 8. State that any person may comment on the application, receive notice of and participate in any hearings and request a copy of the decision on the application, and describing any appeal rights; 9. Identify the date, time, place and type of hearing, if a hearing has been scheduled when the date of notice of application is issued; 10. If made at the time the notice of application is prepared, the notice of application shall include a summary of the preliminary determination of consistency required by chapter 23.40.020, and a statement of preliminary determination of those development regulations that will be used for project mitigation, as provided in Section 23.40.050 (and the City's SEPA ordinance); 11. Include any other information determined appropriate by the Director such as the SEPA Responsible Official's SEPA threshold determination, if complete at the time of issuance of the Notice of Application. 12. For preliminary plat applications: a. For a preliminary plat adjacent to or within one mile of the municipal boundaries of any city or town, which contemplates the use of any city or town utilities, mailed notice shall be given to the appropriate city or town authorities; b. Notice of the filing of a preliminary plat of a proposed subdivision adjoining the boundaries of the County shall be given to the appropriate County officials; and C. Notice of the filing of a preliminary plat of a proposed subdivision located adjacent to the right-of-way of a state highway or within two miles of the boundary of a state or municipal airport shall be given to the State Secretary of the Department of Transportation. 23.30.020 Published Notice of Application. Public notice of an application shall be published in the City's official newspaper or in a newspaper of general circulation within fourteen (14) days after the City has made a determination of completeness on the application or in the 1" available paper beyond 14 days (recognizing that the paper is a weekly publication and that there are publication deadlines). The published notice shall contain at a minimum: (1) the project location by street address or other means of ready identification; (2) a description of the proposal; (3) identification of the permit applications submitted; (4) the public comment period deadline; (5) location where comments may be sent and location where application materials may be reviewed. Page 15 of 33 23.20.030 Posted Notice of Application. Public notice of an application shall be posted by the applicant at the applicant's cost on one or more notice boards as follows: A. The posted notice board shall include all of the information set forth in Section 23.30.010(C) above. B. The notice board shall be installed within fourteen (14) days after the City issues the notice of complete application, and shall be placed: 1. At the midpoint of the street fronting the site or as otherwise directed by the Director for maximum visibility; 2. Five (5) feet inside the street property line, except where the board is structurally attached to an existing building; provided, that no notice board shall be placed more than five (5) feet from the street without approval of the Director. 3. The top of the notice board must be between five (5) and six (6) feet above grade; and 4. The notice board must be placed where it is completely visible to pedestrians. C. Additional notice boards may be required when: 1. The site does not abut a public road; 2. A large site abuts more than one public road; or 3. The Director determines that additional notice boards are necessary to provide adequate public notice. D. Notice boards shall be maintained in good condition by the applicant during the application review period until the final decision issues. E. The applicant shall submit an affidavit of posting to the Director at least ten (10) days prior to the public hearing on the application or the deadline for public comments. If an affidavit is not filed as required, or if the notice board is removed during this time period, any scheduled hearing or deadline for public comments shall be postponed until the applicant complies with this requirement. F. Notice boards shall be constructed and installed in accordance with the City's building code or the Building Official's specifications. Alternatively, the City may make available public notice signs which can be purchased from the city upon payment of a fee to be set by resolution. 23.30.040 Optional Public Notice of Application. A. The Director, in his or her discretion, may: Page 16 of 33 1. Notify the public or private groups with known interest in a proposal or type of proposal; 2. Notify the news media; 3. Place notices in appropriate regional or neighborhood newspapers or trade journals; 4. Publish notice in agency newsletters or send notice to agency mailing lists, either general lists or lists for specific proposals or subject areas; and 5. Mail notice to neighboring property owners. B. The Director's failure to provide optional notice, as described in this section, shall not be grounds for invalidation of any permit decision. 23.30.050 Notice of Public Hearing. A. Mailed Notice of Public Hearing. The City shall use the records of the Kitsap County Assessor's Office as the official records for determining ownership of property. The Director shall mail notice of the public hearing as follows: At least ten (10) days before the hearing date, notice shall be mailed to: (a) . The applicant and all owners or contract purchasers of record of the property that is the subject of the application; (b) All property owners of record within Three -Hundred (300) feet of the site; (c) Affected governmental agencies as determined by the City; (d) Any neighborhood or community organization whose boundaries include the property proposed for development, and which has requested notice; (e) Any person who submits a written request to receive notice; (f) For appeals, the appellant and all persons who provided testimony in the original decision; B. Affidavit of Mailed Notice of Public Hearing. The Director or his/her designee shall have an affidavit of mailed notice of public hearing prepared and made a part of the administrative record. The affidavit shall be a sworn statement stating the date that the notice of public hearing was mailed to the persons who must receive notice, as identified herein. C. Published Notice of Public Hearing. Page 17 of 33 1. At least Ten (10) days before the hearing, notice of the hearing shall be printed in the City's Official Newspaper (a newspaper in general circulation in the City). The newspaper's affidavit of publication of the notice shall be made part of the administrative record. 2. Content of Notice of Public Hearing. The notice of public hearing shall contain: a. The name and address of the applicant and the applicant's representative; b. A description of the subject property reasonably sufficient to inform the public of its location, including but not limited to, a vicinity location or written description, a map or postal address, and a subdivision lot and block designation, but need not include a legal description. A legal description alone does not meet this requirement; C. The date, time and place of the public hearing; d. The nature of the application and the proposed land use or uses that could be authorized for the property; e. A statement that all interested persons may appear and provide testimony; f. The sections of the code that are pertinent to the hearing procedure, including, but not limited to, the codes describing the applicable criteria and development standards that apply to the application; g. The threshold determination made under SEPA (WAC 197-11-330), if any; h. A statement describing when the information in the administrative record may be examined by the public, and when and how written comments addressing findings required for a decision by the decision-maker(s) may be admitted; i. The name of a City representative to contact and the telephone number where additional information may be obtained; j. A statement explaining that a copy of the application, all documents and relied upon by the applicant, and a list of the applicable criteria for the application are available for inspection by the public at no cost and that copies will be provided at the requestor's cost; k. A statement explaining that a copy of the staff report will be available for inspection at no cost at least seven (7) days prior to the hearing and that copies will be provided at the requestor's cost. Page 18 of 33 D. Final Notice of Decision for project permits not requiring a public hearing issued in accordance with POMC 23.50.100 (C) shall be mailed to the applicant. Chapter 23.40 Application Review Procedures Sections: 23.40.010 Purpose. 23.40.020 Determination of Consistency. 23.40.030 Administrative Interpretations. 23.40.040 Review of Applications. 23.40.050 Initial SEPA Analysis. 23.40.010 Purpose. The purpose of this chapter is to establish the procedures and the decision criteria for each development application or approval. 23.40.020 Determination of Consistency. The decision criteria set forth below shall apply to all Administrative, Combination and Quasi -Judicial applications: A. Consistency. The applications are reviewed by the City to determine consistency between the proposed project and the applicable regulations and the Comprehensive Plan provisions. 1. A proposed project's consistency with the City's development regulations shall be determined by consideration of: a. The type of land use; b. The level of development, such as units per acre or other measures of density; C. Availability of infrastructure, including public facilities and services needed to serve the development; and d. The character of the development, such as development standards. 2. Upon review of an application, the decision -maker shall determine whether the building and/or site design complies with the following provisions: a. The Comprehensive Plan; b. The provisions of Title 15 (the Building Code) and provisions that affect building location and general site design; C. The Washington State Environmental Policy Act (SEPA), if not otherwise satisfied; d. The City's Design Standards. Page 19 of 33 3. Limitations on Review. During project review, the City shall not re- examine alternatives to or hear appeals on the items in subsection (A) (1) of this section except for issues of code interpretation. 4. Additional Review Criteria. Additional review criteria appear in each chapter or section relating to the development regulations for an individual project permit application or other approval. All of the criteria in this section and the criteria relating to the individual application(s) must be satisfied in order for the City to issue an approval. 4. Burden of Proof. The burden of proof for demonstrating that the application is consistent with the applicable regulations is on the proponent. The project application must be supported by proof that it conforms to the applicable elements of the City's development regulations and the Comprehensive Plan, and that any significant adverse environmental impacts have been adequately addressed. 23.40.030 Administrative Interpretations. A. Purpose. The primary objective of administrative interpretation is to ascertain the intent of the code provision at issue and to give effect to that intent. Administrative interpretation shall not be used to amend or change the code. The City's development regulations (the Zoning Code and Subdivision Code) shall be interpreted whenever any of its provisions, or the application of such provisions to any specific set of circumstances, is ambiguous, i.e., where the code is subject to two or more reasonable interpretations. B. Administration. The Director is authorized and directed to administer the provisions of this Section and shall have the authority to approve or deny administrative interpretations without a hearing in accordance with this Section. C. Procedure. The following steps shall be followed in the processing of an administrative interpretation. 1. 23.20.040 Determination of Complete Application; 2. 23.40.020 Determination of Consistency and 3. 23.50.100 Notice of Decision. 4. Ch. 23.60 Administrative Appeal (if any). D. Requirements for a Complete Application. The following materials shall be submitted to the City in order to constitute a complete application for an administrative interpretation; 1. The name, address, telephone number and e-mail address of the applicant, the completed application form with the date of submission to the City and the applicable fee; Page 20 of 33 2. An identification of the code provision that is the subject of the applicant's administrative interpretation, and a description of the applicant's perception of the ambiguity in the code; 3. A description of the set of circumstances, the address of the property or identification of the development that the applicant believes has created the ambiguity or two or more reasonable interpretations of the code provision identified in Subsection D(2) above; and 4. If the applicant is requesting an administrative interpretation relating to the applicability of a code provision to a particular piece of property, the applicant shall submit a verified statement that this property is in the exclusive ownership of the applicant, or that the applicant has submitted the request for the interpretation with the consent of all owners of the affected property. E. Criteria for Approval. Administrative interpretation shall utilize generally recognized principles of statutory and ordinance interpretation adopted by the courts of this state. In addition: 1. The provisions of the Zoning and Subdivision Code shall be considered to include the minimum requirements adopted for the promotion and protection of the public health, safety and general welfare, and all administrative interpretations shall be made in this context. 2. The provisions of the Zoning and Subdivision Code is not intended to interfere with, abrogate or annul any easements, covenants, or other agreements between parties, except where the agreements may conflict with the enforcement of the Zoning and Subdivision Codes. 3. In the case of conflicts between the portions of the Zoning and Subdivision Code and other rules, regulations, resolutions, ordinances or statutes lawfully adopted by other authority having jurisdiction within the City, the most restrictive shall govern. In the case of conflicts between the text, maps and charts of the Zoning and Subdivision Code, the test shall govern unless otherwise stated. 4. Zoning Map Interpretation. Where uncertainty exists as to the location of any boundaries of the zones shown on the City's Official Zoning Map, the following shall apply: a. Where more than one of the following provisions is applicable in any given situation, the first stated and applicable provision shall prevail over all other provisions: i. Where a zone district boundary line is given a position within or abutting a highway, road, street or alley, which does not appear to be Page 21 of 33 located in any zone district (other than an overlay zone district), the zone district boundary shall be deemed to be the center of such right-of-way. ii. Where a zone district boundary line is shown as closely and approximately following subdivision plat lot lines, municipal boundary or county boundary lines, the zone district boundary line shall be deemed to coincide with such known lot lines or boundaries. iii. Where a parcel within a zone district has a boundary line shown by a specific dimension, that dimension shall control. iv. Where a zone district boundary line is located with a reference to a fixture, monument, or natural feature, the location of the boundary line with respect to the attribute shall control. V. In all other circumstances, the location of the zone district boundary line shall be determined by scaling from the Official Zoning Map. F. No Limitation for Final Decision. An administrative interpretation is not a project permit application, and is not subject to a deadline for issuance of a final decision. 23.40.040 Review of applications. Within ten (10) days of accepting a complete application, the Director shall: A. Transmit a copy of the application, or appropriate parts of the application, to each affected government agency and city department for review and comment, including those responsible for determining compliance with state and federal requirements. The affected agencies and city departments shall have fifteen (15) days to comment on the application. The agency or city department is presumed to have no comment if comments are not received within this fifteen day period. The Director shall grant an extension of time only if the application involves unusual circumstances. B. The Director shall provide for public Notice of Application, as set forth in Section 23.30.010. C. Project review by the director and appropriate City staff shall identify specific project design and conditions relating to the character of the development, such as the details of site plans, curb cuts, drainage swales, the payment of impact fees, or other measures to mitigate a proposal's probable adverse environmental impacts. 23.40.050 Initial SEPA analysis. A. In addition to the review for consistency with development regulations, the Director shall review the project permit application for consistency with the State Environmental Policy Act Page 22 of 33 (SEPA, chapter 43.21C RCW, the SEPA Rules, chapter 197-11 WAC and the City's Environmental Policy Ordinance) and shall: 1. Determine whether applicable regulations require studies to adequately analyze all of the proposed projects specific probable adverse environmental impacts; 2. Determine whether applicable regulations require mitigation measures to adequately address identified environmental impacts; and 3. Provide prompt and coordinated review by other governmental agencies and the public on compliance with applicable environmental laws and plans, including mitigation for specific project impacts that have not been considered and addressed at the plan or development regulation level. B. In the review of a project permit application, the Director shall determine whether the requirements for environmental analysis, protection and mitigation measures in the applicable development regulations, comprehensive plan and/or in other applicable local, state or federal laws provide adequate analysis of and mitigation for the specific adverse environmental impacts of the proposal. C. If the Director bases his/her approval of the project permit application on compliance with the requirements or mitigation measures described in subsection A of this section, the City shall not impose additional mitigation under SEPA during project review for the same adverse environmental impacts. D. A comprehensive plan, development regulation or other applicable local, state or federal law provides adequate analysis of, and mitigation for, the specific adverse environmental impacts of a proposal when: 1. The impacts have been avoided or otherwise mitigated; or 2. The City has designated in the plan, regulation or law that certain levels of service, land use designations, development standards or other land use conditions allowed by chapter 36.70A RCW are acceptable. E. In determining whether a specific adverse environmental impact has been addressed by an existing City comprehensive plan or development regulation, or by the regulations or laws of another government agency, the Director shall consult verbally or in writing with that agency and may expressly defer to that agency. In making this deferral, the Director shall base or condition any project approval on compliance with these other regulations. F. Nothing in this section limits the authority of the Director in reviewing or mitigating the impacts of a proposed project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided in chapter 43.21C RCW. Chapter 23.50 Page 23 of 33 Conduct of the Public Hearing. 23.50.010 General. 23.50.020 Responsibility of Director. 23.50.030 Announcements by Hearing Body. 23.50.040 Appearance of Fairness/Conflict of Interest. 23.50.050 Ex Parte Communications. 23.50.060 Disqualification. 23.50.070 Presenting and Receiving Evidence. 23.50.080 Burden of Proof 23.50.090 Continuation of Hearing 23.50.100 Decision 23.50.110 Reconsideration 23.50.010 General. Public hearings on all applications not involving the Hearing Examiner shall be conducted by the Hearing Body in accordance with this chapter. Public hearings conducted by the Hearing Examiner shall be conducted in accordance with this chapter and the Examiner's adopted rules. 23.50.020 Responsibility of Director. The Director shall: A. Schedule project applications for review and public hearing; B. Provide the required notice; C. Prepare the staff report on the application, which shall be a single report which sets forth all of the decisions made on the proposal as of the date of the report, including recommendations on project permits in the consolidated permit process that do not require an open record pre - decision hearing. The report shall also describe any mitigation required or proposed under the City's development regulations or SEPA authority. If the threshold determination, other than a determination of significance, has not been issued previously by the City, the report shall include or append this determination. D. Prepare the notice of decision or findings, conclusions and decision, if required by the decision maker(s) and mail a copy of the same to those identified in Section 23.50.100 (D) as entitled to receive the decision. E. For those Administrative permit applications, the Director shall issue a Notice of Decision on the application. The Notice of Decision shall issue within the deadline set forth in Section 23.50.100 (E) and to those persons identified in that Section. 23.50.030 Announcements by Hearing Body. A. At the commencement of the hearing, the Hearing Body shall state to those in attendance (and may also provide a written handout with this information): Page 24 of 33 1. Identification of the applicants, the application number and a short summary of the nature of the application; 2. Identification of the applicable approval criteria and standards that apply to the application or appeal; and 3. A statement that testimony and evidence shall concern the approval criteria that the person testifying believes to apply to the decision. 23.50.040 Appearance of Fairness/Conflict of Interest. A. The applicant and the participants in the public hearing are entitled to an impartial review authority as free from issues relating to appearance of fairness, conflicts of interest or ex parte communications as reasonably possible. Therefore: 1. At the beginning of the public hearing, the Hearing Body Chair shall ask the Hearing Body members whether they have any appearance of fairness, conflict of interest or ex parte communications to disclose; 2. A member of the Hearing Body shall not participate in any proceeding in which they, or any of the following, has a direct or substantial financial interest: their spouse, brother, sister, child, parent, father-in-law, mother-in-law, partner, any business in which they are then employed, serving or have served within the previous two years, or any business with which they are negotiating for or have an arrangement or understanding concerning prospective partnership or employment. Any actual or potential interest shall be disclosed at the hearing where the action is being taken. 23.50.050 Ex Parte Communications. At the beginning of the public hearing, Hearing Body members shall disclose the substance of any pre -hearing ex parte contacts (as defined below) concerning the application or appeal. Each member of the Hearing Body disclosing such contacts shall state whether the contact has impaired their impartiality or their ability to vote on the matter and shall participate or abstain accordingly. A. Members of the Hearing Body shall not: 1. Communicate directly with any applicant, appellant, opponent, proponent or other party to the proceedings, or representative of a party about any issue involved in a hearing outside of the public hearing on the matter; or 2. Consider any communication, report or other materials outside the administrative record compiled by the City in connection with a particular case as evidence in the public hearing on the matter, unless all participants are given the opportunity to respond to the evidence outside the record. Page 25 of 33 B. No decision or action of the Hearing Body shall be invalid due to ex parte contacts or bias resulting from ex parte contacts, if the person receiving the contact: 1. Places in the record the substance of any written or oral ex parte communications concerning the decision or action; and 2. Makes a public announcement at the outset of the public hearing, of the communication and of the right of all participants to dispute the substance of the communication made. This announcement shall be made at the first hearing following the communication during which action shall be considered or taken on the subject of the communication. C. Communication between City staff and the Hearing Body is not considered an ex parte contact unless the City is the applicant for the project. 23.50.060 Disqualification. Disqualification of a member of the Hearing Body due to contacts or conflict may occur as follows: A. A member of the Hearing Body may disqualify him/herself by stating the reason for the disqualification, and then waiting until all conflict of interest and appearance of fairness issues are resolved, to ensure that there will still be a quorum to hold the hearing. B. Once a member of the Hearing Body identifies any conflict of interest and appearance of fairness issues, he or she may be challenged by anyone and asked to disqualify him/herself from the proceeding. The City Attorney will rule on the challenge, if the member of the Hearing Body still desires to participate in the public hearing. C. If a member of the Hearing Body disqualifies him/herself or is asked to disqualify him/herself under the procedure in Subsection B of this Section, and if there is still a quorum after such disqualification, the Hearing Body member shall leave the hearing room and not reappear until after the final vote on the final decision made by the Hearing Body. D. If a quorum of the Hearing Body is lost through disqualification, then a quorum of those members present who declare their reasons for disqualification shall be re -qualified to make a decision. 23.50.070 Presenting and Receiving Evidence. A. The Hearing Body may set reasonable time limits for verbal presentations and may limit or exclude cumulative, repetitious, irrelevant or personally derogatory testimony or evidence. B. Members of the Hearing Body may visit the property and the surrounding area prior to the public hearing and may use the information obtained during the site visit to support their decision only as follows: Page 26 of 33 1. The members of the Hearing Body visiting the site may not engage in any ex parte communications with anyone while visiting the property; and 2. Any member of the Hearing Body who visited the site must disclose this fact at the beginning of the hearing, as well as (a) the time, manner and circumstances of the visit; and (b) any information obtained during the site visit. An opportunity must be provided during the public hearing for anyone to dispute this information. C. The Chair of the Hearing Body shall swear in all persons desiring to present testimony. D. Information shall be received from the staff, the public, opponents and proponents. Cross-examination or questioning of witnesses shall be allowed subject to the discretion of the Hearing Body Chair. E. The Hearing Body Chair may be asked to take official notice of commonly known and accepted information. Information officially noticed need not be proved by submission of formal evidence to be considered by the Hearing Body. The Hearing Body, however, may take notice of matters set forth below at any time. Examples of information that may be officially noticed (and rebutted) are: Ordinances, resolutions, rules, official adopted development standards and state law; 2. Public records and facts judicially noticeable by law. F. When the Hearing Body Chair has closed the public hearing portion of the hearing, the Hearing Body may openly discuss the issue and may further question the staff or any person submitting information. An opportunity to present rebuttal information shall be provided if new information is presented during the questioning. When all evidence has been presented and all questioning and rebuttal completed, the presiding officer shall official close the record and end the hearing. G. No verbal testimony shall be accepted after the close of the public hearing, or once the Hearing Body begins its deliberations, unless specifically allowed by the Hearing Body upon motion by a party with notice to the public. 23.50.080 Burden and nature of proof. The burden of proof is on the proponent. The project permit application must be supported by substantial evidence that it conforms to the applicable criteria in the City's Comprehensive Plan and Development Regulations, as well as applicable law. The proponent must also prove that any significant adverse environmental impacts have been adequately mitigated. 23.50.090 Continuation of Public Hearing. A. If the Hearing Body decides to continue the public hearing before the Hearing Body closes the portion of the hearing to public testimony, the public hearing shall be continued to a Page 27 of 33 date, time and place established by the Hearing Body. An opportunity shall be provided at the continued hearing for persons to present and respond to new written evidence and oral testimony. If new written evidence is submitted at the continued hearing, any person may request, before the conclusion of the continued hearing, that the record be left open for at least seven days, so that they can submit additional written evidence in response to the new written evidence. B. If the Hearing Body leaves the administrative record open for additional written evidence, the record shall be left open for at least seven days after the hearing. Any extension of time to leave the administrative record open for additional written evidence shall be subject to the deadline for issuance of a final decision in Section 23.50.100 (E), unless the extension is requested or agreed to by the applicant in writing. C. At the outset of the continued hearing, the Hearing Body shall present the announcements and follow the appearance of fairness/conflict of interest procedures set forth in Section 23.50.040 and 23.50.050 above. 23.50.100 Decision. A. Generally. Following the public hearing and deliberations, the Hearing Body shall approve, conditionally approve or deny the application. B. Decision after an Open Record Hearing. The Hearing Body's decision shall issue within Ten (10) working days after close of the hearing, unless a longer period is agreed to by the parties. If the City is unable to issue its final decision on a project permit application within the time limits provided for in this Section, it shall provide written notice of this fact to the applicant. The notice shall include a statement of reasons why the time limits have not been met and an estimated date for issuance of the notice of decision. C. Notice of Decision Contents. The Notice of Decision issued by the Director on an Administrative application and the Findings of Fact and Conclusions of Law issued by the Hearing Body on a Quasi -Judicial or Combination application shall include the following, as a minimum: 1. A list of all project permits included in the decision, including all permits being reviewed through the consolidated review process; RC W); 2. A date and description of the decision; 3. A statement of any threshold determination made under SEPA (chapter 43.21 C 4. The procedures for an administrative appeal, if any. 5. A statement that the affected property owners may request a change in property tax valuation notwithstanding any program of revaluation by contacting the Kitsap County Assessor. Page 28 of 33 6. The duration of the permit approval and a statement summarizing the permit expiration and extension procedures (if any). 7. A statement that the complete project permit file, including findings, conclusions and conditions of approval, if any, is available for review. The notice shall list the place that the file is available and the name and telephone number of the City representative to contact about reviewing the file. D. Persons Entitled to Receive Notice of Decision. A Notice of Decision, or the written findings of fact and conclusions, shall be provided to the applicant, to any person who submitted written comments on the application (other than a signed petition), to any person who testified at the hearing or any person who requested a copy of the decision, and to the Kitsap County Assessor. E. For project permit applications, the City shall issue a Notice of Decision within one - hundred -twenty days of the issuance of the determination of completeness on the application, unless the applicant has agreed to a different deadline. F. In calculating the time periods for issuance of the notice of decision, the following periods shall be excluded: 1. Any period during which the applicant has been requested by the Director to correct plans, perform required studies, or provide additional required information. The period shall begin from the date the Director notifies the applicant of the need for additional information, until the date the Director determines that the additional information satisfies the request for information, or 14 days after the date the additional information is provided to the City, whichever is earlier; 2. If the Director determines that the information submitted is insufficient, the applicant shall be informed of the particular insufficiencies and the procedures set forth in Subsection E(1) for calculating the exclusion period shall apply; 3. Any period during which an environmental impact statement (EIS) is being prepared pursuant to chapter 43.21C RCW and the City's SEPA ordinance. 4. Any period for consideration and issuance of a decision for administrative appeals of project permits; 5. Any extension of time mutually agreed to in writing by the Director and the applicant. 6. The time limits established in this subsection do not apply to applications that: (a) are not project permit applications (such as amendments to the comprehensive plan or a development regulation); (b) requires siting approval of an essential public facility; (c) is Page 29 of 33 substantially revised by the applicant, in which case the time period shall start from the date that a determination of completeness for the revised application is issued by the Director. 23.50.110 Reconsideration. A. Generally. Any person identified in Section 23.60.030 as having standing to file an administrative appeal may request reconsideration of a decision of the Hearing Body which issues immediately after the open record public hearing on a project permit application described in this Chapter. B. Time to File. A request for reconsideration must be filed with the Director within ten (10) calendar days of the Hearing Body's written decision. Such requests shall be delivered to the Director by mail, by personal delivery or fax before 4:30 p.m. on the last business day of the reconsideration period. Requests for reconsideration that are received by mail after 4:30 p.m. on the last day of this reconsideration period will not be accepted, no matter when such requests were mailed or postmarked. C. Computation of Time. For the purposes of computing the time for filing a request for reconsideration, the day the Hearing Body's decision issued shall not be counted. If the last day of the reconsideration deadline is a Saturday, Sunday or holiday designated by RCW 1.16.050 or by City ordinance, then, the reconsideration must be filed on the next business day. D. Content of Request for Reconsideration. Requests for reconsideration shall be in writing, be accompanied by the required reconsideration fee (which shall be the same as the administrative appeal fee) and contain the following information: 1. The name, address and phone number of the requestor; 2. Identification of the application and final decision which is the subject of the request for reconsideration; 3. The requestor's statement of grounds for reconsideration and the facts upon which the request is based; 4. The specific relief requested; 5. A statement that the requestor believes the contents of the request to be true, followed by his/her signature and the date. E. Effect of Filing. The timely filing of a request for reconsideration shall stay the Hearing Body's decision until such time as the Hearing Body issues a decision on reconsideration. A person with standing to appeal the Hearing Body's decision may file an appeal, regardless of whether he/she requests reconsideration of the Hearing Body's decision. Page 30 of 33 F. Notice of Request for Reconsideration. The Director shall provide mailed notice that a request for reconsideration has been filed to all parties of record as defined in Section 23.50.100 (D) (parties entitled to receive Notice of Decision). G. Hearing Body's Action on Reconsideration. The Hearing Body shall consider the request for reconsideration based on the administrative record compiled on the application up to and including the date of the Hearing Body's decision. The Hearing Body may require or permit corrections of ministerial errors or inadvertent omissions in the preparation of the administrative record and the Hearing Body's decision. The reconsideration decision may modify, affirm or reverse the Hearing Body's decision. I. Notice of Final Decision on Reconsideration. The Director shall issue a Notice of Final Decision on Reconsideration in the manner set forth and to the persons identified in Section 23.30.010(B). J. Further Appeals. If no administrative appeal is allowed of the Hearing Body's decision, and a request for reconsideration was timely filed, then any judicial appeal must be filed of the Final Decision on Reconsideration according to chapter 36.70C RCW. Chapter 23.60 Open and Closed Record Appeals Sections: 23.60.010 Administrative Appeals. 23.60.020 Consolidated Appeal. 23.60.030 Standing to Initiate an Administrative Appeal. 23.60.040 Appeals of Decisions. 23.60.050 Procedure for Open Record Appeal Hearing. 23.60.060 Procedure for Closed Record Appeal Hearing. 23.60.070 Closed Record Decisions. 23.60.080 Judicial Appeals. 23.60.090 Submission of Application after Denial. 23.60.010 Administrative Appeals. An administrative appeal may be filed only for those decisions identified in the Table set forth in Section 23.10.060 showing the availability of an administrative appeal. 23.60.020 Consolidated Appeals. All administrative appeals of project permit decisions, other than appeals of determinations of significance (DS) and shall be considered together in a consolidated appeal before the highest Hearing Body. 23.60.030 Standing to Initiate Administrative Appeal. Only parties of record may file an administrative appeal of a decision. Page 31 of 33 A. Definition. The term "parties of record," for the purposes of this Title, shall mean: 1. The applicant; 2. Any person who testified at the open record public hearing on the application; 3. Any person who submitted written comments concerning the application (excluding persons who have only signed petitions or mechanically produced form letters); 4. The City Council; 5. Property owners within 300 feet of the property subject to the project permit application and/or 6. Any person who can demonstrate that he/she is aggrieved by the decision. 23.60.040 Appeals of Decisions. Appeals of Final Decisions shall be governed by the following: A. Standing. Only parties of record have standing to appeal the decision. B. Time to File. An appeal must be filed within fourteen (14) days after the issuance of the Notice of Decision. Appeals shall be delivered to the Director by mail, by personal delivery, or by fax before 4:30 p.m. on the last business day of the appeal period. Appeals received by mail after 4:30 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 decision is issued shall not be counted. If the last day of the appeal is a Saturday, Sunday or holiday designated by RCW 1.16.050 or by a City ordinance, then the appeal must be filed on the next business day. D. Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee, 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; The specific relief sought; Page 32 of 33 6. A statement that the appellant has read the appeal and believes the contents to be true, followed by the appellant's signature and date. 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. Burden of Proof. The appellant shall bear the burden to demonstrate that substantial evidence does not exist in the administrative record to support the decision of the Hearing Body. G. Standard of Review. The appeal body/officer shall determine whether there is substantial evidence in the administrative record to support the decision of the Hearing Body, or whether the decision is clearly erroneous or contrary to law. The appeal body/officer may affirm, modify or reverse the decision of the Hearing Body. H. Remand. Upon written agreement by the applicant to waive the requirement for a decision within the deadline established in 23.50.020 and the prohibition on more than one open record hearing in RCW 36.70B.060, the appeal body/officer may remand the decision to the Hearing Body for additional information. 23.60.050 Procedure for Open Record Appeal Hearing. An open record appeal hearing shall be held in the same manner as set forth in chapter 23.50 of this Title. 23.60.060 Procedure for Closed Record Appeal Hearing. A. The appeal body/officer shall consider the administrative record compiled by the Hearing Body in the open record hearing relating to the application subject to the appeal, which shall also include the written decision of the Hearing Body and the appeal(s). The administrative record may also include the transcript of the hearing before the Hearing Body on the subject application. B. No new testimony or other evidence will be accepted by the appeal body/officer during the closed record hearing. During the closed record hearing, the appeal body may hear oral argument from the staff, appellants and applicant. The argument shall describe the particular errors committed by the Hearing Body, with specific references to the administrative record. C. The hearing shall commence with a presentation by the Director, of the general background of the application and the issues in dispute. After the Director's presentation, the appellant shall first present oral argument, and then the other appellants or the applicant shall make their arguments. The appeal body/officer may question any party concerning disputed issues, but shall not request information not in the administrative record. 23.60.070 Closed Record Decision. The appeal body or officer shall render its decision within sixty (60) days after the closed record hearing in a resolution. 23.60.080 Judicial Appeals. The City's final decision on an application may be appealed by a person with standing to file a judicial appeal according to the procedures in chapter 36.70C RCW. Page 33 of 33 23.60.090 Resubmission of Application After Denial. Any permit application or other request for approval submitted pursuant to this Title that is denied shall not be resubmitted or accepted by the Director for review unless, in the opinion of the Director, there has been a significant change in the application or a significant change in conditions relating to the application. NOTICE OF CITY OF PORT ORCHARD ORDINANCE The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council meeting held February 23, 2016. ORDINANCE NO.008-16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, RELATING TO LAND USE AND ZONING; ESTABLISHING UPDATED INTERIM REGULATIONS ON PROCESSING PROJECT PERMIT APPLICATIONS; REPEALING ORDINANCE NO. 014-15; REPEALING CHAPTERS 16.06 AND 16.07 OF THE PORT ORCHARD MUNICIPAL CODE; ESTABLISHING A WORK PLAN; ESTABLISHING THE DATE OF A PUBLIC HEARING; SETTING TWELVE MONTHS AS THE EFFECTIVE PERIOD; DECLARING AN EMERGENCY OFR IMMEDIATE EFFECT; AND PROVIDING FOR SEVERABILITY AND CORRECTIONS. Copies of Ordinance No. 008-16 are available for review at the office of the City Clerk of the City of Port Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any interested person without charge. Thirty days after publication, copies of Ordinance No. 008-16 will be provided at a nominal charge. City of Port Orchard Brandy Rinearson City Clerk Published: Friday, March 4, 2016