This chapter shall be entitled "Land Use Review Procedures."
(Ord. 1591 § 51, 2014)
This chapter shall apply to the processing and appeal of all land use actions as defined by RCW 36.70B.030 unless specifically excluded herein.
(Ord. 1591 § 52, 2014)
The purpose of this chapter is to establish standard procedures for land use and related development decisions made by the City. The procedures are designed to promote timely and informed public participation, eliminate redundancy in the application, land use review, and appeal processes, minimize delay and expense, and result in land use actions that further the City goals, policies, and strategies as set forth in the City of Des Moines Comprehensive Plan. As required by RCW 36.70B.060, these procedures provide for an integrated and consolidated land use review process. The procedures integrate the environmental review process specified in Title 16 DMMC, Environment, with the procedures for land use actions specified in Title 14 DMMC, Buildings and Construction, Title 17 DMMC, Subdivisions, and this Title, and provide for the consolidation of appeal processes for land use actions.
(Ord. 1591 § 53, 2014)
This chapter is adopted pursuant to the authority set forth in DMMC § 18.01.040.
(Ord. 1591 § 54, 2014)
Except when a land use action is categorically exempt from SEPA, environmental review shall be conducted concurrently with review of other proposed land use actions requested by an applicant.
When a proposed development requires more than one land use action, the applicant may request concurrent review of all proposed land use actions.
(Ord. 1591 § 55, 2014)
(1)
As authorized by RCW 36.70B.140(1), the following land use actions are not subject to the provisions of RCW 36.70B.070, 36.70B.080, 36.70B.090, 36.70B.110, 36.70B.120, and 36.70B.130 because the City Council has determined that these projects present special circumstances that warrant a review process different from the process specified by this chapter:
(2)
As authorized by RCW 36.70B.140(2), the following Type I land use actions shall not be subject to the provisions of RCW 36.70B.060, 36.70B.110, 36.70B.120, and 36.70B.130:
(Ord. 1591 § 56, 2014; Ord. 1655 § 5, 2016)
Land use actions are classified into six types, based upon the entity responsible for the decision, the amount of discretion exercised by the decision maker, the degree of impact associated with the decision, the amount and type of public input sought, and the type of appeal available. The six categories of land use actions are as follows:
(1)
Type I. Administrative decision made without legal requirement for public comment.
(2)
Type II. Administrative decision made after legally required opportunity for public comment.
(3)
Type III. Quasi-judicial and other decisions by Hearing Examiner made after legally required opportunity for public comment.
(4)
Type IV. Quasi-judicial and other nonlegislative decisions by City Council made after legally required opportunity for public comment.
(5)
Type V. Quasi-judicial and other nonlegislative decisions by City Council made without legal requirement for public comment.
(6)
Type VI. Legislative decision by City Council made after legally required opportunity for public comment.
(Ord. 1591 § 57, 2014)
(1)
Specific types of project approval are categorized as is set forth in Table 18.20.080A, Project Review Chart, below.
18.20.080A Project Review Chart | ||
|---|---|---|
Decision Maker | Applicable Code Section | |
Type I – Administrative land use decisions made without legal requirement for public comment | Planning, Building and Public Works Director | |
Accessory dwelling unit (ADU) development permit | Planning, Building and Public Works Director | DMMC § 18.55.140 |
Building height bonus | City Manager | DMMC § 18.115.060(2) |
Comprehensive signage design plan permit | Planning, Building and Public Works Director | DMMC § 18.200.120 through § 18.200.140 |
Lot line adjustment (exempt DMMC § 18.20.060(2)) | Planning, Building and Public Works Director | Chapter 17.25 DMMC |
Sign permit | Planning, Building and Public Works Director | DMMC § 18.200.060 and § 18.200.080 |
Special use sign permit | Planning, Building and Public Works Director | DMMC § 18.200.110 |
Construction permits required under Title 14 DMMC (Buildings and Construction) categorically exempt from SEPA (exempt DMMC § 18.20.060(2)) | Building Official | Title 14 DMMC |
Design review decisions | Planning, Building and Public Works Director | DMMC § 18.235.110 and § 18.235.120 |
Determination that action is categorically exempt | SEPA Official | DMMC § 16.05.110 |
Reasonable use exceptions or determinations in environmentally critical areas | Planning, Building and Public Works Director | |
Interpretation of Title 12 DMMC, Streets, Sidewalks, and Public Places, Title 14 DMMC, Buildings and Construction, Title 16 DMMC, Environment, Title 17 DMMC, Subdivisions, and this Title | Planning, Building and Public Works Director or Building Official as applicable | Chapter 12.02 DMMC Chapter 14.02 DMMC Chapter 16.02 DMMC Chapter 17.02 DMMC Chapter 18.50 DMMC |
Off-street parking permit | Planning, Building and Public Works Director | DMMC § 18.210.060 |
Reduction of the minimum retail trade or personal business services requirements for mixed use developments | Planning, Building and Public Works Director | DMMC § 18.115.050(9)(b) |
Waiver of zoning requirements | Planning, Building and Public Works Director | DMMC § 18.35.050 |
Street vacations and other actions relating to use of public areas or facilities (exempt DMMC § 18.20.060(1)) | Planning, Building and Public Works Director | Title 12 DMMC |
Noise mitigation plan | Planning, Building and Public Works Director | DMMC § 18.185.060 |
Landscaping site plans | Planning, Building and Public Works Director | DMMC § 18.195.020(4) |
Exemptions from shoreline substantial development permit | Planning, Building and Public Works Director | DMMC § 16.20.010 |
Environmentally critical area development exception | Planning, Building and Public Works Director | DMMC § 16.10.300 |
Modification of parking provisions | City Manager | DMMC § 18.210.070 |
Temporary homeless encampments | Planning, Building and Public Works Director | DMMC § 18.170.080 |
Type II – Administrative land use decisions made after legally required opportunity for public comment | Planning, Building and Public Works Director | DMMC § 18.20.170 |
Applications for small domestic animals, large domestic animals and bee review | City Manager or City Manager's Designee | Chapter 18.150 DMMC |
Short subdivisions, preliminary approval | Planning, Building and Public Works Director | |
Modified short subdivisions | Planning, Building and Public Works Director | |
Alteration or vacation of binding site plan with no more than four lots | Planning, Building and Public Works Director | Chapter 17.20 DMMC |
Alteration or vacation of short subdivision without public dedication | Planning, Building and Public Works Director | DMMC § 17.20.050(2) and chapter 17.05 DMMC |
Binding site plan with no more than four lots | Planning, Building and Public Works Director | DMMC § 17.20.050(2) and chapter 17.30 DMMC |
Determination of the adequacy of a final environmental impact statement | SEPA Official | |
Determination of nonsignificance (DNS) and mitigated DNS | SEPA Official | |
Determination of significance (DS) (appeal by LUPA action only) | Planning, Building and Public Works Director | DMMC § 16.05.320(5)(d) |
Planning, Building and Public Works Director approval, conditional approval, or denial of a project based upon chapter 16.05 DMMC (SEPA rules) | Planning, Building and Public Works Director | |
Administrative decision made pursuant to chapter 16.15 DMMC, Flood Hazard Areas | City Manager or the City Manager's designee | DMMC § 16.15.170 |
Townhouse development with no more than four lots | Planning, Building and Public Works Director | DMMC § 18.60.050(2) and 17.05.150 |
Shoreline substantial development permit | Planning, Building and Public Works Director | DMMC § 16.20.010 |
Shoreline substantial development permit revisions | Planning, Building and Public Works Director | DMMC § 16.20.010 |
Modification of landscaping requirement(s) | Planning, Building and Public Works Director | DMMC § 18.195.420 |
Type III – Quasi-judicial and other decisions by the Hearing Examiner made after legally required opportunity for public comment | Hearing Examiner | DMMC § 18.20.180 |
Appeal of an administrative/land use decision | Hearing Examiner | DMMC § 18.20.160 |
Conditional use permit | Hearing Examiner | Chapter 18.140 DMMC |
Hearing Examiner approval, conditional approval or denial of a project based upon chapter 16.05 DMMC, SEPA | Hearing Examiner | Chapter 16.05 DMMC |
Variance | Hearing Examiner | DMMC § 18.35.070 |
Abatement of nonconforming uses (exempt DMMC § 18.20.060(1)) | Hearing Examiner | DMMC § 18.15.110 |
Type IV – Quasi-judicial and other nonlegislative decisions by the City Council made after legally required opportunity for public comment | City Council | DMMC § 18.20.190 |
Zoning map amendments (site specific) | City Council | Chapter 18.30 DMMC |
Subdivisions – preliminary plat approval | City Council | |
Modified subdivision – preliminary | City Council | |
Alteration or vacation of a subdivision – preliminary | City Council | |
Alteration or vacation of a short plat with public dedication – preliminary | City Council | |
Alteration or vacation of a binding site plan with public dedication – preliminary | City Council | DMMC § 17.20.050(1)(b) and chapter 17.10 DMMC |
Alteration of vacation of binding site plan with more than four lots; not involving a public dedication – preliminary | City Council | DMMC § 17.20.050(1) and chapter 17.30 DMMC |
Approval of business park and institutional campus master plans (exempt DMMC § 18.20.060(1)) | City Council | DMMC § 18.105.050 |
Binding site plan with more than nine lots, preliminary approval | City Council | DMMC § 17.30.050(2) and 17.30.090 |
Planned unit development, preliminary approval | City Council | Chapter 18.230 DMMC |
Townhouse development with more than nine lots | City Council | |
City Council approval, conditional approval or denial of a project based upon chapter 16.05 DMMC | City Council | Chapter 16.05 DMMC |
Shoreline substantial development permit with an environmental impact statement | City Council | DMMC § 16.20.010 |
Shoreline conditional use | City Council | DMMC § 16.20.010 |
Shoreline variance | City Council | DMMC § 16.20.010 |
Unclassified use permit | City Council | DMMC § 18.20.190 |
Type V – Quasi-judicial and other nonlegislative decisions by the City Council without requirement for public comment | City Council | DMMC § 18.20.200 |
Final alteration or vacation of binding site plan with public dedication | City Council | |
Final alteration or vacation of binding site plan with more than four lots and not involving a public dedication | City Council | |
Final alteration or vacation of short subdivision with public dedication | City Council | |
Final alteration or vacation of subdivision | City Council | |
Final binding site plan with more than four lots | City Council | DMMC § 17.30.070 |
Final modified short subdivision | City Council | DMMC § 17.15.090 |
Final modified subdivision | City Council | DMMC § 17.15.090 |
Final planned unit development | City Council | Chapter 18.230 DMMC |
Final townhouse development with more than four lots | City Council | Chapter 18.60 DMMC |
Subdivision – final plat | City Council | |
Type VI – Legislative decisions made by the City Council made after legally required opportunity for public comment (exempt pursuant to DMMC § 18.20.060(1)) | City Council | DMMC § 18.20.210 |
Area-wide rezones | City Council | DMMC § 18.30.100 |
Comprehensive Plan adoption or amendments | City Council | DMMC § 18.25.050 |
Textual code amendment of Titles 12, 14, 16 and 17 DMMC, Subdivisions, and this Title | Planning, Building and Public Works Director schedules public meeting before the City Council | |
(Ord. 1591 § 58, 2014; Ord. 1628 § 2, 2015; Ord. 1655 § 6, 2016; Ord. 1737 § 3, 2020)
(1)
All applications for land use actions and other City approvals specified in Title 12 DMMC, Streets, Sidewalks and Public Places, Title 14 DMMC, Buildings and Construction, Title 16 DMMC, Environment, Title 17 DMMC, Subdivisions, and this Title, shall be submitted on the forms contained in Appendix A to this chapter and pursuant to the specific provisions of the DMMC identified above. All applications shall be authorized by the property owner.
(2)
All applications shall be processed in such a manner that they may be heard, decided or extended by written agreement of the applicants by the appropriate body within the time periods set forth in the above-identified Titles from the date a completed application is filed, unless the delay is a result of the failure of the applicant to provide information required and necessary for review of the application.
(3)
Fees for applications for land use actions should be as set forth in the Fee Resolution approved by the City Council.
(Ord. 1591 § 59, 2014)
(1)
Applications for land use action (hereafter "land use applications") shall be closed and the City will terminate the processing of land use applications when an applicant fails to submit additional information, revisions, or corrections as requested by the Community Development Department ("Department") within 180 calendar days from the date of the Department's written request for additional information, revisions, or corrections. The Director may extend the response period beyond 180 days if within that time period the applicant provides and subsequently adheres to a schedule approved by the Director setting forth deadlines for submitting complete revisions, corrections, or other requested information.
(2)
If the Director terminates the processing of a land use application pursuant to subsection (1) of this section, an applicant may reinitiate review by the Department only by submitting a new land use application consistent with the provisions contained in this Code in effect at the time of resubmittal.
(3)
This section shall apply to land use applications submitted prior to the effective date of this section; however, no applications shall be terminated pursuant to this section prior to 180 days following the effective date of this section.
(Ord. 1835, 12/4/2025)
(1)
Informal Pre-Application Meetings. Applicants for a land use action may participate in an informal meeting prior to submittal of the application for land use action or the formal pre-application meeting. The purpose of the meeting is to discuss, in general terms, the proposed land use action, alternatives, required approvals, and the land use action process.
(2)
Formal Pre-Application Meetings. Unless waived by the Planning, Building and Public Works Director, potential applicants or their designees are required to attend a formal pre-application meeting for all Type III, Type IV, and Type VI land use actions. The purpose of the meeting is to discuss the nature of the proposed development, application and approval requirements, fees, review process and schedule, and applicable policies and regulations. As appropriate, the Planning, Building and Public Works Director shall invite representatives of affected agencies, such as other City departments and special purpose districts, to attend any formal pre-application meeting. This meeting requirement should be deemed waived in the event the Planning, Building and Public Works Director or the Planning, Building and Public Works Director's designee is unavailable to meet within 10 days of a request for such meeting.
(Ord. 1591 § 60, 2014)
(1)
An application for a proposed land use action shall not serve to vest any development rights until the Planning, Building and Public Works Director determines the application is complete as specified by this code.
(2)
Applications found to include material errors shall be deemed withdrawn and subsequent submittals shall be treated as a new application and shall require a new application fee.
(3)
Applicant-generated requests for revision(s), i.e., those requests which are not made in response to staff review or public appeal, that result in a substantial change to the proposed land use action, as determined by the Planning, Building and Public Works Director, shall be treated as a new application as of the date of receipt of the revision by the Planning, Building and Public Works Department and shall require a new application fee.
(Ord. 1591 § 61, 2014)
(1)
An application for land use action is complete for purposes of this section when it contains all of the following:
(a)
A completed application form.
(b)
All applicable fees.
(c)
Written authorization of the property owner.
(d)
A completed environmental checklist for projects subject to review under the State Environmental Policy Act (SEPA).
(e)
Information required in applicable titles of the Des Moines Municipal Code.
(2)
Notice of complete application shall be provided as provided in RCW 36.70B.070.
(3)
For the purposes of this section, applications will only be deemed "received" if filed during regular business hours with the appropriate department and date-stamped by a City official authorized to accept such applications.
(4)
More than one request for additional information may be required by the Planning, Building and Public Works Director prior to the issuance of a notice of complete application. The Planning, Building and Public Works Director shall attempt to minimize the number of requests for additional information. The applicant shall attempt to provide the requested information in a complete and prompt manner.
(Ord. 1591 § 62, 2014)
(1)
Upon a determination that a complete application for a land use action has been filed, the Planning, Building and Public Works Director shall issue a notice of proposed land use action.
(3)
Notice of Hearing Required.
(a)
All applications to be heard by the Hearing Examiner, except appeals of an administrative decision, require public notice. Unless the ordinance governing the application provides otherwise, written notice is mailed to all persons entitled by this chapter to receive notice and notice is given by at least one publication in the official newspaper of the City not less than 15 days prior to the scheduled hearing date. The form of the notice and the manner in which it is given shall conform with the requirements of this chapter. The Hearing Examiner may require or provide such additional notice as deemed necessary to serve the public interest, including publication in a newspaper of general circulation. The Planning, Building and Public Works Department shall be responsible for ensuring that appropriate public notice is given.
(c)
On appeals from administrative decisions, notice shall be required only to the administrator whose decision is being appealed and the appellant.
(4)
Notice of Hearing – Content. Each public notice required by this chapter shall contain at least the following information:
(a)
The date, time, and place of the hearing, as designated by the Hearing Examiner, except legal holidays, specified in DMMC § 1.02.140;
(b)
A legal description and common location description of the property;
(c)
A description of the proposed action;
(d)
A statement that any person may appear or be heard and that written comments will be accepted and made part of the record;
(e)
A statement that the hearing will be held pursuant to the rules of procedure of the Hearing Examiner; and
(f)
The name, address, and office telephone number of the person within the Planning, Building and Public Works Department or other City department from whom additional information may be obtained.
(5)
Persons Entitled to Notice.
(a)
The Planning, Building and Public Works Department shall cause written public notice to be mailed to all owners of record of property located within 300 feet, exclusive of public rights-of-way, of the property that is the subject of the application, including any property that is contiguous and under the same or common ownership and control.
(b)
The Planning, Building and Public Works Department shall cause written public notice to be mailed to:
(6)
Notice of Hearing – When Given. Notices of hearings required under this chapter shall be mailed or posted at least 15 days prior to the scheduled hearing date.
(7)
Unless an open record public hearing is required, public notice of a land use action is not required for a Type I land use action or an action categorically exempt under chapter 16.05 DMMC.
(8)
The notice of proposed land use action shall indicate that a 15-day public comment period is provided.
(9)
Written comment in response to a notice of proposed land use action shall be provided to the Planning, Building and Public Works Department during the 15-day public comment period.
(Ord. 1591 § 63, 2014)
(1)
The Planning, Building and Public Works Department shall coordinate and assemble the comments and remarks of other City departments and make a written report on all applications.
(2)
The report of the Planning, Building and Public Works Department generally contains a description of the proposed use, a summary of applicable zoning and plan requirements and policies, other applicable requirements and policies, recommended findings and conclusions relating to the proposed use, a recommendation, and proposed conditions if the recommendation is for approval.
(3)
Where a hearing is required, at least seven days prior to the scheduled hearing, the department shall file its report with the hearing body and cause a copy to be mailed to the applicant or the applicant's representative. A copy of the report will be made available to any other person if the request for the copy is made at least 24 hours prior to the scheduled hearing.
(4)
If a report is not available as provided in this section, the hearing body may reschedule or continue the hearing upon his or her own motion or upon the motion of a party, or the hearing body may decide the matter without the report.
(5)
Staff reports shall be consistent with RCW 36.70B.060(5).
(Ord. 1591 § 64, 2014)
Any person or persons aggrieved by any administrative decision, made under a provision of this code which expressly provides that such administrative decision is subject to review by the Hearing Examiner, may seek review of such decision by the Hearing Examiner by filing with the City Clerk a written notice of appeal of an administrative decision within 10 days of the decision that is being challenged. The City Clerk may reject or dismiss any appeal sought to be filed by a person not given the right to appeal under this code, or any incomplete appeal. An appeal will be considered incomplete if it fails to satisfy the requirements set forth above or if it does not provide at least the following:
(1)
Applicable filing fee, a schedule of which is available by contacting the City Clerk;
(2)
The appellant's name, address, telephone number and fax line, and other information which would facilitate prompt communications with the appellant;
(3)
A copy of the administrative decision that is the subject of the appeal;
(4)
A detailed statement identifying specifically the error of fact, law or procedure made by the administrative decision maker, and the effect(s) of the alleged error(s) on the decision that is the subject of the appeal; and
(5)
A statement of the redress sought by the appellant.
The administrative decision appealed shall be given substantial weight by the Hearing Examiner. On any such appeal, the standard of review shall be whether the administrative decision was clearly erroneous based on a review of all evidence, or the administrative decision was arbitrary or capricious. Failure of a party to request review by the Hearing Examiner of an administrative decision shall be a bar to any further judicial review.
(Ord. 1591 § 66, 2014)
A notice of application is required for a Type II action.
(1)
Upon conclusion of the 15-day public comment period, the Planning, Building and Public Works Director may approve, approve with conditions, or deny a Type II land use action subject to applicable public notice and appeal provisions.
(2)
The Planning, Building and Public Works Director's decision regarding a Type II land use action shall be effective on the date issued.
(Ord. 1591 § 67, 2014)
A notice of application is required for a Type III action.
(1)
Upon conclusion of the 15-day comment period and any applicable SEPA appeal period, the Hearing Examiner in an open record public quasi-judicial hearing may approve, approve with conditions, or deny a Type III land use action as specified by chapter 18.240 DMMC, Hearing Examiner.
(2)
The Hearing Examiner's decision regarding a Type III land use action, other than an action for abatement of a public nuisance pursuant to DMMC § 18.15.110, is appealable to the Superior Court of Washington for King County as specified by chapter 18.240 DMMC (appeals from decision of Hearing Examiner).
(Ord. 1591 § 68, 2014)
(1)
For all Type IV land use actions except matters governed by chapter 16.05 DMMC, chapter 16.20 DMMC, and zoning map amendments that require a Comprehensive Plan Amendment, the Planning Commission shall conduct a public hearing for the review of the proposed land use action. The Planning Commission may recommend approval, approval with conditions or amendments, or denial of a Type IV land use action. The recommendation(s) of the Planning Commission shall be forwarded to the City Council. Hearings not delegated to the Planning Commission shall be conducted by the City Council or as otherwise directed by motion of the City Council.
(Ord. 1591 § 69, 2014; Ord. 1737 § 4, 2020; Ord. 1838, 12/11/2025)
(1)
The City Council may approve with conditions or deny a Type V land use action without public notice other than the notice requirements for public meetings.
(2)
The decision of the City Council shall be effective on the date final action is taken during a public meeting if no other effective date is identified in the City Council action or as otherwise provided by law.
(Ord. 1591 § 70, 2014; Ord. 1737 § 5, 2020)
(1)
For all Type VI land use actions except textual code amendments for DMMC Titles 12, 14, and 16, adoption or amendment of the Comprehensive Plan, and area-wide rezones that require Comprehensive Plan amendment, the Planning Commission shall conduct a public hearing for the review of the proposed land use action. The Planning Commission may recommend approval, approval with conditions, or denial of a Type VI land use action. The recommendation(s) of the Planning Commission shall be forwarded to the City Council. Hearings not delegated to the Planning Commission shall be conducted by the City Council or as otherwise directed by motion of the City Council.
(2)
For textual code amendments, the Director may schedule a public hearing before the Planning Commission as provided in DMMC § 18.30.100.
(3)
Upon conclusion of the 15-day comment period, the City Council may approve, approve with conditions, or deny a Type VI land use action upon compliance with the procedural requirements of chapter 18.30 DMMC, Amendments to the Zoning Code, Map and Planned Unit Developments.
(4)
Except for matters subject to review by the Central Puget Sound Growth Management Hearings Board as provided by RCW 36.70A.280, as presently constituted or as may be subsequently amended, the City Council's decision regarding a Type VI land use action is appealable to the Superior Court of Washington for King County as specified by DMMC § 18.20.290 (Appeal from decision of the City Council).
(Ord. 1591 § 71, 2014; Ord. 1737 § 6, 2020; Ord. 1838, 12/11/2025)
A written report of the decisions identified above shall be provided as required by RCW 36.70B.060 and 36.70B.130.
(Ord. 1591 § 72, 2014)
(2)
Written information received from the public or other agencies shall be admitted to the record during the time between the publication of the applicable public notice, and the closing of the open record public hearing by the presiding officer of the City Council or Planning Commission hearing.
(3)
Oral testimony from the public or other agencies shall be admitted to the record during the time between the opening and closing of the open record public hearing by the presiding officer of the City Council or Planning Commission hearing.
(4)
Upon the closing of the open record public hearing by the presiding officer of the City Council or Planning Commission hearing, no additional written information or oral testimony from the public or other agencies will be accepted or considered.
(Ord. 1591 § 73, 2014; Ord. 1838, 12/11/2025)
(2)
Closed record public hearing shall be conditional as required by RCW 36.70B.020, 36.70B.060, 36.70B.110, 36.70B.120 and 43.21C.070 and all other applicable laws.
(3)
Except as specified by procedures for reconsideration or remand, no new evidence or testimony shall be given or received during a closed record appeal hearing. However, the parties to the appeal may submit written statements limited to the issue(s) appealed.
(Ord. 1591 § 74, 2014)
A party to a public hearing or closed record appeal may seek reconsideration of a final decision. Requests for reconsideration shall be submitted and considered as specified by DMMC § 18.240.240 (Hearing Examiner decision) and 18.240.250 (City Council decision).
(Ord. 1591 § 75, 2014)
When written notice of a final decision is required, such notice shall be provided as specified by RCW 36.70B.060, 36.70B.090, and 36.70B.130.
(Ord. 1591 § 76, 2014)
(1)
The City Council, in a closed record hearing, may affirm, reverse, modify, or remand the decision of the Hearing Examiner. The City Council may adopt all or portions of the Hearing Examiner's findings and conclusions. No new testimony shall be taken or new evidence accepted by the City Council, except as provided for de novo consideration of a matter as authorized by subsection (3) of this section. The decision of the City Council shall be in writing in the City Council minutes and shall contain modified or amended findings and conclusions wherever such findings or conclusions are different from those of the appealed decision. Each material finding shall be supported by evidence in the record. The burden of proof with regard to modification or reversal of the decision of the Examiner shall rest with the appellant. The decision of the Hearing Examiner is to be given substantial weight by the City Council.
(2)
The procedure on appeal to the City Council shall be as follows: The presiding officer shall at the onset establish time limitations for oral argument by the appellant and opponent to the appeal; provided, that the appellant may reserve a portion of its time for rebuttal; and provided further, that such time limitations shall not be less than 10 minutes per side. Such oral argument shall be confined to the record and to any alleged errors therein or to any allegation of irregularities in procedure before the Hearing Examiner. If the City Council finds that:
(a)
There has been substantial error; or
(b)
The proceedings were materially affected by irregularities in procedure; or
(c)
The Hearing Examiner's decision was unsupported by material and substantial evidence in view of the entire record as submitted; or
(d)
The Hearing Examiner's decision is in conflict with the City's Comprehensive Plan; or
(e)
Insufficient evidence was presented as to the impact of the land use action on the surrounding area; or
(f)
The appellant is seeking to enter information that was not previously available for reasons beyond the control of that party and that such information is more likely than not to affect the outcome;
it may remand the matter for reconsideration before the Hearing Examiner, or reject or modify the Hearing Examiner's decision; provided, any rejection or modification of the Hearing Examiner's decision shall be in the form of written findings and conclusions by Council which are supported by evidence in the record.
(3)
For a Hearing Examiner decision that is not related to a proposed land use action, the City Council may reject the Hearing Examiner's decision and set a public hearing for a date certain at which time the City Council will consider the application de novo, or for any reason listed in subsection (2)(a), (b), (c), or (f) of this section it may choose to modify the Hearing Examiner's decision; provided, any such modification shall be in the form of written findings and conclusions by Council which are supported by evidence in the record.
(4)
Affirmance. If the City Council finds neither a procedural nor a factual basis for the appeal and concludes that there has been no substantial error in the Hearing Examiner's decision, the City Council may adopt the findings of the Hearing Examiner and affirm the decision of the Hearing Examiner.
(5)
Reversal or Remand Modification.
(a)
If the Council remands the decision to the Hearing Examiner, it sets forth in the minutes its reasons and the issues to be considered by the Hearing Examiner on remand.
(b)
Within five days of the date of the Council's written remand order, the Hearing Examiner mails notice of the Council's decision, the date, time, and place of the remand hearing, and the issues to be considered to all parties of record. The Hearing Examiner holds a public hearing, limited to the issues set forth in the Council's order, within 30 days of the date of the remand order.
(c)
If the City Council finds a procedural or a factual basis for the appeal and concludes that there has been a substantial error in the Hearing Examiner's decision, the City Council may adopt new findings and reverse or modify the decision of the Hearing Examiner.
(6)
The participation of the City Attorney or any member of the Legal Department of the City in such appeal shall be limited to that of legal advisor to the City Council.
(Ord. 1591 § 77, 2014)
If the decision of the City Council requires adoption of an ordinance, the decision of the City Council shall be considered final on the effective date of the ordinance. Otherwise, the decision of the City Council shall be considered final as of the date upon which the City Council casts its vote to affirm, modify, or reverse the Hearing Examiner. The action of the City Council, approving, modifying, or reversing a decision of the examiner, shall be final and conclusive, unless an aggrieved party, who was a party of record in the hearing before the Examiner and City Council, files a land use petition in the Superior Court of Washington for King County as specified by chapter 36.70C RCW. (However, appeals from City Council decisions on shoreline substantial development permits shall be taken to the Shoreline Hearings Board pursuant to the provisions of chapter 90.58 RCW.) For purposes of the land use petition proceedings, the petitioner shall be responsible for transcribing the record and bear the costs of the transcription.
(Ord. 1591 § 78, 2014)
The fee for appeals made pursuant to this chapter, excluding DMMC § 18.20.280, shall be set by administrative order of the City Manager or the City Manager's designee and shall be payable in advance, provided: (1) the City Manager or the City Manager's designee shall waive such fees upon a finding of indigence according to standards adopted by the Des Moines Municipal Court, and (2) the decision-making body shall have discretion and jurisdiction to direct that any fees paid shall be refunded to a prevailing appellant upon a finding of just cause.
(Ord. 1591 § 79, 2014)
The Hearing Examiner shall conduct public hearings in accordance with the provisions of chapter 18.240 DMMC, Hearing Examiner.
(Ord. 1591 § 80, 2014)
Upon final action in denying an application or petition for an action permitted by the zoning code or upon the verbal or written withdrawal of an application or petition following convening of a public hearing, the Planning, Building and Public Works Department shall not accept further filing of an application for substantially the same property involving substantially the same use within six months from the date of final action or withdrawal.
(Ord. 1591 § 81, 2014)
The City shall cause to be kept a brief minute record of the proceeding. Such record, applications filed pursuant to this Title, the written order or motion showing the action and the reasons therefor and the evidence of notice, and other material shall become a part of the records of the City to which application is made. Provisions for custody of such additional records or minutes may be adopted by the City.
(Ord. 1591 § 82, 2014)
If, for any reason, testimony on any matter set for public hearing, or being heard, cannot be completed on the date set for such hearing, the person presiding at such public hearing or meeting may, before adjournment or recess of such matters under consideration, publicly announce the time and place to, and at which, the hearing or meeting will be continued and no further notice is required.
(Ord. 1591 § 83, 2014)
An application or petition for an action permitted by the zoning code that is withdrawn verbally or in writing is subject to the following provisions:
(1)
If a verbal or written withdrawal request is made prior to the convening of a public hearing, the withdrawal is permitted as a matter of right and the limitation on refiling of the application or petition as provided in DMMC § 18.20.320 is inapplicable.
(2)
If a verbal or written withdrawal request is made after the convening of a public hearing, the applicant is prohibited from further filing of an application for substantially the same property involving substantially the same use for a period of six months from the date of withdrawal.
(3)
The Planning, Building and Public Works Director may authorize a full or partial refund of application or petition fees. The amount of the refund is reduced in proportion to the costs incurred by the City up to and including the date a refund claim is made.
(4)
A full refund of fees is granted only when the withdrawal is caused by an error or omission on the part of the City.
(5)
A person claiming a refund must submit a statement in writing to the Planning, Building and Public Works Director giving the basis for the refund claim. Such statement shall be made within 10 days of the acceptance of the withdrawal.
(Ord. 1591 § 84, 2014)