A Type III process is a quasi-judicial review and decision made by the hearing examiner. The hearing examiner makes a decision based on a recommendation from staff and, if required, the planning commission will review and provide comments. The hearing examiner considers public testimony received at an open record public hearing. Public notification is provided at the application, public hearing and decision stages of application review. The administrative appeal body is the superior court, except shoreline permits are appealed to the state Shoreline Hearings Board. The purpose of this article is to provide the necessary steps for permit approvals requiring Type III review.
(Ord. 994 § 3, 2020)
(A) 
This article contains the procedures the city will use in processing Type III applications. This process begins with a complete application, followed by notice to the public of the application and a public comment period, during which time an informational meeting may be held. The permit-issuing authority and designated appeal body for each application reviewed as a Type III are indicated in Table 19.04A-I.
(B) 
If required by the State Environmental Policy Act, a threshold determination will be issued by the SEPA responsible official. The threshold determination shall be issued prior to the issuance of staff's recommendation on the application.
(C) 
After notice to the planning commission, if applicable, a public hearing will be held before the city hearing examiner.
(D) 
The decision of the hearing examiner on a Type III application is appealable to the superior court, except shoreline permit appeals are made to the state Shoreline Hearings Board. The hearing examiner action deciding the appeal and approving, approving with modifications, or denying a project is the final city decision on a Type III application. A final appeal may be made to the Snohomish County superior court.
(Ord. 994 § 3, 2020)
(A) 
Notice of application for Type III permits shall be provided within 14 days of the determination of completeness pursuant to GFMC § 19.04A.230, Time frames for review. Notice shall be provided as indicated in subsection (B) of this section. If any open record predecision hearing is required for the requested project permit(s), the notice of application shall be provided at least 15 days prior to the open record hearing.
(B) 
Notice of Application Requirements of Type III Permits.
Type III Action or Permit
Mail
Post
Publish
All Type III Actions and Permits
X
X
X
(C) 
Mailed Notices. Mailings shall be completed pursuant to GFMC § 19.04A.225 with the additional requirements stated below:
(1) 
Additional Notification Requirements for Preliminary Plats.
(a) 
Notice of the filing of a preliminary plat adjacent to or within one mile of the municipal boundaries of a city or town, or which contemplates the use of any city or town utilities, shall be given to the appropriate city or town authorities.
(b) 
Notice of the filing of a preliminary plat of a proposed subdivision located in a city or town and adjoining the municipal boundaries thereof shall be given to the appropriate county officials.
(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 Secretary of Transportation.
(2) 
Additional Notification Requirements for Shoreline Permits. A statement that any person desiring to submit written comments concerning an application, or desiring to receive notification of the final decision concerning the application as expeditiously as possible after issuance of the decision, may submit the comments or requests for decisions to the city within 30 days of the last date the notice is to be published pursuant to this section.
(D) 
Posted Notices. Posted notices shall be completed pursuant to GFMC § 19.04A.225 with the additional requirements stated in subsection (D)(3) of this section:
(1) 
On-Site Posting. At least one public notice board shall be posted on the site on each public right-of-way fronting on the site.
(2) 
Public Posting. A public notice shall also be posted on the notice board at City Hall, the library, and the post office.
(3) 
The following Type III applications are major land use actions: conditional uses, preliminary plats, and shoreline permits.
(E) 
Published Notice. If required, published notice shall be completed pursuant to GFMC § 19.04A.225.
(Ord. 994 § 3, 2020)
(A) 
The notice of application shall provide a minimum comment period of 14 days with the exception for shoreline permits pursuant to subsection (E) of this section. All comments received on the notice of application must be received in the city clerk department by 4:00 p.m. on the last day of the comment period. Comments may be mailed, emailed, personally delivered, or sent by facsimile. Staff recommendation on a Type III application shall not be issued prior to the expiration of the minimum comment period.
(B) 
Comments should be submitted to staff as early in the review of an application as possible and should be as specific as possible.
(C) 
If the early SEPA review is requested, as described in GFMC § 19.07.010(L)(2), the notice of application and DNS comment periods shall be combined. When a final DNS is issued, there is no additional comment period.
(D) 
Staff may accept and respond to public comments at any time prior to the closing of the public hearing record.
(E) 
Shoreline Permits. The minimum comment period on the notice of application for a shoreline conditional use permit or shoreline variance shall be 30 days.
(Ord. 994 § 3, 2020)
A public meeting may be required for Type III applications before the planning commission. Staff may require the applicant to participate in the meeting to inform citizens about the proposal. If a public meeting is planned, it shall be held as early in the review process as possible for Type III applications. Notice of the public meeting shall be provided in the same manner as required for the notice of application. The public meeting notice will be combined with the notice of application whenever possible.
(Ord. 994 § 3, 2020)
A written report from staff making a recommendation to the hearing examiner for approval, approval with conditions, or with modifications, or for denial shall be prepared. The staff recommendation shall be based on the applicable decision criteria and may include any conditions necessary to ensure consistency with city development regulations.
(Ord. 994 § 3, 2020)
(A) 
Public notice of the date of the hearing examiner public hearing for the application shall be published in a newspaper of general circulation. The public notice shall also include a notice of availability of the staff recommendation. If a determination of significance was issued by the SEPA responsible official, the notice of staff recommendation shall state whether an EIS or supplemental EIS was prepared or whether existing environmental documents were adopted. The public hearing shall be scheduled no sooner than 10 days following the date of publication of the notice.
(B) 
The city clerk shall mail notice of the public hearing and the availability of the recommendation to each owner of real property within 300 feet of the project site.
(C) 
The city clerk shall mail or email notice of the availability of the recommendation and the date of the public hearing to each person who submitted oral or written comments during the public comment period or at any time prior to the publication of the notice of recommendation.
(D) 
The city clerk shall post the notice of the date of the public hearing and the availability of the recommendation on site and at City Hall, the library, and the post office. The designated official shall establish standards for size, color, layout, design, wording and placement of the notice boards.
(E) 
All public hearings on residential developments shall be held in the evening.
(Ord. 994 § 3, 2020)
(A) 
Any person may participate in the hearing examiner public hearing by submitting written comments to staff prior to the hearing or by submitting written comments or making oral comments at the hearing. Also, any party may be represented by agent or attorney.
(B) 
The department shall transmit to the hearing examiner a copy of the department file on the application, including all written comments received prior to the hearing and information reviewed by or relied upon by staff. The file shall also include information to verify that the requirements for notice to the public (notice of application and notice of SEPA threshold determination) have been met.
(C) 
The department shall create a complete record of the public hearing, including all exhibits introduced at the hearing and an electronic sound recording of each hearing.
(Ord. 994 § 3, 2020)
(A) 
The hearing examiner shall approve a project or approve with modifications if the applicant has demonstrated that the proposal complies with the applicable decision criteria of this code. The applicant carries the burden of proof and must demonstrate that a preponderance of the evidence supports the conclusion that the application merits approval or approval with modifications. In all other cases, the hearing examiner shall deny the application.
(B) 
If the hearing examiner requires a modification which results in a different proposal not reasonably foreseeable from the description of the proposal contained in the public notice provided pursuant to GFMC § 19.04B.340, the hearing examiner shall conduct a new hearing on the modified proposal.
(C) 
The hearing examiner may include conditions to ensure a proposal conforms to the relevant decision criteria.
(D) 
The hearing examiner shall within 15 calendar days following the close of the record distribute a written report supporting the decision. The report shall contain the following:
(1) 
The decision of the hearing examiner;
(2) 
Any conditions included as part of the decision;
(3) 
Findings of fact upon which the decision, including any conditions, was based and the conclusions derived from those facts; and
(4) 
A statement explaining the process to appeal the decision of the hearing examiner to the superior court.
(E) 
Reconsideration Period. Any person who presented or commented at the hearing may file a written request with the hearing examiner for reconsideration within 10 business days of the date the hearing examiner's decision is issued. The request shall explicitly set forth alleged errors of procedure or fact. The hearing examiner shall act within 14 days of the close of the reconsideration period by denying the request, issuing a revised decision, or calling for an additional public hearing, or providing parties of record and revision city departments 14 days in which to submit written comments on timely filed requests for reconsideration. If the hearing examiner calls for written comments, the examiner shall take one of the other three actions within 14 days of the close of the comment period.
(1) 
The grounds for reconsideration shall be limited to the following:
(a) 
The hearing examiner exceeded his or her jurisdiction;
(b) 
The hearing examiner failed to follow the applicable procedure in reaching his or her decision;
(c) 
The hearing examiner committed an error of law or misinterpreted the applicable city regulation, ordinance or other state law or regulation;
(d) 
The hearing examiner's findings, conclusions and/or conditions are not supported by the record; and/or
(e) 
Newly discovered evidence alleged to be material to the hearing examiner's decision which could not reasonably have been produced prior to the hearing examiner's decision.
(2) 
Requests for reconsideration may use the additional grounds that changes to the application proposed by the applicant are in response to deficiencies identified in the decision.
(3) 
The hearing examiner's actions following reconsideration are not subject to further requests for reconsideration.
(Ord. 994 § 3, 2020)
Within five days of the conclusion of the appeal period or the resolution of a filed appeal, the designated official shall mail or email the notice of final decision and any changes to the SEPA threshold determination, if any, to all parties of record, which shall include the applicant and each person who participated in the public hearing or who submitted comments during the public comment period at any time prior to issuance of the decision. For shoreline permits, the designated official shall notify the following persons in writing of its final approval or disapproval of a shoreline conditional use permit or shoreline variance:
(A) 
The applicant.
(B) 
The Department of Ecology.
(C) 
Any person who has submitted written comments on the application.
(D) 
Any person who has written to the hearing examiner requesting notification.
(Ord. 994 § 3, 2020)
Except as otherwise provided herein, approval of a Type III application shall expire two years from the date approval was final unless significant action proposed in the application has been physically commenced and remains in progress pursuant to GFMC § 19.04A.250. Preliminary plats shall terminate pursuant to GFMC § 19.04A.250(D). Shoreline conditional use permits and shoreline variance permits expire two years from final approval.
(Ord. 994 § 3, 2020)
(A) 
Except for shoreline conditional use or shoreline variance, which is appealed to the Shoreline Hearings Board as per subsection (B) of this section, a Type III decision of the hearing examiner may be appealed to Snohomish County superior court by filing a land use petition which meets the requirements set forth in Chapter 36.70C RCW. The petition must be filed and served upon all necessary parties, as set forth in state law and within the 21-day time period as set forth in RCW 36.70C.040. The appeal period shall commence upon the hearing examiner's final decision and not upon expiration of the reconsideration period.
(B) 
Shoreline Permit Appeals. An appeal of a shoreline conditional use permit or shoreline variance shall be to the state Shoreline Hearings Board and shall be filed within 21 days of the receipt of the city's decision by the Department of Ecology, as set forth in RCW 90.58.180.
(Ord. 994 § 3, 2020)
An appeal stays all actions by the designated official seeking enforcement of or compliance with the order or decision appealed from, unless the designated official finds that a stay would, in his or her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed except by order of the hearing examiner or a court.
(Ord. 994 § 3, 2020)