17.02.195 Appeals (WAC 173-806-170).
A. The city establishes the following administrative appeal procedures under RCW 43.21C.075 (as amended by Chapter 347, Laws of 1995 (ESHB 1724)), WAC 197-11-680 and RCW 43.21C.060. These administrative appeal procedures supersede procedures for administrative appeals provided for in Chapter 1.35 LMC.
1. Any agency or person may appeal the city’s procedural compliance with Chapter 197-11 WAC for issuance of the following:
a. Determination of nonsignificance;
b. Mitigated determination of nonsignificance;
c. Adequacy of an FEIS.
2. A determination of significance (DS) shall not be subject to appeal.
3. Appeals, with the appeal fee established in Chapter 3.104 LMC, must be filed within the following timelines:
a. An appeal of a determination of nonsignificance (DNS) or mitigated DNS must be filed in writing with the development and business services department within 14 calendar days of the date that the DNS or mitigated DNS becomes final.
b. Appeals of a final EIS must be filed in writing with the development and business services department within 14 days of the issuance of the final EIS by the city.
4. The appeal of a determination under SEPA shall be considered with the decision on the underlying governmental action in the following manner:
a. If the initial decision on the underlying governmental action is made by the hearing examiner (e.g., conditional use permit), the SEPA appeal shall be heard by the hearing examiner at the same time as the public hearing on the underlying action. The hearing examiner shall render a decision on both the SEPA appeal and the underlying action.
b. If the initial decision on the underlying governmental action is made by a city employee or official with a right of appeal to the hearing examiner, the SEPA appeal shall be heard by the examiner at the same time as the hearing on the appeal of the underlying action, if the underlying action is appealed. The hearing examiner shall render a decision on both appeals. In cases where the underlying action is not appealed, the hearing examiner shall conduct a public hearing and render the decision on the SEPA appeal.
c. If the initial decision on the underlying governmental action is made by the city council after a public hearing, the SEPA appeal shall be heard and decided by the city council at the same time.
d. If the proposal is a nonproject action (i.e., legislative or other actions not meeting the definition of a project permit pursuant to LMC 1.35.005, Project permit – Definition), then the hearing examiner shall render a decision on the SEPA appeal (prior to the planning commission or city council public hearing).
B. If the city is the project proponent of the underlying action or is funding the project, is the SEPA lead agency for the project, and exercises its right to conduct review under SEPA, including any appeals of the city’s procedural determinations under SEPA, before the city submits an application for any project permit for the project or action, the hearing examiner shall hear and render a decision on the SEPA appeal.
C. The decision on a SEPA appeal shall be final, with no additional administrative appeal.
D. As provided in RCW 43.21C.075(3)(d), the environmental determination of the responsible official shall be entitled to substantial weight.
E. The appellant shall have the burden of establishing that the environmental determination is clearly erroneous.
F. Only one appeal of an environmental determination made by the responsible official shall be allowed on a proposal. If more than one person files an appeal of an environmental determination on a proposal, such appeals shall be consolidated.
G. The city shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal.
Note: see also LMC 17.02.200(E). (Ord. 3399 § 2 (Exh. A), 2021; Ord. 3256 § 2, 2017; Ord. 2957 § 14, 2012; Ord. 2073 § 1, 1996; Ord. 1451 § 1, 1985; Ord. 1415 § 2, 1984)
Note: see also LMC 17.02.200(E).