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A. Governing regulations. It is the purpose of this Chapter to combine environmental considerations with public decisions, and for this reason, any appeal brought under this Chapter shall be linked to a specific governmental action. Appeals under this Chapter are not intended to create a cause of action unrelated to a specific governmental action.

B. Formal elimination of appellate procedures. The appellate procedures provided for by 43.21C.060 RCW, which provides for an appeal to a local legislative body of any decision by a nonelected official conditioning or denying a proposal under authority of SEPA, are formally eliminated. The administrative appeal procedures provided by this part shall be construed consistently with 43.21.075 RCW, Chapter 36.70B RCW, and 197-11-680 WAC.

C. Relevant determinations. Appeals under the provisions of this part shall be limited solely to those actions and/or determinations listed below. No administrative appeals shall be allowed for other actions and/or determinations taken or made pursuant to this Chapter (such as lead agency determination, a determination that a proposal is categorically exempt, scoping, draft EIS adequacy, etc.).

1. Procedural Appeals which shall consist of an appeal of the responsible official’s compliance with the provisions of SEPA, the SEPA rules, and this Chapter with respect to the following:

a. Determination of nonsignificance;

b. Determination of significance;

c. Adoption or issuance of a Final Environmental Impact Statement.

2. Substantive Appeals which shall consist of an appeal of any nonelected official’s or tribunal’s action or omission with respect to the conditioning or denying of a proposal under the substantive authority set forth in Section 20.790.710 VMC.

D. Consolidation of appeals. Except as provided in Subsection (E) of this Section, an appeal under this Section shall consolidate any available SEPA appeal with a hearing or appeal on the underlying governmental action in a single simultaneous hearing before one hearing officer or body. The hearing or appeal shall be one at which the hearing officer or body will consider either the agency’s decision or a recommendation on the proposed underlying governmental action. If no hearing or appeal on the underlying governmental action is otherwise provided, then no SEPA appeal is allowed under this Section, except as allowed under Subsection (E) of this Section.

E. When consolidation is not required. The following appeals of SEPA procedural or substantive determinations need not be consolidated with a hearing or appeal on the underlying governmental action:

1. An appeal of a determination of significance;

2. An appeal of a procedural determination made by an agency when the agency is a project proponent, or is funding a project, and chooses to conduct its review under this Chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;

3. An appeal of a procedural determination made by an agency on a nonproject action.

F. Filing requirements. All procedural and substantive SEPA appeals provided under this Section shall be initiated by filing a written notice of SEPA administrative appeal with the Planning Official, accompanied with the applicable appeal fee; provided, that no additional appellate fee shall be charged in conjunction with an available hearing on the underlying permit or approval.

1. The notice of appeal required by this Section shall include, at a minimum:

a. The name and address of the party or agency filing the appeal;

b. An identification of the specific proposal and specific SEPA actions, omissions, conditions or determinations for which appeal is sought;

c. A statement of the particular grounds or reasons for the appeal.

2. The Planning Official shall arrange to conduct the SEPA appeal in conjunction with a hearing or appeal on the underlying permit or approval, where required to consolidate the SEPA appeal with a hearing on the underlying governmental action. Where consolidation is not required, the Planning Official shall schedule the hearing to be conducted within 90 days of the date of filing the notice of appeal.

a. SEPA procedural appeals shall be initiated and conducted in the manner set forth below:

1. An appeal to the issuance of a DNS), MDNS or FEIS may be filed by any agency or aggrieved person as follows:

a. For proposals which may be approved by an administrative official without public hearing, an appeal shall be filed within 14 days after notice that the determination has been made has been issued. Such SEPA appeal shall be heard in conjunction with the appeal of the underlying permit or approval, where such appeal is allowed; provided, that if no administrative appeal of the underlying permit or approval is otherwise provided for, and consolidation is not required by Subsection (D) above, an appeal of the DNS/FEIS shall be heard and decided in an open record hearing by the Hearings Examiner appointed in Chapter 20.290 VMC, Review Bodies. The decision of the hearing examiner on the SEPA procedural appeal shall be final and not subject to further administrative appeal.

b. For proposals which may only be approved by open-record hearing or open-record pre-decision hearing recommendation before the Hearings Examiner or Planning Commission, an appeal shall be filed within 14 calendar days following the last day of any comment period required to be provided by this Chapter, or where no comment period is required, then within fourteen (14) days following the date of issuance or adoption of the DNS/FEIS, and shall be heard and decided in the open-record hearing by the Hearings Examiner or Planning Commission in conjunction with the decision or recommendation on the underlying proposal. The decision of the hearing examiner or planning commission on the SEPA procedural appeal shall be final and not subject to further administrative appeal.

c. An appeal to a DS may be filed by the proposal applicant or sponsor within 14 days of the issuance of the DS/scoping notice. The appeal shall be heard in an open-record hearing and decided by a Hearings Examiner appointed pursuant to Chapter 20.290 VMC, Review Bodies, whose decision shall be final and not subject to further administrative appeal.

d. The SEPA procedural determination of the responsible official shall be entitled to substantial weight, and the appellant shall bear the burden to establish a violation of SEPA, the SEPA rules, or the provisions of this Chapter.

e. A SEPA procedural determination shall be deemed to be conclusively in compliance with SEPA, the SEPA rules, and the provisions of this Chapter, unless a SEPA procedural appeal is filed in accordance with this part.

f. Where the Hearing Examiner or Planning Commission determines that the procedural determination is in violation of SEPA, the SEPA rules, or the provisions of this Chapter, the Hearing Examiner or Planning Commission may remand the procedural SEPA determination to the responsible official and, in such event, shall continue the open record hearing or open record pre-decision hearing until such time as a new or modified SEPA procedural determination is issued under the provisions of this Chapter. The decision of the Hearing Examiner or Planning Commission to remand the SEPA procedural determination shall be a final administrative decision not subject to further administrative appeal. Where applicable, such remand shall toll any period for project permit approval required by Chapter 36.70B RCW or other statutes, or otherwise required by other provisions of this code.

b. SEPA substantive appeals shall be initiated and conducted in the manner set forth below:

1. For proposals subject to final administrative action, approval, or recommendation by a nonelected administrative official or tribunal for which no administrative appeal is otherwise provided, and for which consolidation is not required by Subsection (D) of this Section, any agency or aggrieved person may file a substantive SEPA appeal within 14 days of the issuance of the administrative decision approving, conditioning, or denying the proposal on the basis of substantive SEPA authority. Such substantive SEPA appeal shall be heard and decided by the Hearings Examiner appointed in Chapter 2.51 RCW in an open record hearing, unless the proposal is a project permit which has been subject to a previous open record hearing, in which case the SEPA appeal hearing shall be a closed-record hearing. The substantive SEPA appeal shall be heard in conjunction with any procedural SEPA appeal. The decision of the Hearing Examiner on the SEPA substantive appeal shall be final and not be subject to further administrative appeal.

2. For all proposals subject to final administrative action, approval or recommendation, by a nonelected administrative official or tribunal, for which an administrative appeal or further approval hearing is otherwise provided or required, any agency or aggrieved person may file a substantive SEPA appeal within 14 days of the issuance of the administrative decision approving, conditioning or denying the proposal on the basis of substantive SEPA authority; provided, that if the proposal is a project permit, as defined in Part 20.790.700 VMC of this Chapter, a substantive SEPA appeal shall be filed within 14 days after issuance of any notice of decision under Chapter 20.210 VMC, Decision-Making Procedures. Any substantive SEPA appeal shall be conducted in the same manner and with the same process as otherwise provided for the appeal or approval hearing of the underlying administrative action.

3. The SEPA substantive determination to condition or deny a proposal shall be deemed to be conclusively in compliance with SEPA, the SEPA rules, and the provisions of this Chapter, unless a SEPA substantive appeal is filed in accordance with this Part.

c. For any appeal under this Subsection, the City shall provide for a record that shall consist of the following:

1. Findings and conclusions;

2. Testimony under oath; and

3. A taped or written transcript.

G. Judicial appeal.

1. Any available administrative appeal provided under this Section must be utilized by an agency or aggrieved person prior to initiating judicial review of any SEPA action, omission or determination made or taken under this Chapter.

2. A judicial appeal of any SEPA action, omission or determination made or taken under this Chapter must be filed within the time limitations established by any statute or ordinance for appeal of the underlying governmental action.

3. The City shall give official notice of the date and place for commencing a judicial appeal, in accordance with 197-11-680(5) WAC, where there is a statute or ordinance establishing a time limit for commencing judicial appeal. (Ord. M-3643, 2004)