PLANNING COMMISSION REGULAR MEETING AGENDA

PLANNING COMMISSION REGULAR MEETING AGENDA Wednesday, February 15, 2017 Mercer Island City Hall CALL TO ORDER & ROLL CALL 6:00 PM APPEARANCES This is the time set aside for members of the public to speak to the Commission about issues of concern. If you wish to speak, please consider the following points: Speak audibly into the podium microphone State your name and address for the record Limit your comments to three minutes The Commission may limit the number of speakers and modify the time allotted. Total time for appearances: 15 minutes PLANNING COMMISSIONERS Bryan Cairns Tiffin Goodman Daniel Hubbell Jennifer Mechem Lucia Pirzio-Biroli Suzanne Skone, Chair Richard Weinman, Vice-Chair PHONE: 206-275-7729 WEB: www.mercergov.org APPROVAL OF MINUTES Minutes from February 1, 2017 REGULAR BUSINESS 6:15 PM Agenda Item #1: ZTR17-001 - Proposed Appeal Code Amendment Introduction of a proposed zoning code text amendment related to the process and procedures for appealing certain permit and land use decisions. OTHER BUSINESS Staff Comments Planned Absences for Future Meetings Announcements & Communications Next Regularly Scheduled Meeting: March 1, 2017 at 7:00PM ADJOURN AGENDA TIMES ARE APPROXIMATE CITY COUNCIL CHAMBERS - MERCER ISLAND CITY HALL 9611 SE 36TH STREET; MERCER ISLAND, WA 98040

PLANNING COMMISSION MEETING MINUTES FEBRUARY 1, 2017 CALL TO ORDER: Vice Chair called the meeting to order at 6:03 PM in the Council Chambers at 9611 SE 36th Street, Mercer Island, Washington. ROLL CALL: Vice-Chair Richard Weinman, Commissioners Daniel Hubbell, Jennifer Mechem, Lucia Pirzio-Biroli, and Tiffin Goodman were present. City staff was represented by Alison Van Gorp, Administrative Services Manager/Ombudsman, and Evan Maxim, Planning Manager, Nicole Gaudette, Senior Planner. Chair Suzann Skone was absent. Commissioner Bryan Cairns arrived at 6:04 p.m. APPROVAL OF MINUTES: The Commission reviewed the minutes from the January 4, 2017 meeting. Commissioner Goodman made a motion to adopt the minutes. The motion was seconded by Commissioner Hubbell. The minutes were approved by a vote of 6-0. The Commission reviewed the minutes from the January 18, 2017 meeting. Commissioner Mechem made a motion to adopt the minutes. The motion was seconded by Commissioner Pirzio-Biroli. The minutes were approved by a vote of 6-0. APPEARANCES: Carolyn Boatsman 3210 74 th Ave SE Comments about past deliberations. Concerned about deleting an impervious surface limit and maximum building coverage allowance. This is important for implementing LID. Place no restriction on the removal of invasive species indicated by the noxious Weed Board. The city pays staff to remove these species. Recommend prohibiting the planting of invasive species. Concerned about the lack of restriction for removing large specimen trees. Mark Coen 3220 27 th Ave SE Would like to echo Carolyn s comments. The neighbor added an impervious area for parking a vehicle after clearing all vegetation from the property. The community meeting in January was a little overwhelming for most people. Difficult concepts for people to understand. Community meetings should be limited to residents. The Commission asked Evan to explain the pervious surface limitations in the code. Evan summarized previous discussions that pertain to lot coverage. REGULAR BUSINESS: Agenda Item #1: Residential Design Standards: Evaluation Forms for Large Lots / Subdivisions and Construction Process Page 1 of 2

Evan Maxim introduced new materials added to the Planning Commissioners binders, and presented an overview of the meeting topic which includes evaluation forms for building design concepts. A 5 minute recess was called at 7:39 p.m. The Commission discussed the evaluation forms and provided the following direction: 1.10.0 Subdivision / short subdivision process: New SFR to meet subdivision design standards -Yes as an option with 1.10.2 1.10.1 Subdivision / short subdivision process: Preliminary plat/sp approval prior to permit issuance Vice-Chair Weinman is opposed to this option. No 1.10.2 Subdivision / short subdivision process: Limit subdivision/short subdivision following new home construction - Yes as an option with 1.10.0 1.11.0 Process: Shorten construction hours Yes. 7:00 am to 7:00 pm M-F and 9:00 am to 6:00 pm Saturday and no work on Sunday s and holidays 1.11.1 Process: Limit permit approval duration to 18 months No, but allow 2 years, 30 day extension, plus one year renewal with a construction schedule and management plan 1.11.2 Process: Large projects: Construction schedule and management plan Needed if applying for the one year extension to allow 3 years for construction. Commissioner Hubbell provided some draft language for driveways into plats. The access to the lots should be the least impactful to the site. A shared access is not always the least impactful. Vice-Chair Weinman asked for this to be considered. OTHER BUSINESS: Alison VanGorp discussed the upcoming community meeting scheduled for February 25 th. She presented optional formats for the meeting. Commissioner Hubbell suggested having more time for public comment. Commissioner Cairns suggested presenting what the current regulations are, why a regulation might change, and what might be proposed. The Commission was concerned about the amount of time scheduled for the presentation. Vice-Chair Weinman asked Alison s opinion about the concerns expressed by Mark Coen during the Appearances portion of the meeting tonight. There was various other discussion amongst the Commission. Roll call for the 2/25 meeting: Commissioner Pirzio-Biroli won t be there, Commissioner Hubbell will be there. The other Commissioners did not comment. Evan Maxim reviewed the proposed meeting schedule through April, 2017. The Commission would like to start the February 15 th meeting at 6:00 pm. They will discuss the code amendment from 6:00 to 7:00. ANNOUNCEMENTS AND COMMUNICATIONS: None. NEXT MEETING: The next Planning Commission meeting is scheduled for February 15, 2017 at 6:00 p.m. at Mercer Island City Hall. ADJOURNMENT: Vice-Chair Weinman adjourned the meeting at 8:29 pm. Page 2 of 2

DEVELOPMENT SERVICES GROUP 9611 SE 36TH ST., MERCER ISLAND, WA 98040 (206) 275-7605 TO: FROM: Planning Commission Scott Greenberg, Development Services Group Director DATE: RE: ZTR17-001 Code Text Amendment--Appeals Staff is seeking initial Planning Commission comments and guidance on a proposed Code Text Amendment related to the process and procedures for appealing certain permit and land use decisions. See Exhibit 1. We will return at a future meeting with a proposed ordinance reflecting the Commission s guidance and will schedule a public hearing on the proposal. The Mercer Island City Code (MICC) allows appeals of decisions for various permits and approvals. The appellate body currently varies depending on the decision being appealed: Building Board of Appeals, Hearing Examiner, Design Commission, Planning Commission, City Council, Superior Court, Shoreline Hearings Board or Growth Management Hearings Board. The primary objective of the proposed amendments is to have most appeals heard and decided by a Hearing Examiner. The basic purpose of having a Hearing Examiner conduct these hearings is to have a professionally trained individual, typically an attorney, make objective quasi-judicial decisions that are supported by an adequate record and that are free from political influences. Using a Hearing Examiner system allows local legislative and advisory bodies that might otherwise conduct these hearings to better concentrate on policymaking. It can also potentially reduce local government liability exposure through what should be more consistent and legally sustainable quasi-judicial decisions. (from the MRSC website) The proposed amendments include the following changes: 1. Eliminates the Building Board of Appeals. 2. Moves appeals under the building and fire codes from the Building Board of Appeals to the Hearing Examiner. 3. Moves appeals of storm water management code decisions and short plat acreage limitation variances from City Council to the Hearing Examiner. 4. Moves appeals of the following decisions from the Planning Commission to the Hearing Examiner: decisions related to critical areas, certain actions under the 1

State Environmental Policy Act (SEPA), tree permits, development code interpretations, preliminary short plats, deviations, 5. Moves appeals of final short plats from the Planning Commission to Superior Court. 6. Consolidates multiple appeals on a project into a single appeal heard by the Hearing Examiner. Page 2 of 2

ELIMINATE BUILDING BOARD OF APPEALS 3.28 Building 3.28.010 Established. There is established a board to be known as the building board of appeals. (Ord. 04C-12 5; added during 1980 codification). 3.28.020 Purpose Function and jurisdiction. A. The board shall hear all appeals from any notice or order issued, or any action taken, by any administrative officer of the city under the provisions of the construction codes set forth in MICC Title 17; MICC 19.09.080, Moving of buildings; and any code or ordinance wherein it is provided that an appeal to the building board of appeals shall be available; and B. The board shall have jurisdiction and advisory authority to determine the suitability of alternate materials or alternate types of construction, if an alternate is contemplated or recognized by the express terms of the codes or ordinances of the city; and C. The board shall have authority to make recommendations to the city council for such new legislation as will expedite or improve the administration of such codes or ordinances; and D. The board shall have no authority to consider or determine any matter arising under the zoning or land use ordinances. (Ord. 04C-12 5; added during 1980 codification). 3.28.030 Membership Term. A. The board shall consist of five voting members, each of whom shall be appointed by the mayor with confirmation by the city council. In addition to the voting members, the city manager may serve, or he may appoint an employee of the city to serve, as an ex officio member without authority to vote. The ex officio member of the board shall serve as secretary of the board. Vacancies occurring in any position on the board shall be filled by appointment of the mayor with confirmation by the city council for the unexpired term. B. The term of each voting member, unless terminated earlier by the appointing authority, shall be for three years, and shall expire on May 31 of the last year of the term or until the member s successor is appointed and qualifies. The year of expiration of the terms of the positions shall be staggered with the following groups of positions expiring two years apart: Positions 1 and 2; and Positions 3, 4, and 5. The ex officio member shall serve at the will of the city manager. (Ord. 03C-06 1; Ord. A-88 1, 1991; added during 1980 codification). 3.28.040 Qualifications of voting members. 1

The voting members shall be appointed on the basis of qualifications, whether obtained through experience and/or training, to pass upon matters pertaining to building construction. (Added during 1980 codification). 3.28.050 Quorum. The majority vote of a quorum shall constitute the official action of the board. The presence of three voting members, having the right to participate in the meeting, shall constitute a quorum with full authority to function as the board. (Added during 1980 codification). 3.28.060 Appeal procedure. A. Any person aggrieved by any notice and order issued by, or any ruling made by, any administrative official of the city under the codes and ordinances designated in MICC 3.28.020 shall have the right to appeal to the board. B. An appeal shall be initiated by filing with the building official of the city a written appeal, within 14 days of the date of the notice and order or other action appealed, on a form to be provided by the city. C. Upon the filing of a written appeal, the building official shall promptly notify the board of such filing and transmit to the board a true copy of the written appeal. (Ord. 96C-003 2; added during 1980 codification). 3.28.070 Board procedures. A. Within 30 days after receiving the written appeal, the secretary shall fix a date, time and place for the hearing of the appeal by the board. B. Written notice of the time and place of the hearing shall be given at least 10 days prior to the date of the hearing to each appellant, except where the appellant has waived said 10-day requirement, either by causing a copy of said notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at his/her address as shown on the written appeal. (Ord. A-102 3, 1991; added during 1980 codification). 3.28.080 Failure to appeal Scope of hearing Stay of order. A. Failure of any person to file in accordance with the provisions of this chapter shall constitute a waiver of his/her right to an administrative hearing and adjudication of the notice and order, or other ruling, or to any portion thereof. 2

B. Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal. C. Except for vacation orders and stop-work orders, enforcement of any notice and order, or other ruling of the building official, issued under a code or ordinance from which appeal to the board is available, shall be stayed during the pendency of an appeal therefrom which is properly and timely filed. (Ord. A-102 3, 1991; added during 1980 codification). 3.28.090 Right of official to seek recommendation. The building official or any other administrative official of the city shall have the right to submit to the board a proposition or question for its consideration and recommendation. It shall be the duty of the board to consider such matter and to make its recommendation in the same manner as is required by this chapter in the hearing of any other matter within its jurisdiction. (Added during 1980 codification). 3.28.100 General provisions and rules. A. Procedures before the board shall be governed by reasonable rules or regulations established by the board. B. The report of the board may also be in the nature of a recommendation to the appellant. (Added during 1980 codification). 3.28.110 Enforcement of orders. Orders of the board may be enforced, work performed and costs recovered as provided by whatever means are available at law or by city ordinance. (Added during 1980 codification). 3.28.120 Decisions of the board Final. Any order of the building code board of appeals shall be final and conclusive unless, within 21 days from the date of the order, the original applicant or an adverse party makes application to the Superior Court of the state for King County. (Ord. 96C-003 2; added during 1980 codification). MODIFY CODE SECTIONS TO HAVE MOST APPEALS HEARD BY HEARING EXAMINER Chapter 3.40 HEARING EXAMINER Sections: 3.40.010 Established. 3.40.020 Purpose Function and jurisdiction. 3

3.40.030 Appointment. 3.40.040 Hearing examiner Conflict of interest and freedom from improper influence. 3.40.010 Established. There is established the office of hearing examiner. (Added during 1980 codification). 3.40.020 Purpose Function and jurisdiction. (1) The hearing examiner will hear and decide upon all applications for variance requests from the provisions of MICC Title 19, Unified Land Development Code, and shoreline management master program (MICC 19.07.080) which are forwarded by the code official, and shall hear and decide upon all appeals as identified in MICC 19.15.010(E). applications and appeals as designated in this code. (2) The examiner s decision may be to grant or deny the application or appeal, or the examiner may grant the application or appeal with such conditions, modifications, and restrictions as the examiner finds necessary to make the application or appeal compatible with the environment and carry out applicable state laws and regulations, including Chapter 43.21C RCW and the regulations, policies, objectives, and goals of the comprehensive plan, the Mercer Island City Code, and other official laws, policies and objectives of the City of Mercer Island. (Ord. 02C-04 6; Ord. 96C-003 3; Ord. A-75 6, 1989; added during 1980 codification). 3.40.030 Appointment and Qualifications. The city manager shall appoint the hearing examiner for an indefinite term. The hearing examiner shall be appointed solely with regard to qualification for the duties of such office and shall have such training or experience as will qualify the examiner to conduct administrative or quasi-judicial hearings on land use regulatory matters. The examiner shall hold no other appointive or elective public office or position in the city government except as provided in this chapter. The examiner shall serve at the pleasure of the city manager. (Added during 1980 codification). 3.40.035 Pro tem examiners. The city manager may appoint qualified persons to serve as hearing examiner pro tempore, as needed, to expeditiously hear pending applications and appeals. 3.40.040 Hearing examiner Conflict of interest and freedom from improper influence. A. The examiner shall not conduct or participate in any hearing or decision in which the examiner has direct or indirect personal interest which might interfere with his or her decision making process. Any actual or potential conflict of interest shall be disclosed to the parties immediately upon discovery of such conflict.the examiner shall not conduct or participate in any hearing or decision in which the examiner has a direct or substantial financial interest. B. No council member, city official, or any other person shall attempt to influence or in any way interfere with the examiner in the performance of his or her designated duties. (Added during 1980 codification). 3.40.050 Dismissal of untimely appeals. On its own motion or on the motion of a party, the examiner shall dismiss an appeal for untimeliness or lack of jurisdiction. 4

3.40.060 Consolidation of hearings. Whenever a project application includes more than one City permit, approval, or determination for which an open, or closed, record hearing before the hearing examiner is required or for which an appeal is otherwise provided, the hearings and any such appeals shall be consolidated into a single proceeding before the hearing examiner. 3.40.070 Prehearing conference. (1) A prehearing conference may be called by the examiner pursuant to this chapter upon the request of a party or on the examiner s own motion. A prehearing conference shall be held in every appeal brought pursuant to this chapter if timely requested by any party. The prehearing conference shall be held at such time as ordered by the examiner, but not less than 14 days prior to the scheduled hearing on not less than seven days notice to those who are then parties of record to the proceeding. The purpose of a prehearing conference shall be to identify, to the extent possible, the facts in dispute, issues, laws, parties, and witnesses in the case. In addition the prehearing conference is intended to establish a timeline for the presentation of the case. (2) Any party who does not attend the prehearing conference, or anyone who becomes a party of record after notice of the prehearing conference has been sent to the parties, shall nevertheless be entitled to present testimony and evidence to the examiner at the hearing. 3.40.080 Hearings. (1) Before rendering a decision on any application or appeal, the examiner shall hold at least one open, or closed, record hearing thereon. (2) The examiner may adopt rules of procedure for conduct of the hearing. (3) Notification of the time and place of the hearing shall be given as provided in the ordinance governing the application. If none is specifically set forth, such notice shall be given as follows: (a) Published and posted notice at least fourteen days prior to scheduled hearing; and (b) Mailed notice to all parties of record at least fourteen days prior to the scheduled hearing. 3.40.090 Examiner findings. When the examiner renders a decision, he or she shall make and enter findings of fact and conclusions from the record that support the decision. Said findings and conclusions shall set forth and demonstrate the manner in which the decision or recommendation is consistent with, carries out, and helps implement applicable state laws and regulations and the regulations, policies, objectives, and goals of the comprehensive plan, the Mercer Island City Code, and other official laws, policies, and objectives of the City of Mercer Island. 3.40.100 Written decision. Within 14 days of the conclusion of a hearing, the examiner shall render a written decision to the City. The examiner s decision shall identify the applicant and/or the owner by name and address, and the project file or permit number, if applicable. 5

Any judicial appeal of the hearing examiner s decision shall be reviewed in King County superior court pursuant to Chapter 36.70C RCW, the Land Use Petition Act ( LUPA ). The land use petition must be filed within twenty-one calendar days of the issuance of the hearing examiner s decision. 3.40.110 Reconsideration of final action. (1) Any final action by the hearing examiner may be reconsidered by the examiner, provided a request for reconsideration by a party of record is received within 10 days of the date a decision by the examiner, if: (a) The action was based in whole or in part on erroneous facts or information; (b) The action when taken failed to comply with existing laws or regulations applicable thereto; or (c) An error of procedure occurred that prevented consideration of the interests of persons directly affected by the action. (2) The examiner shall reconsider a final decision based upon the above criteria. The examiner may issue a corrected decision as the examiner determines it is necessary. The examiner is not required to issue any documentation denying a request for reconsideration. (3) Authority of the examiner to reconsider does not affect the finality of a decision when made. 15.09.090 Storm Water Management Program Appeals Process Any person aggrieved by the decision of the city manager or his/her designee in administering this chapter may appeal the decision to the city council of the city of Mercer Islandhearing examiner. by complying with the procedures set forth in Chapter 2.30 MICC.Appeals shall follow the process described in 19.15.020(J) MICC. (Ord. 09C-09 1; Ord. 95C-118 1. Formerly 15.09.070). 17.07.020 International Fire Code--Amendments and additions. H. IFC Section 108.1 Amended Board of Appeals, Board of Appeals Established. Section 108.1 of the International Fire Code is hereby amended to read as follows: Section 108.1 General. In order tothe hearing examiner shall hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation of the International Fire Code. Appeals shall follow the process described in 17.14.020 MICC., there shall be a building board of appeals as established in MICC Chapter 3.28. I. IFC Section 108.2 Amended Board of Appeals, Limitations on Authority. Section 108.2 of the International Fire Code is hereby amended to read as follows: Section 108.2 Limitations on authority. An application for appeal shall be based on a claim that the true intent of the International Fire Code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of the International Fire Code do not fully apply or an equally good or better form of construction is proposed. The building board of appeals shall have no authority relative to interpretation of the administrative provisions of the International 6

Fire Code nor shall the board be empowered to waive requirements of the International Fire Code which are the codes, appendices and referenced code standards adopted by the jurisdiction.the hearing examiner shall have no authority relative to interpretation of the administrative provisions of the International Fire Code nor shall the hearing examiner have the authority to waive requirements of either this code or of other codes, appendices and referenced code standards adopted by or through this code. 17.14.010 Construction Administrative Code 104.1.1. Liability. The building official, member of the board of appeals or hearing examiner, or employee charged with the enforcement of this code, while acting in good faith and without malice in the discharge of the duties required by this code or other pertinent law or ordinance, shall not thereby be rendered liable personally and is hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or by reason of an act or omission in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by that officer or employee in the lawful discharge of duties while acting in good faith and without malice and under the provisions of this code shall be defended by legal representative of the jurisdiction until the final termination of the proceedings. The building official or subordinate shall not be liable for cost in any action, suit or proceeding that is instituted in pursuance of the provisions of this code. SECTION 113 BOARD OF APPEALS 113.1 General. In order to hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of the construction codes or this administrative code, there shall be a building board of appeals as established in MICC Chapter 3.28. 113.2 Limitations on authority. An application for appeal shall be based on a claim that the true intent of the construction codes or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of the construction codes do not fully apply, or an equally good or better form of construction is proposed. The building board of appeals shall have no authority relative to interpretation of the administrative provisions of the construction codes nor shall the board be empowered to waive requirements of the construction codes which are the codes, appendices and referenced code standards adopted by the jurisdiction. 113.3 Summary of action and authorities. The table below sets forth actions that the city may take under its construction codes, the criteria upon which those decisions are to be based, and which boards or city staff have authority to make the decisions and to hear appeals of those decisions. ACTION DECISION AUTHORITY CRITERIA APPEAL AUTHORITY Building Permit Building official Chapter 17.14 MICC, Section 105 Building board of appeals Grading and Clearing Permit Building official Chapter 17.14 MICC, Section 105 Building board of appeals Construction Code Interpretations Building board of appeals Building official (fire code official for International Fire Chapter 17.14 MICC, Section 104; IFC Section 108 and MICC 7

17.14.020 Appeals Code), IBC Chapter 9 Fire Protection Systems and IRC Appendix Q related to residential fire sprinklers 17.07.020(F), (G), and (H) A. Appeals to hearing examiner. Appeals of orders, decisions and determinations of the building or fire code official that do not constitute enforcement actions shall be heard and decided by the city of Mercer Island hearing examiner. To the extent the codes adopted by reference in this title refer to a board of appeals or a building board of appeals, those references shall be deemed to refer to the city of Mercer Island hearing examiner. B. Limitations on authority. An application for appeal shall be based on a claim that the true intent of this chapter or the technical codes adopted in Title 17 MICC (the technical codes ) or the rules legally adopted thereunder have been incorrectly interpreted, that the provisions of this chapter or the technical codes do not apply or that an equally good or better form of construction, method of protection or safety is proposed. The hearing examiner shall have no authority relative to interpretation of the administrative provisions of this code nor shall the hearing examiner have the authority to waive requirements of either this code or of other codes, appendices and referenced code standards adopted by or through this code. On its own motion or on the motion of a party, the examiner shall dismiss an appeal for lack of jurisdiction or authority. C. Who can appeal, when to appeal and appeal fee. For the purposes of this chapter, appellant shall meanbe defined as the permit applicant or permit property owner. Parties who do not meet the definition of appellant shall not appeal the permit. An appellant shall file a written appeal of the order, decision or determination of the building or fire code official with the City Clerk within fourteen (14) calendar days of the date of the decision of the building or fire code official. An appeal fee established by resolution shall be payable at the time an appeal is submitted. Failure to timely file the appeal or pay the appeal fee shall result in dismissal of the appeal. D. Contents of notice of appeal. At a minimum, the notice of appeal shall contain a clear reference to the matter being appealed, including code citations for the section(s) of code subject to the appeal, and shall include a statement of the specific elements of the building or fire code official s order, decision or determination disputed by the appellant. E. Notice of the appeal hearing. (1) The building official shall prepare a notice of the appeal hearing containing the following: (a) The file number and a brief description of the matter being appealed; 8

(b) A statement of the scope of the appeal including a summary of the elements of the building or fire code official s order, decision or determination that are contested in the appeal; (c) The time and place of the hearing on appeal before the hearing examiner; and (d) A statement of who may participate in the appeal. (2) At least fourteen days before the hearing on the appeal, the building official shall send a copy of the notice of appeal hearing to each person who has appealed the building or fire code official s order, decision or determination. F. Participation in the appeal. Only those parties who have appealed the building or fire code official s order, decision or determination may participate in the appeal. Appellants may participate in either or both of the following ways: (1) By submitting written comments or testimony to the hearing examiner prior to the commencement of the hearing; or (2) By appearing in person, or through a representative, at the hearing. The hearing examiner may reasonably limit the extent of oral testimony or oral argument to facilitate the orderly and timely conduct of the hearing. G. Scope of appeal. The appeal will be an open record appeal hearing. The scope of the appeal is limited to the specific elements of the building or fire code official s order, decision or determination disputed by the appellant and the hearing examiner shall only consider comments, testimony and arguments on these specific elements. H. Record of appeal hearing. The city shall make an electronic sound recording of the hearing. I. Decision on the appeal. The hearing examiner shall consider all information and material within the scope of the appeal submitted by persons entitled to participate in the appeal. Based on the hearing examiner s findings and conclusions, the hearing examiner may affirm, reverse or modify the order, decision or determination being appealed. The hearing examiner shall issue his or her decision within fourteen days of the appeal hearing. Within four business days after it is issued, the hearing examiner s decision shall be sent to the appellant, applicant and to each person who has requested notice of the decision. The decision by the hearing examiner is the final decision of the city. J. Judicial review. Any judicial appeal of the hearing examiner s decision shall be reviewed in King County superior court pursuant to Chapter 36.70C RCW, the Land Use Petition Act ( LUPA ). The land use petition must be filed within twenty-one calendar days of the issuance of the hearing examiner s decision. 9

19.06.080 Siting of group housing. C. Rooming Houses. 2. Appeal. Determinations made by the code official pursuant to subsection C of this section may be appealed pursuant to MICC 19.15.020(LJ). (Ord. 06C-06 2; Ord. 04C-12 15; Ord. 03C- 08 1). 19.07.020 General provisions. B. Public Notice Critical Area Determination. A critical area determination requires public notice pursuant to MICC 19.15.020(E). A decision on a critical area determination may be appealed to the hearing examiner following the appeals process described in 19.15.020(J) MICC.and this action may be appealed to the planning commission. 19.07.040 Review and construction requirements. E. Appeals. Appeals of decisions made under the provisions of this chapter shall follow the procedures outlined in MICC 19.15.010(E) anddescribed in 19.15.020(J) MICC. 19.07.120 Environmental procedures. T. Administrative Appeals. 1. Except for SEPA procedural and substantive decisions related to permits, deviations and variances issued by the code official or hearing examiner under the shoreline management provisions or any legislative actions taken by the city council, the following shall be appealable to the planning commissionhearing examiner under this section: a. The decision to issue a determination of nonsignificance rather than to require an EIS; b. Mitigation measures and conditions that are required as part of a determination of nonsignificance; c. The adequacy of an FEIS or an SEIS; d. Any conditions or denials of the proposed action under the authority of SEPA. 2. How to Appeal. The appeal must be consolidated with any appeal that is filed on the proposal or action, and must conform tocomply with the requirements of MICC 19.15.020(J), Permit Review Procedures. The appeal may also contain whatever supplemental information the appellant wishes to include. 3. For any appeal under this subsection, the city shall provide for a record that shall consist of the following: a. Findings and conclusions; b. Testimony under oath; and c. A taped or written transcript. 10

43. The procedural determination by the city s responsible official shall carry substantial weight in any appeal proceeding. 54. 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. 19.10.100 Trees--Appeals. Any person or persons aggrieved by any action or decision of city staff made pursuant to any section of this chapter, may appeal such action or decision to the planning commissionhearing examiner in accordance with the appeal procedure set forth in MICC 19.15.020(J). (Ord. 02C-01 3). 19.15.010 General Procedures C. Roles and Responsibilities. The roles and responsibilities for carrying out the provisions of the development code are shared by appointed boards and commissions, elected officials and city staff. The authorities of each of these bodies are set forth below. 1. City Council. The city council is responsible for establishing policy and legislation affecting land use within the city. The city council acts on recommendations of the planning commission in legislative and quasi-judicial matters., and serves as the appeal authority on discretionary actions. 2. Planning Commission. The role of the planning commission in administering the development code is governed by Chapter 3.46 MICC. In general, the planning commission is the designated planning agency for the city (see Chapter 35A.63 RCW). The planning commission is responsible for final action on a variety of discretionary permits and makes recommendations to the city council on land use legislation, comprehensive plan amendments and quasi-judicial matters. The planning commission also serves as the appeal authority for some ministerial and administrative actions. 3. Design Commission. The role of the design commission in administering the development code is governed by Chapter 3.34 MICC and MICC 19.15.040. In general, the design commission is responsible for maintaining the city s design standards and action on sign, commercial and multiple-family design applications. 4. Building Board of Appeals. The role of the building board of appeals in administering the construction codes is governed by Chapter 3.28 MICC. In general, the building board of appeals is responsible for hearing appeals of interpretations or application of the construction codes set forth in MICC Title 17. 54. Development Services Group. The responsible officials in the development services group act upon ministerial and administrative permits. a. The code official is responsible for administration, interpretation and enforcement of the development code. b. The building official is responsible for administration and interpretation of the building code, except for the International Fire Code. 11

c. The city engineer is responsible for the administration and interpretation of engineering standards. d. The environmental official is responsible for the administration of the State Environmental Policy Act and shoreline master program. e. The fire code official is responsible for administration and interpretation of the International Fire Code. 65. Hearing Examiner. The role of the hearing examiner in administering the development code is governed by Chapter 3.40 MICC. E. Summary of Actions and Authorities. The following is a nonexclusive list of the actions that the city may take under the development code, the criteria upon which those decisions are to be based, and which boards, commissions, elected officials, or city staff have authority to make the decisions and to hear appeals of those decisions. ACTION DECISION AUTHORITY CRITERIA APPEAL AUTHORITY Ministerial Actions Right-of-Way Permit City engineer Chapter 19.09 MICC Hearing examiner Home Business Permit Code official MICC 19.02.010 Hearing examiner Special Needs Group Housing Safety Determination Police chief MICC 19.06.080(A) Hearing examiner Lot Line Adjustment Permit Revision Code official Chapter 19.08 MICC Hearing examiner Design Review Minor Exterior Modification Outside Town Center Design Review Minor Exterior Modification in Town Center with a Construction Valuation (as defined by MICC 17.14.010) Less Than $100,000 Design Review Minor Exterior Modification in Town Center with a Construction Valuation (as defined by MICC 17.14.010) $100,000 or Greater Code official MICC 19.15.040, Chapters 19.11 and 19.12 MICC Code official Design commission Chapters 19.11 and 19.12 MICC, MICC 19.15.040 Chapters 19.11 and 19.12 MICC, MICC 19.15.040 Design commission Design commission Hearing examiner Final Short Plat Approval Code official Chapter 19.08 MICC Planning commissionsuperior court Seasonal Development Limitation Waiver Building official or city arborist MICC 19.10.030, 19.07.060(D)(4) Building board of appealshearing examiner Development Code Interpretations Code official MICC 19.15.020(L) Planning commissionhearing examiner Shoreline Exemption Code official MICC 19.07.110 and 19.15.020(G)(6)(c)(i) Administrative Actions Hearing examiner 1 Accessory Dwelling Unit Permit Code official MICC 19.02.030 Hearing examiner Preliminary Short Plat Code official Chapter 19.08 MICC Planning commissionhearing Examiner Deviation Code official MICC 19.15.020(G), 19.01.070, 19.02.050(F), 19.02.020(C)(4) and (D)(3) Planning commissionhearing examiner 12

ACTION DECISION AUTHORITY CRITERIA APPEAL AUTHORITY Critical Areas Determination Code official Chapter 19.07 MICC Planning commissionhearing examiner Shoreline Substantial Development Permit Code official MICC 19.07.110 and 19.15.020(G)(6) Shoreline hearings board SEPA Threshold Determination Code official MICC 19.07.120 Planning commissionhearing examiner Short Plat Alteration and Vacations Code official MICC 19.08.010(G) Hearing examiner Long Plat Alteration and Vacations City council via planning commission MICC 19.08.010(F) Superior court Temporary Encampment Code official MICC 19.06.090 Superior court Wireless Communications Facility Code official MICC 19.06.040 Hearing examiner Wireless Communications Facility Height Variance Code official MICC 19.01.070, 19.06.040(H) and 19.15.020(G) Hearing examiner Minimum Parking Requirement Variances for MF, PBZ, C-O, B and P Zones Code official via design commission and city engineer MICC 19.01.070, 19.03.020(B)(4), 19.04.040(B)(9), 19.05.020(B)(9) and 19.15.020(G) Hearing examiner Discretionary Actions Conditional Use Permit Planning commission MICC 19.11.150(B), 19.15.020(G) Hearing examiner Reclassification (Rezone) Design Review Major New Construction Preliminary Long Plat Approval City council via planning commission 2 MICC 19.15.020(G) Design commission MICC 19.15.040, Chapters 19.11 and 19.12 MICC City council via planning commission 2 Chapter 19.08 MICC Superior court Hearing examiner Superior court Final Long Plat Approval City council via code official Chapter 19.08 MICC Superior court Variance Hearing examiner MICC 19.15.020(G), 19.01.070 Superior court Variance from Short Plat Acreage Limitation Critical Areas Reasonable Use Exception Street Vacation Shoreline Conditional Use Permit Shoreline Variance Planning commission MICC 19.08.020 City councilhearing examiner Hearing examiner MICC 19.07.030(B) Superior court City council via planning commission 2 Code official and Department of Ecology 3 Code official and Department of Ecology 3 MICC 19.09.070 MICC 19.15.020(G)(6) MICC 19.15.020(G)(6) Superior court State Shorelines Hearings Board State Shorelines Hearings Board Impervious Surface Variance Hearing examiner MICC 19.02.020(D)(4) Superior court Legislative Actions Code Amendment Comprehensive Plan Amendment City council via planning commission 2 City council via planning commission 2 MICC 19.15.020(G) MICC 19.15.020(G) Growth management hearings board Growth management hearings board 1 Final rulings granting or denying an exemption under MICC 19.15.020(G)(6) are not appealable to the shoreline hearings board (SHB No. 98-60). 2 The original action is by the planning commission which holds a public hearing and makes recommendations to the city council which holds a public meeting and makes the final decision. 13

ACTION DECISION AUTHORITY CRITERIA APPEAL AUTHORITY 3 Must be approved by the city of Mercer Island prior to review by DOE per WAC 173-27-200 and RCW 90.58.140(10). 19.15.020 Permit Review Procedures D. Notice of Application. 1. Within 14 days of the determination of completeness, the city shall issue a notice of application for all administrative, discretionary, and legislative actions listed in MICC 19.15.010(E). E. Public Notice 2. The notice of application shall include the following information: a. The dates of the application, the determination of completeness, and the notice of application; b. The name of the applicant; c. The location and description of the project; d. The requested actions and/or required studies; e. The date, time, and place of the open record hearing, if one has been scheduled; f. Identification of environmental documents, if any; g. A statement of the public comment period, which shall be not less than 14 days nor more than 30 days following the date of notice of application; and a statement of the rights of individuals to comment on the application, receive notice and participate in any hearings, request a copy of the decision once made and any appeal rights; h. The city staff contact and phone number; i. The identification of other permits not included in the application to the extent known by the city; j. A description of those development regulations used in determining consistency of the project with the city s comprehensive plan; and k. Any other information that the city determines appropriate. 3. The public notice shall include the following: a. A general description of the proposed project and the action to be taken by the city; b. A nonlegal description of the property, vicinity map or sketch; c. The time, date and location of any required open record hearing; d. A contact name and number where additional information may be obtained; 14

e. A statement that only those persons who submit written comments or testify at the open record hearing will be parties of record; and only parties of record will receive a notice of the decision and have the right to appeal; and f. A description of the deadline for submitting public comments. J. Appeals. 1. Any party of record on a decision that is appealable may file a letter of appeal on the decision. Appeals shall be filed with the city clerk within 14 days after the notice of decision, if a notice of decision is required, or after other notice that the effective date of the decision subject to appeal if no notice of decision is required has been made and is appealable. 2. Appeals shall include the following information: a. The decision being appealed; b. The name and address of the appellant and his/her interest in the matter; c. The specific reasons why the appellant believes the decision to be wrong. The burden of proof is on the appellant to demonstrate that there has been substantial error, or the proceedings were materially affected by irregularities in procedure, or the decision was unsupported by evidence in the record, or that the decision is in conflict with the standards for review of the particular action; d. The desired outcome or changes to the decision; and e. The appeals fee, if required. 3. Authority for appeals is specified in MICC 19.15.010(E). 4. Public notice of an appeal shall be provided in the manner specified in subsection E of this section. 5. The rules of procedure for appeal hearings shall be as follows: a. For development proposals that have been subject to an open record hearing, the appeal hearing shall be a closed record appeal, based on the record before the decision body, and no new evidence may be presented. b. For development proposals that have not been subject to an open record hearing, the appeal hearing shall be an open record appeal and new information may be presented. c. The total time allowed for oral argument on the appeal shall be equal for the appellants and the applicant (if not the appellants). If there are multiple parties on either side, they may allocate their time between themselves or designate a single spokesperson to represent the side. All testimony shall be given under oath. d. If the hearing body finds that there has been substantial error, or the proceedings were materially affected by irregularities in procedure, or the decision was unsupported 15

by material and substantial evidence in view of the entire record, or the decision is in conflict with the city s applicable decision criteria, it may: i. Reverse the decision. ii. Modify the decision and approve it as modified. iii. Remand the decision back to the decision maker for further consideration. e. If the hearing body finds that none of the procedural or factual bases listed above exist and that there has been no substantial error, the hearing body may adopt the findings and/or conclusions of the decision body, concur with the decision of the decision body and approve the development proposal as originally approved, with or without modifications. f. Final decision on the appeal shall be made within 30 days from the last day of the appeal hearing. g. The city s final decision on a development proposal may be appealed by a party of record with standing to file a land use petition in King County superior court. Such petition must be filed within 21 days of the issuance of the decision. 6. Administrative appeals of ministerial, administrative or discretionary actions listed in MICC 19.15.010(E) for a single project shall be consolidated and heard together in a single appeal by the hearing examiner, except for appeals of an environmental Determinations of Significance. An open record hearing of appeals of projects that require more than one ministerial, administrative, or discretionary action listed in MICC 19.15.010(E), shall be scheduled after all decisions are issued by the City. Where a Determination of Significance is appealed, the appeal shall be heard by the Hearing Examiner prior to any consideration of the underlying application. Where a Determination of Non-Significance (DNS) or the adequacy of an Environmental Impact Statement (EIS) is appealed, the hearing on the appeal shall be consolidated with any open record hearing to be conducted on the underlying application. 19.15.040(E)(3)-Design Commission-Additional Functions 3. The design commission shall act as the appeal authority for design review decisions made by the code official for minor exterior modifications. 19.15.040(F)(2)(g) Design Commission--Design Review Procedure--Review Process for Major New Construction g. Appeal. Only the final design commission review decision may be appealed, in a closed record appeal to the hearing examiner, pursuant to MICC 19.15.020(J). 19.15.040(F)(3)(d) Design Commission-- Design Review Procedure--Review Process for Minor Exterior Modification d. Appeal. The code official s or design commission s decision on an application for minor exterior modification is final unless appealed to the design commission pursuant to MICC 19.15.020(J). The design commission s decision on an application (not an 16

appeal) for minor exterior modification is final unless appealed to the hearing examiner pursuant to MICC 19.15.020(J). 19.15.040(H) Design Commission 19.16.010 Definitions H. Appeals. Appeals shall be consistent with the appeal procedures specified in MICC 19.15.020(J). Appeal, Closed Record: An administrative appeal to the city council following an open record hearing on a project application. Evidence for the appeal is limited to the record of the open record hearing. (See also Open Record Hearing ). Appeal, Open Record: An administrative appeal to the planning commission or city council when there has not been an open record hearing on a project application. New evidence or information is allowed to be submitted in review of the decision (See also Open Record Hearing ). 17