§ 17.09.160. Environmental appeals.

The county establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

A.

Only Threshold Determinations May be Appealed. Only final threshold determinations, in the form of a determination of significance (DS), mitigated determination of nonsignificance (MDNS) or a determination of nonsignificance (DNS), shall be appealable to the hearing examiner; provided, however, when the threshold determination is a DS which has been agreed to by the proponent, it shall not be appealable.

B.

Who May Appeal. Any person aggrieved by a threshold determination may appeal; provided, however, if there is a comment period required by WAC 197-11-340, only those persons who submit written comments during the comment period may appeal the threshold determination.

C.

Time to Appeal. A written notice of appeal, meeting the requirements of subsection (D) of this section, and the appeal fee must be received by the resource stewardship department within fourteen calendar days of the date of issuance of the threshold determination or, if there is a comment period under WAC 197-11-340, within seven calendar days of the last day of the comment period. If the last day of the appeal period is a holiday or a weekend, the appeal must be filed by five p.m. on the first weekday following such holiday or weekend.

D.

Contents of an Appeal. A written notice of appeal shall contain the following information:

1.

Name, mailing address and telephone number of the appellant and his/her representative, if any;

2.

A copy of the DS, MDNS or DNS;

3.

A concise statement of the factual and legal basis for the appeal citing specifically the alleged errors in the decision;

4.

The specific relief sought; and

5.

A statement describing the appellant's standing to appeal pursuant to Section 17.09.160B.

E.

Timing of the Public Hearing on the Appeal. Public hearings on appeals of a DS, MDNS or DNS shall occur prior to any decision on the underlying proposal and shall be heard by the hearing examiner. If the underlying proposal is reviewed by the hearing examiner, the SEPA appeal may be heard in concurrence with the public hearing on the underlying proposal.

F.

Public Notice of Appeal Before the Hearing Examiner. When Thurston County receives a timely notice of appeal and timely filing of appropriate fees under this chapter, the county shall give public notice of such appeal by mailing notice to:

1.

The appellant, project sponsor, the environmental review officer, and any individuals or organizations who have submitted a written request for notice of SEPA appeals to the resource stewardship department;

2.

Adjacent property owners within three hundred feet of the project, or such greater distance as specified in the notice provisions of the underlying governmental action, as of the time the threshold determination is issued;

3.

Agencies who have received written notice of the threshold determination; and

4.

The appropriate media, as determined by the resource stewardship department, but only if the appeal is of a nonproject action.

G.

Dismissal of Appeal. The hearing examiner may summarily dismiss an appeal of a threshold determination for a project action without hearing when such appeal is determined by the examiner to be without merit on its face, frivolous or brought merely to secure a delay, or that the appellant lacks standing to appeal, i.e., is not an aggrieved party. Such dismissal, if any, shall occur within ten calendar days of the filing of the appeal.

H.

Prehearing Conference. A prehearing conference shall be held between the appellant, the project sponsor and the environmental review officer within fifteen calendar days of the filing of an appeal of a threshold determination for a project action. The purpose of the prehearing conference is to discuss process, settlement, and/or summary disposition, clarification and jurisdiction of issues raised in the notice of appeal.

I.

Public Hearing on Appeal. The hearing examiner shall conduct a public hearing into whether or not the county complied with the procedural requirements of Chapter 43.21C, the State Environmental Policy Act, and Chapter 197-11 WAC in issuing the DS, MDNS or DNS as follows:

1.

The hearing examiner shall review all appeals by reviewing all admissible documentary evidence, arguments from any interested person and testimony given under oath;

2.

The hearing examiner shall give substantial weight to the environmental review officer's procedural determination;

3.

The hearing may be continued from time to time without further mailed or delivered notice; and

4.

The hearing examiner shall maintain an electronically recorded tape of the testimony and arguments presented and a record of the documents presented.

J.

Decision by Hearing Examiner. The hearing examiner shall render a written decision upon the appeal of a threshold determination for project actions within ten working days from the conclusion of the hearing, unless a longer period is agreed upon by the appellant, applicant and the hearing examiner, as follows:

1.

The decision shall contain an analysis of why the hearing examiner rejected or accepted the threshold determination, a synopsis of the testimony and arguments presented, the examiner's findings of fact, and conclusions of law.

2.

Within three working days of its issuance, copies of the decision shall be mailed or delivered to the applicant, the appellant, the environmental review officer, the clerk of the board and all parties of record.

K.

Hearing Examiner's Decision on Appeals of Threshold Determinations for Project Actions is Final. The decision of the hearing examiner on an appeal of a threshold determination for a project action is final. The hearing examiner shall not entertain motions for reconsideration. The decision of the hearing examiner may only be appealed to Superior Court in conjunction with an appeal of the underlying action in accordance with RCW 43.21C.075, the State Environmental Policy Act and Section 17.09.160T of this section.

L.

Recommendation by Hearing Examiner on Appeals of Threshold Determinations for Nonproject Actions. The hearing examiner shall render a written recommendation on an appeal of a threshold determination for a nonproject action within ten working days from the conclusion of the hearing unless a longer period is agreed upon by the applicant and the hearing examiner as follows:

1.

The recommendation shall contain an analysis of why the hearing examiner rejected or accepted the threshold determination, a synopsis of the testimony and arguments presented, the examiner's findings of fact, and conclusions of law.

2.

Within three working days of its issuance, copies of the recommendation shall be mailed or delivered to the applicant, the appellant, the environmental review officer, the clerk of the board and all parties of record.

M.

Effect of the Hearing Examiner's Recommendation on Appeals of Threshold Determinations for Nonproject Actions. The recommendation of the hearing examiner is a recommendation only and the final decision with respect to the appeal of a threshold determination for a nonproject action shall be made by the board of county commissioners (board).

N.

Board of County Commissioners' Action Upon Issuance of Recommendation on Appeals of Threshold Determinations for Nonproject Actions. Upon issuance of the hearing examiner's recommendation, the following actions shall occur:

1.

The clerk of the board shall promptly set a public meeting to consider the appeal and recommendation;

2.

Notice of the time, date, place and nature of the meeting shall be mailed to the applicant, the appellant, the environmental review officer and to all parties of record;

3.

The board shall conduct a public meeting and its review of the appeal and the hearing examiner's recommendation shall be limited to the record created before the hearing examiner;

4.

The board may continue the public meeting from time to time without further notice;

5.

The board shall decide the appeal at the meeting or at a continuation thereof;

6.

The decision of the board shall be reported in its official minutes. The board shall also prepare written findings and conclusions or adopt the hearing examiner's findings and conclusions as its own; and

7.

The clerk of the board shall transmit a copy of the written decision to the appellant, the applicant and all parties of record.

O.

Board of County Commissioners' Decision Final. The decision of the board on a threshold determi nation appeal for a nonproject action is final. The board shall not entertain motions for reconsideration. The decision of the board may only be appealed to Superior Court in conjunction with an appeal of the underlying action in accordance with RCW 43.21C.075, the State Environmental Policy Act, and Section 7.09.160T of this section.

P.

Parties of Record. Parties of record are persons who have:

1.

Given oral or written comments to the hearing examiner during or in connection with a public hearing; or

2.

Listed their names, as persons wishing a copy of the decision, on a sign-up sheet which is available during the public hearings.

Q.

Effect of an Appeal. If there is a pending administrative appeal of a threshold determination for a project action, the lead agency may continue to process the application on the underlying action, but shall not issue its final decision or permit any action until the hearing examiner has taken final action on the appeal.

R.

For any appeal under this subsection, the county shall provide for a record of the appeal proceeding which consists of:

1.

Findings and conclusions;

2.

Testimony under oath;

3.

A taped or written transcript.

S.

The procedural determination by the county's responsible official shall carry substantial weight in any appeal proceeding.

T.

Time to Commence a Judicial Appeal.

1.

Judicial appeals of final decisions made under this chapter shall be commenced within the same time period provided for appealing the underlying governmental action; provided, however, that if there is no time period for appealing the underlying governmental action, judicial appeals shall be commenced within twenty-one calendar days.

2.

The time for commencing a judicial appeal shall begin to run on the issuance of the final written decision on the threshold determination.

3.

For the purposes of this subsection, the date of issuance is three days after the final written decision on the threshold determination is mailed.

(Ord. 11804 § 19, 1998: Ord. 11047, 1995: Ord. 7889 § 1 (part), 1984)

(Ord. No. 14773, § 10(Att. I), 7-24-2012)