Classico Reconsideration.pdfJanuary 4, 2012
City of Edmonds
Hearing Examiner
121 5t" Ave North
Edmonds WA 98026
Re: Request for Reconsideration
File Number: APL2011-0005
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We have reviewed the Hearing Examiner's Decision to dismiss Appeal file number
APL2011-005. In reviewing the decision we see that there is a clear path in the code that
leads from one section to another — resulting in the conclusion that a greater notice was
required than the notice provided. However, in contradiction to the path followed by the
Hearing Examiner, the following code path also exists:
ECDC 20.01.003A. Permit Types Table, Column 2, row 2 specifically lists a "Formal
interpretation of the text of the ECDC by the director" as a type 11 application, Thus the
appeal filed is an appeal of a Type 11 Application.
ECDC 20.01.001A, states: "Typell permits are administrative decisions where the
director makes a decision based on standards and clearly identified criteria, but where
public notice is required. Unless otherwise provided, appeals of Type 11 decisions shall be
initiated as set forth in ECDC 20.07.004."
ECDC 20.07.004.17 states under "Notice of Appeal". "The development services director
(hereinafter the "director") shall provide mailed notice of the appeal to all parties of
record as defined in ECDC 20.07.003"
ECDC 20.07.003 States:
"A. Limited to Parties of Record. Only parties of record may file an administrative
appeal.
B. Definition. The term "parties of record," for the purposes of this chapter, shall mean:
1. The applicant;
2. Any person who testified at the open record public hearing on the application;
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3. Any person who individually submits written comments concerning the application at
the open record public hearing (or to staff if an appeal of a Type II decision). Persons
who have only signed petitions are not parties of record; and/or
4. The city of Edmonds."
This code path leads to a different standard for notice from that found by the Examiner.
We believe the path outlined above and used by the City for notice is correct for the
following reasons:
Specific vs. General.
The code path cited by the Hearing Examiner refers to the general rule,
whereas the code path cited above is more specific. In general, it is assumed
that a specific code section defines or clarifies less specific sections, and
therefore the specific will rule over the general.
2. Appeals vs. Permit.
The code path cited by the examiner refers to both appeals and permits. The
code path suggested herein is more in line with appeals. In an appeal situation
parties of record are set (ECDC 20.07.003). Once parties of record are set,
there is no purpose is inviting public testimony. Thus it makes more sense to
use the code path that brings us to ECDC 20.07.003, which requires only
notice of parties of record.
City wide interpretation vs. lot specific issue.
The subject appeal relates to an interpretation of code, not a specific location.
The appellant has not referred a location in the appeal. Any decision made by
the examiner in this case will in turn apply all proposed construction in the
City. Therefore there is no lot from which to set a 300 foot radius. In this
case, the City notice must mimic the posting requirements of a type V area
wide zoning text amendment. Following the rules set forth in ECDC 20.07
achieves this goal, thus caries the logic of the situation forward.
We respectfully request that the Examiner find the posting sufficient under ECDC
20.01.001 and 20.07.004, reverse his dismissal of the subject case, reopen the appeal and
make his decision based on the merits of the case
Respectfully,
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ohn Bissell,
JBA2 LLC
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BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
RE: Classico Homes 1
APPEAL OF BUILDING OFFICIAL
DETERIVIINATION
Appeal
APL2011-0005
The Appellant appeals an interpretation made by the Edmonds Building Official of a hearing examiner
decision made on a prior Classico Homes appeal, APL2011-0004. The appeal is dismissed because it
was not advertised as required by City regulations.
During public testimony Alvin Rutledge objected to the hearing because he received no notice of it and
he believed that other property owners in the vicinity had also not received mailed notice. An
interpretation of the Building Official is a Type II decision as outlined in ECDC 20.01.001. ECDC
20.01.003(13) provides that appeals of Type II decisions are subject to a public hearing in front of the
Hearing Examiner. ECDC 20.03.003(A) provides that notice of a public hearing shall be provided for
appeals of Type II actions by mailing, posting and publishing. ECDC 20.03.003(C)(1)(c) provides
that mailed notice shall be mailed to all owners of real property located within 300 feet of the
boundaries of the property involved in the "application". The staff report and staff at hearing
acknowledged that no mailed notice was provided. Proper notice was not mailed for the hearing and a
hearing with proper notice must be rescheduled in front of the Examiner.
If the parties believe that the Examiner has misconstrued any code provision regarding notice in this
matter, a reconsideration motion is strongly encouraged. Any reconsideration motion will have to be
based upon evidence already in the record.
The appeal is dismissed without prejudice because mailed notice was not sent for the hearing as
required by City regulations. Staff may re -advertise for another hearing on the same appeal if
agreeable to the Appellant.
DATED this 22"d day of December, 2011.
APPEAL - 1
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Phil A. Olbrechts
City of Edmonds Hearing Examiner
Appeal Right and Valuation Notices
This decision is final and only subject to appeal to superior court as governed by Chapter 36.70C
RCW. Appeal deadlines are short (21 days from issuance of the decision) and the courts strictly
apply the procedural requirements for filing an appeal.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Reconsideration
ECDC 20.06.010(A) authorizes reconsideration of hearing examiner decisions within 10 calendar
days of the hearing examiner's written decision. Requests shall be delivered to the Director of
Community Services before 4:00 p.m. on the last business day of the reconsideration period.
Requests for reconsideration that are received by mail after 4:00 p.m. on the last day of this
reconsideration period will not be accepted, no matter when such requests were sent, mailed or
postmarked.
APPEAL - 2