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ORD 15-794 ORDINANCE NO. 15-794 AN ORDINANCE of the City of Federal Way,Washington, relating to the fee associated with appeals of an order to cease activity or a notice and order; amending FWRC 1.15.060. (Amending Ordinance No. 09- 597). WHEREAS,the City of Federal Way recently adopted in Resolution 14-673 a fee schedule establishing fees for various services provided by the City, and WHEREAS,FWRC 1.15.060, as it presently exists, conflicts with Resolution 14-673 in so far as FWRC 1.15.060 states that the City will charge an appeal fee of$100.00 for an appeal of an order to cease activity or an appeal of a notice and order; and WHEREAS,the City Council finds that it is in the public's interest to charge appeal fees to reduce the number of frivolous appeals and to help defray the cost of holding an appeal hearing; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. FWRC 1.15.060 is hereby amended to read as follows: 1.15.060 Appeal to hearing examiner. (1) General. A person may appeal an order to cease activity or notice and order to the hearing examiner by filing a written notice of appeal with the city clerk within 14 calendar days from the date of service of the order to cease activity or notice and order, specifying what issue is being appealed. The person appealing may appeal either the determination that a violation exists, the amount of any monetary penalty imposed, the corrective action ordered, or any combination thereof. The city may also request a hearing before the hearing examiner to assess costs, modify previous orders, or to enter other orders as needed. The appeal mutt be accompanied .. .. - _ _ _ _ - - -- - -• -- _ __- _ _ - _ _ -- _ _ _-- . An appellant shall pay an appeal fee consistent with the fee schedule maintained by the city clerk. The appeal fee may be refunded to the appellant should the appellant prevail before the hearing examiner. The filing fee is waived in cases where the city requests the hearing. (2) Effect of appeal. The timely filing of an appeal in compliance with this section shall stay the requirement for action specified in the notice and order that is the subject of the appeal. The Ordinance No. 15-794 Page 1 of 5 monetary penalty for a continuing violation does not continue to accrue during the pendency of the appeal; however, the hearing examiner may impose a daily monetary penalty from the date of service of the order to cease activity or notice and order if the hearing examiner finds that the appeal is frivolous or intended solely to delay compliance. An appeal does not lift or stay an order to cease activity. (3) Hearing. (a) Date of hearing. Within 10 days of the clerk's receipt of the appeal, the hearing examiner shall set a public hearing for a date within 30 days of the clerk's receipt of the appeal. (b) Notice of hearing. The notice shall contain the following: (i) The file number and a brief description of the matter being appealed. (ii)A statement of the scope of the appeal, including a summary of the errors alleged and the findings and/or legal conclusions disputed in the appeal. (iii) The date, term and place of the public hearing on the appeal. (iv)A statement of who may participate in the appeal. (v) A statement of how to participate in the appeal. (c) Distribution. The clerk shall cause a notice of the appeal hearing to be posted on the property that is the subject of the order to cease activity or notice and order, and mailed to the appellant and, in cases involving any ordinance regulating the improvement, development, modification, maintenance, or use of real property, to all property owners located within 300 feet of the property that is the subject of the violation. The notice shall be mailed and posted at least 10 calendar days before the hearing on the appeal. (d) Participation in the appeal. The city and the appellant may participate as parties in the hearing and each may call witnesses. Any person may participate in the public hearing in either or both of the following ways: (i) By submitting written comments to the hearing examiner, either by delivering these comments to the clerk prior to the hearing or by giving these directly to the hearing examiner at the hearing. (ii) By appearing in person, or through a representative, at the hearing and making oral comments directly to the hearing. The hearing examiner may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing. (e) Conduct of hearing. The hearing examiner shall conduct the hearing on the appeal pursuant to the rules of procedure of the hearing examiner. The appellant shall have the burden of proof by a preponderance of the evidence that a violation has not occurred, that the amount of monetary penalty assessed was not in compliance with the Code, or that the corrective action ordered is unnecessary to cure the violation. The hearing examiner shall make a complete electronic sound recording of the public hearing. Ordinance No. 15-794 Page 2 of 5 (f) Continuation of the hearing. The hearing examiner may continue the hearing if he or she is unable to hear all of the public comments on the matter or if the hearing examiner determines that he or she needs more information on the matter. If, during the hearing, the hearing examiner announces the time and place of the next hearing on the matter, no further notice of that hearing need be given. (4) Decision of hearing examiner. (a) Vacation. If the hearing examiner determines that the appellant has proven by a preponderance of the evidence that no violation substantially as stated in the order to cease activity or notice and order has occurred, the hearing examiner shall vacate the order to cease activity or notice and order, and order the appeal fee refunded. (b)Affirmance. If the hearing examiner determines that the appellant has not so proven by a preponderance of the evidence, the hearing examiner shall affirm the order to cease activity or notice and order. (c) Modification. If the hearing examiner determines that the corrective action ordered was unnecessary to cure the violation, the examiner may modify the corrective action required depending on the determinations of the examiner. The hearing examiner may also modify the assessment of penalties and costs if good cause is found. In so ordering, the hearing examiner shall consider the following: (i) Whether the intent of the appeal was to delay compliance; (ii) Whether the appeal was frivolous; (iii) Whether there was a written contract or agreement with another party which specified the securing by the other party of the applicable permit or approval from the city; (iv) Whether the applicant exercised reasonable, timely, and good faith effort to comply with the applicable development regulations; or (v) Any other relevant factors. The monetary penalty shall not be modified without assuring the violation is corrected, unless the penalty is legally erroneous. In modifying the corrective action ordered, the hearing examiner shall require, at a minimum, any action necessary to ensure actual compliance within 14 days of the date of the examiner's decision. (5) Issuance of decision. The hearing examiner shall issue an oral decision at the time of the hearing unless good cause exists to delay the decision. The hearing examiner shall issue a of written decision, including findings of fact, conclusions, and order within 14 day s o the hearing. The appellant is required to comply with any decision of the hearing examiner whether oral or written upon issuance. (6) Judicial review. Judicial review of a decision by the hearing examiner relating to any ordinance regulating the improvement, development, modification, maintenance, or use of real property may be sought by any person aggrieved or adversely affected by the decision, pursuant to the provisions of the Land Use Petition Act, Chapter 36.70C RCW, if applicable, or other applicable authority, if any, if the petition or complaint seeking review is filed and served on all Y Y P p Ordinance No. 15-794 Page 3 of 5 parties within 21 days of the date of the decision. For purposes of this section, "aggrieved or adversely affected" shall have the meaning set forth in RCW 36.70C.060(2). Judicial review of all other decisions may only occur subject to the procedures of Chapter 7.16 RCW. (7) Effect of decision. If judicial review is not obtained, the decision of the hearing examiner shall constitute the final decision of the city, and the failure to comply with the decision of the hearing examiner shall constitute a misdemeanor. Section 2. Severability. Should any section, subsection, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or situation, be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of this chapter or its application to any other person or situation. The City Council of the City of Federal Way hereby declares that it would have adopted this chapter and each section,subsection,sentence, clauses,phrase,or portion thereof,irrespective of the fact that any one or more sections,subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 3. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 4. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 5. Effective Date. This ordinance shall take effect and be in force thirty(30)days from and after its passage and publication, as provided by law. Ordinance No. 15-794 Page 4 of 5 PASSED by the City Council of the City of Federal Way this 19th day of May, 2015. CITY OF . . DERAL WAY MA lT, J ', FERRELL ATTEST: i►/ , / LERK, STEPHANIE C 4 'TNEY, CMC APPROVED AS TO FORM: --P CITY ATV) b Y, AMY JO PEARSALL FILED WITH THE CITY CLERK: 05/01/2015 PASSED BY THE CITY COUNCIL: 05/19/2015 PUBLISHED: 05/22/2015 EFFECTIVE DATE: 06/21/2015 ORDINANCE NO.: 15-794 Ordinance No. 15-794 Page 5 of 5