§ 3.92.100. Appeals

A. Any fee payer may pay the impact fees imposed by this title under protest in order to obtain a building permit. Appeals regarding the impact fees imposed on any development activity may only be taken by the fee payer of the property where such development activity will occur. No appeal shall be permitted unless and until the impact fees at issue have been paid to the city.

B. Determinations of the director with respect to the applicability of the impact fees assigned to a given residential development activity, the availability or value of a credit, or the director's decision concerning the independent fee calculation, or the fees imposed by the director pursuant to Section 3.92.060, or any other determination which the director is authorized to make pursuant to this title, can be appealed to the board of adjustment.

C. Appeals shall be taken within fifteen calendar days of the director's issuance of a written determination by filing with the city clerk a notice of appeal specifying the grounds thereof, and depositing the necessary fee, which is set forth in the existing fee schedules for appeals. The director shall transmit to the board of adjustment all papers constituting the record for the determination, including where appropriate, value assessments and the independent fee calculation.

D. The city clerk shall fix a time for the hearing of the appeal, give notice to the parties in interest, and decide the same as provided in Chapter 17 of the Anacortes Municipal Code. At the hearing, any party may appear in person or by agent or attorney to represent the matter placed before the board of adjustment.

E. The board of adjustment is authorized to make findings of fact regarding the applicability of the impact fees to a given residential development activity, the availability or amount of the credit, or the accuracy or applicability of an independent fee calculation. The decision of the board of adjustment shall be final, except as provided in this section.

F. The board of adjustment may, so long as such action is in conformance with the provisions of this chapter, reverse or affirm, in whole or in part, or may modify the determinations of the director with respect to the amount of the impact fees imposed or the credit awarded upon a determination that it is proper to do so based on principles of fairness, and may make such order, requirements, decision or determination as ought to be made in the public interest.

G. Any fee payer who believes that the decision of the board of adjustment is based on erroneous procedures, errors of law or fact, error in judgment, or has discovered new evidence which could not be reasonably made available at the prior hearing, may make a written request for reconsideration by the board of adjustment within ten working days of the date the decision is rendered. Such fee payer is the "appellant" for the purposes of this section. The request for appeal shall set forth the specific errors or new information relied upon by such appellant, and the board of adjustment may, after review of the record, take further action as deemed proper.

H. The filing of a request for reconsideration shall effectively stay the appeal period until the board of adjustment takes further action.

I. Where the city council determines that there is a flaw in the impact fee program and/or fees, specified or imposed, or that a specific exemption or credit should be awarded on the basis of equity or that the principles of fairness require amendments to this title, the council may elect to conduct a review of this title as part of the council's annual or other periodic review of the fee schedule.

J. Upon such written appeal being filed within the time period allotted and upon payment of fees as required, a hearing shall be held by the board of adjustment. Such hearing shall be held in accordance with the following appeal procedures:

1. The director ("respondent") shall present a summary of the findings, conclusions, and decision, as well as the alleged errors forming the basis of the appeal.

2. The appellant(s) and the respondent(s) to the appeal shall have the opportunity to present oral arguments before the board of adjustment, provided that, the appellants may reserve a portion of their time for rebuttal. Such oral argument shall be confined to the record and to any alleged errors therein or to any allegation of irregularities in procedure. The board of adjustment may request additional information from any staff member or party, or any factual information from members of the audience at its discretion. Such additional information shall be made a part of the record.

3. If the board of adjustment finds that:

a. The director's findings or decision contains substantial error;

b. The director's proceedings were materially affected by irregularities in procedure;

c. The director's decision was unsupported by substantial evidence in view of the entire record as submitted; or

d. The director's decision is in conflict with the city's adopted plans, policies, and ordinances, it may remand for further review by the director or may reverse the director's decision. In addition, the board of adjustment may choose to modify the director's decision based on the above criteria. Furthermore, any matter may be continued to a time certain for additional city staff analysis desired by the board of adjustment, before a final determination by the board of adjustment.

4. If the board of adjustment determines that there is no basis for the alleged errors set forth in the appeal, it may adopt the findings of the director and accept the decision of the director in the matter.

K. This procedure is the only method for appealing alleged errors or irregularities in procedure which may have occurred with the director. All objections are deemed waived if no appeal is taken from the action by the director.

L. Any matter requiring action by the board of adjustment shall be taken by the adoption of a motion by the council. When taking any such final action, the board of adjustment shall make and enter findings of fact from the record and conclusions thereof which support its action. The board of adjustment may adopt all or portions of the director's findings and conclusions.

M. The action of the board of adjustment approving, modifying, or rejecting a decision of the director, shall be final and conclusive, unless within thirty calendar days from the date of the council action any fee payer appeals to the Superior Court of Washington for Skagit County, for the purpose of review of the action taken.

(Ord. 2474 § 8, 1998)