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20.35.350 Appeal of Hearing Examiner recommendation.
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A. A Process III recommendation of the Hearing Examiner may be appealed to the City Council as follows:

1. Who May Appeal. The recommendation of the Hearing Examiner may be appealed by any person who participated in the public hearing as provided for in LUC 20.35.337, or by the applicant or the City.

2. Form of Appeal. A person appealing the recommendation of the Hearing Examiner must file with the City Clerk a written statement of the findings of fact or conclusions which are being appealed and must pay a fee, if any, as established by ordinance or resolution. The written statement must be filed together with an appeal notification form available from the Office of the City Clerk.

3. Time and Place to Appeal. The written statement of appeal, the appeal notification form, and the appeal fee, if any, must be received by the City Clerk no later than 14 days following the date the recommendation of the Hearing Examiner was mailed.

4. Hearing Required. The City Council shall conduct a closed record appeal hearing and shall decide upon an appeal of the recommendation of the Hearing Examiner prior to or in conjunction with taking final action on the application pursuant to LUC 20.35.355. The decision on any appeal of the Hearing Examiner’s recommendation and final action on the application shall be made within such time as is required by applicable state law.

5. Public Notice of Appeal Hearing.

a. Content of Notice. The City Clerk shall prepare a notice of an appeal hearing containing the following:

i. The name of the appellant, and if applicable the project name, and

ii. The street address of the subject property, and a description in nonlegal terms sufficient to identify its location, and

iii. A brief description of the recommendation of the Hearing Examiner which is being appealed, and

iv. The date, time and place of the appeal hearing before the City Council.

b. Time and Provision of Notice. The City Clerk shall mail notice of the appeal hearing on an appeal of the recommendation of the Hearing Examiner no less than 14 days prior to the appeal hearing to each person entitled to participate in the appeal pursuant to LUC 20.35.350.A.6.a.

6. Closed Record Hearing on Appeal to City Council.

a. Who May Participate. The applicant, the appellant, the applicable Department Director, or representatives of these parties may participate in the appeal hearing.

b. How to Participate. A person entitled to participate may participate in the appeal hearing by: (1) Submitting written argument on the appeal to the City Clerk no later than the date specified in the City Council’s Rules of Procedure; or (2) making oral argument on the appeal to the City Council at the appeal hearing. Argument on the appeal is limited to information contained in the record developed before the Hearing Examiner and must specify the findings or conclusions which are the subject of the appeal, as well as the relief requested from the Council.

c. Hearing Record. The City Council shall make an electronic sound recording of each appeal hearing.

7. City Council Decision on Appeal.

a. Criteria. The City Council may grant the appeal or grant the appeal with modifications if the appellant has carried the burden of proof and the City Council finds that the recommendation of the Hearing Examiner is not supported by material and substantial evidence. In all other cases, the appeal shall be denied. The City Council shall accord substantial weight to the recommendation of the Hearing Examiner.

b. Conditions. The City Council may impose conditions as part of the granting of an appeal or granting of an appeal with modifications to ensure conformance with the criteria under which the application was made.

c. Findings. The City Council shall adopt findings and conclusions which support its decision on the appeal.

d. Required Vote. A vote to grant the appeal or grant the appeal with modifications must be by a majority vote of the membership of the City Council. Any other vote constitutes denial of the appeal. (Ord. 5089, 8-3-98, § 45; Ord. 4978, 3-17-97, § 11; Ord. 4972, 3-3-97, § 3)

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