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Memo to Council re process M E M O R A N D U M City of Yelm Community Development Department   To: Mayor Adam Rivas Yelm City Council From: Grant Beck, Director of Community Development Date: November 1, 2005 Subj: Closed Record Appeal Procedures The Yelm Hearing Examiner issued on November 1, 2005, a decision in the matter of Wal-Mart’s application to construct a supercenter in Yelm and the Yelm Commerce Group’s appeal of the City’s issuance of a Mitigated Determination of Non-significance. The Examiner denied the SEPA appeal and issued a site plan review approval for the construction of the Wal-Mart. In the event of an appeal, I would like to take this time to review the procedures for a closed record hearing. The Council’s role in a closed record hearing is discussed in Sections 2.26.150 and .160 YMC, a copy of which is attached to this memo. The Record A closed record appeal is based on the record created before the Hearing Examiner with no new evidence or information allowed to be submitted, and only appeal argument is allowed. The record before the Hearing Examiner includes: Exhibits (listed in the Index to the record, attached to this memo). Audio recordings of the hearing before the Examiner. Post hearing briefs. Prior to the closed record appeal, each member of the Council will need to review the record. The Community Development Department has set up a reading station in the City Hall conference room for use by Council members which includes the entire written record, organized and indexed, including all post hearing briefs and the hearing examiner’s decision. There is also a video display system in the conference room in order for the Council members to view the two videos submitted as part of the record. Each Council member will receive audio compact discs of the oral testimony received during the three day hearing before the Examiner, which need to be heard prior to the closed record hearing. Each Council member needs to be responsible for the review of the entire record prior to the closed record appeal hearing. The Appeal Process The written appeal is required to include alleged specific errors of fact, alleged specific procedural errors, alleged omissions from the record, alleged errors of interpretation of the comprehensive plan, or other issues which the City Council is asked to consider on appeal. The appeal must also reference the section, paragraph, and page the provisions of law which are alleged to have been violated. The appeal is argument about the record or the decision of the Examiner, and can not introduce new evidence. The role of the Council is to determine if the Examiner’s decision was legally correct and whether it was supported by substantial evidence. The Council must defer to the Hearing Examiner’s factual findings if they are supported by substantial evidence. The Council may adopt, amend and adopt, reject, reverse, or remand the Hearing Examiner’s decision, based on the record created before the public hearing. After the appeal is submitted, Wal-Mart and the Community Development Department have 14 days to submit written responses to the appeal. The Yelm Commerce Group then has 7 days to reply to Wal-Mart and the City. Copies of all these documents will be provided to each Council member as they are submitted by the parties. The Community Development Department has requested that each memorandum include copies of any exhibit referenced in the memorandum, for the convenience of the Council. The Closed Record Appeal Prior to the closed record appeal, which will be held at the December 14, 2005, regular meeting of the City Council, each Council member should have reviewed the entire record, the decision, and all memorandum submitted by the parties. At the closed record appeal hearing, the Yelm Commerce Group, Wal-Mart, and staff from the Community Development Department will provide an oral summary of the arguments that were made in the memorandum. Each party will have 10 minutes to summarize their positions. Again, at this point, there is no new evidence introduced into the record and the oral argument is limited to the legal positions each party is taking. The Council may ask questions of the parties regarding their arguments. There will be no testimony, argument, or questions from the public at the closed record hearing. Once the oral arguments are finished, the Council may render a decision on the appeal. If the Council renders a decision different from the decision of the Hearing Examiner, it must adopt amended findings and conclusions accordingly. The Standard of Review The Council may reject or amend the Examiner’s decision if it finds that the decision was contrary to law or not supported by substantial evidence. The factual findings of the Examiner are presumed to be valid if they are supported by substantial evidence. It is the Yelm Commerce Group’s burden to prove to the Council that the Examiner’s decision should be rejected or amended.