HomeMy WebLinkAboutHE Determination APPL 2020-001 Burns Road Preliminary Plat PP 2020-002 CITY OF PASCO HEARING EXAMINER
FINDINGS OF FACT, CONCLUSIONS OF LAW,AND DECISION
Burns Road Duplexes, PP 2020-002
SEPA Appeal and Preliminary Plat Decision
December 30, 2020
I. FINDINGS OF FACT
1. Background
Proposal. 123 multi-family duplex / zero lot line lots on a vacant 13.15-acre site
with no critical areas.
Applicant. Big Sky Developers, LLC, 12406 Eagle Ranch Court, Pasco, WA
99301.
Location. 10181 / 10315 Burns Road, Pasco, WA 99301. Assessor Parcel Nos.
115-180-066 and 115-180-067.1
2. SEPA (State Environmental Policy Act, Ch. 43.21C RCW)Appeal Hearing.
2.1 MDNS Issuance. The Department issued a Mitigated Determination of
Non-Significance on June 26, 2020.2 The Applicant appealed on July 6, objecting to two MDNS
conditions, one requiring a traffic impact analysis, and another requiring a fire mitigation fee.
2.2 Hearing Overview. An open record appeal hearing was held remotely on
December 9, 2020, before the preliminary plat was heard. The parties included:
Department. The City of Pasco Planning Department was represented by Craig
Briggs and Jeffrey Briggs, Kerr Ferguson Law, 7025 W. Grandridge Blvd., Ste. A, Kennewick,
WA 99336-7826. Mr. Gonzalez provided sworn testimony.
Appellant/Applicant: Big Sky Developers, LLC was represented by Mr. Fickes,
Halverson Northwest Law Group, 405 E. Lincoln, Yakima, WA, 98907-2550. Mr. Fickes
provided sworn testimony and legal argument.
2.3 Record. Admitted exhibits are the SEPA Staff Report and attachments,
including the MDNS, the Applicant's pre-hearing brief, the appeal, the plat Staff Report
submitted before the hearing, and the updated plat map submitted just before the hearing.
Documents submitted after the hearing were not admitted for the SEPA appeal, but were
accepted in reviewing the plat.
1 The Staff Report contains the legal description.
2 The hearing was initially opened on April 8,2020,but the Examiner continued it as SEPA had not been completed.
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2.4 Record Supplementation. The Department argues in comment submitted
after the hearing that it should be able to submit information into the record on fire impacts to
substantiate its arguments. Allowing that would be unfair to the Applicant/Appellant.
At the hearing, the parties had the opportunity to present their cases. This included
presenting legal argument, calling witnesses, and offering exhibits. The Appellant has the burden
of proof, so presented its case first, elaborating on its pre-hearing brief. The Department then had
the opportunity to present its case. The Department provided no substantive evidence to support
the fire mitigation fee, although this is a central requirement for imposing mitigation through
SEPA. The Applicant's counsel asked that the SEPA record be closed, and the Examiner agreed
it should be.
The plat proceeding is different. That record was kept open post-hearing. The Applicant
raised concerns, and the Examiner clarified that per her ruling at the hearing, the extension was
not for the SEPA appeal, but for the plat matter. Fire response adequacy must be addressed with
the plat, which the Examiner must independently assess. However, in an appeal setting, an
appellant makes their case, the respondent addresses the appeal, and there is then an opportunity
for rebuttal. The case in chief cannot be made after the hearing closes. This removes the purpose
of the hearing, and is unfair to the party who had prepared.
2.5 Fire Fee Condition. The Applicant, through Mr. Fickes, focused on fee
illegality under Ch. 82.02 RCW and Ch. 43.21C RCW, and the lack of record support for the fee.
He stated the MDNS does not identify the impact specific to the project being addressed or the
SEPA policy the mitigation is based on.
The Department's legal counsel agreed with Mr. Fickes that without an impact fee
ordinance the Department lacks authority under Ch. 82.02 RCW to impose the fire fee. However,
SEPA can be used to mitigate impacts to the built environment. There need not be a code
structure as with impact fee ordinances, but there must be a policy and reference to an
environmental review document that shows project impacts. Counsel did not detail the impact
being addressed, and Mr. Gonzales testified that the $390 per unit fire mitigation fee would need
to be revised. Department staff are preparing an environmental document to identify the
proportionate share of costs. He referenced the Staff Report, p. 3, which indicates it would be
later provided. On legality, he deferred to legal counsel.
Mr. Fickes countered there does seem to be consensus on much of this, excepting
whether the Department can impose the fire mitigation fee through SEPA based on this limited
record. He argued that as this is an appeal, and there is nothing in the record supporting the fee,
fee imposition is not sustainable. The record cannot be kept open to allow the Department to
substantiate its position post-hearing. There is no SEPA policy, no fire station in a capital
facilities plan, or any evidence to support the fee. Mr. Fickes asked the Examiner to approve or
deny the mitigation fee appeal based on this record.
The Department's counsel had been under impression there was a document entitled Fire
Mitigation Fee Analysis and Estimate. However, no such document was submitted, and as it still
being drafted, it does not yet exist.
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2.6 Traffic Impact Analysis Condition. Following MDNS issuance in June,
the Applicant provided a traffic impact analysis to the Department, and the Department approved
it. As the issue was resolved, the Examiner asked the parties if it was moot. The parties did not
dispute the issue had been mooted with the City's acceptance and approval of the traffic impact
analysis. Even if the plat included a blanket incorporation of MDNS conditions, that condition
has been complied with, so would require nothing further from the Applicant. There is nothing
for the Examiner to resolve so any ruling would be advisory. This issue should be dismissed.
3. Preliminary Plat
3.1 Land Use Designations/Site and Surrounding Area. The site, within the
Pasco Urban Growth Boundary, is zoned R-4 (High Density Residential). There is no minimum
density requirement, but there are minimum lot size requirements. "4,000 square feet of lot area
for single-family dwellings and 1,500 square feet of lot area for multiple-family dwellings and
dwellings part of zero-lot-line developments."3 The 2018-2038 Comprehensive indicates the site
is intended for Medium-High Residential at a density of 8-15 dwelling units per acre. The
proposed plat has a density of 9.4 dwelling units per acre, so is consistent. Surrounding zoning
and land uses are:
North: RS-1, vacant
East: R-1, single-family homes
South: RT, vacant
West: R-1, vacant
3.2 Evidence Reviewed. The Examiner admitted the Community and
Economic Development Department's ("Department") Preliminary Plat Staff Report and SEPA
Staff Report, with Attachments A-D. Different versions of the plat map were submitted, with the
most recent submittal on December 9, 2020. The Staff Report was also revised on multiple
occasions. The Examiner utilized the most recent December 15, submittal, which included an e-
mail, and attached correspondence from the City Fire Department, and the current plat map.
3.3 Hearing — Preliminary Plat. An open record public hearing was held
December 9, 2020. Due to COVID-19 restrictions, the hearing was conducted remotely, with the
Examiner, Department, and Applicant calling in. Access information was available to the public
to allow citizens to call-in. There were no reported technical difficulties during the call or
afterwards. However, in case any citizens who wished to comment had difficulty calling in,5 and
also to allow the Department to coordinate with the Applicant on the revised conditions, which
they had seemed close to agreement on, the record was kept open through December 15.
A revised staff report was submitted December 15, which the Applicant raised concerns
with due the lack of time to review it. The Examiner elected to keep the record open through
December 21, to ensure this consultation could happen, if the parties were amenable.6 The
3 PMC 25.50.070(3).
4 The Department indicated the County is expected to certify the Plan in January of 2021.
5 The record for all public hearings on permits(not appeals),is being kept open for remote hearings,in case there is
any citizen technical difficulty with participating.
6 This extension did not change the day the Examiner entered the decision,as the decision was entered within ten
business days of December 15.
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Examiner explained her rationale for the extension, which was to allow for any "minor
disagreements and/or errors on the plat" to be called to her attention. It is preferable for
documents submitted to the Examiner to be accurate, and for there to be adequate review time to
ensure all errors are identified. The statement did not preclude other comments. As stated, the
plat record was kept open for citizens, the Department, and Applicant.8
The extension served its intended purpose, with an updated and corrected Staff Report
provided on December 21St. The Applicant raised objections, primarily to the Fire Department's
submissions,but most other disputed questions were resolved.
At the hearing, the Department, through Mr. Gonzalez, identified key points from the
Staff Report. Mr. White confirmed fire service availability, though outside the six minute target
response time. The Applicant, through Mr. Stromsted, presented, along with Applicant's counsel,
Mr. Fickes. Mr. Bowman was the only individual from the public. He voiced his support for the
positions taken by Mr. Fickes and Mr. Stromsted. No other person from the public indicated a
wish to testify.
3.4 Notice. Hearing notice was mailed to property owners within 300 feet and
published in the Tri-City Herald November 29, 2020. Notice requirements were met.9
3.5 Agency Comment. The proposal was circulated to various agencies, and is
summarized below: to
Washington State Department of Transportation. The project is not adjacent to I-182,
but WSDOT expects a majority of the traffic generated from the proposed development to utilize
the Road 100/Broadmoor Blvd (Exit 7) interchange. WSDOT indicated it is to the benefit of the
City, State and future developers to preserve interchange efficiency and notes that it currently
operates within acceptable safety and operational standards.
Confederated Tribes of the Colville Reservation. The project lies near the traditional
territory of the Palus Tribe, represented by the Colville Confederated Tribes of the Colville
Reservation and governed by the Colville Business Council. An archaeological assessment
and/or investigation is requested with results submitted prior to commencement of the project.
3.6 Layout. The plat contains 123 multi-family duplexes with zero-lot line
configurations. Lots range from 2,773 to 5,189 square feet, with an average of 3,443. The plat
can comply with height, lot coverage, landscaping, and other development standards of the R-4
zone.
11
3.7 Access/Transportation. Burns Road provides access. When developed, the
subdivision will generate approximately 715 vehicle trips per day. Traffic impact fees will be
paid consistent with code requirements.12 Both the Comprehensive Plan and City Code provide
7 See e-mail comment from City counsel(December 21,2020),paragraph three.
8 The Examiner addressed this distinction during the SEPA appeal hearing as well,during a colloquy with the
Applicant's counsel.
9 PMC 21.25.050;updated Staff Report,p. 5.
10 Updated Staff Report,pp. 10-11.
11 PMC 25.70.050.
12 Ch. 3.40 PMC.
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for a convenient and interconnected street network, which supports multi-modal and pedestrian
circulation, and comports with standard requirements, such as block sizing.13 The original lay-
out did not adequately address code requirements, as detailed in the original staff report, but as
addressed in the updated Staff Report, and at the hearing, the updated Plat map addresses these
requirements. Access and circulation are detailed on the updated Plat map, which has been
designed to interconnect with the surrounding street system. And, transit can support the project.
Ben Franklin Transit's Routes 66, 67 and 225 have stops about 0.58 mile southeast of the site on
Sandifur Parkway.
3.8 Schools. Pasco School District is completing construction of new elementary and
middle schools approximately 0.33 mile east of the proposed plat on Burns Road. Maya Angelou
Elementary School on Road 84 is approximately 1.25 miles east of the site. Delta High School is
0.39 mile south on Broadmoor Boulevard. The Staff Report provides background on School
District impact fees, which ensure facility adequacy to support new development. By paying
school impact fees, adequate provision will be made to address school impacts, as required.14
3.9 Safe Travel and Walking Conditions. The plat includes adequate streets and
sidewalks. Curb, gutter, and sidewalk will be installed and constructed to City standards and
consistent with ADA requirements.
3.10 Utilities. Municipal water is available in Burns Road. The site will be served by a
future sewer/trunk-line along Harris Road and will connect to Burns Road as part of the
Northwest Sewer LID. Big Bend Electric will serve the plat.
Construction of municipal services and infrastructure (i.e., fire hydrants and streetlights)
shall be constructed per the PMC and the latest version of the Pasco Design and Construction
Standards.
An existing Franklin County Irrigation District main is at the intersection of Burns Road
and Broadmoor Boulevard, approximately 343 feet east of the proposed plat.
The assignment of water rights is a requirement for subdivision approval per PMC.15 If
no water rights are available to transfer to the City, the property owner/developer must pay a
water right fee in lieu thereof.
3.11 Parks/Open Space. Vintage Park is approximately 1.4 miles east of the proposed
plat on Road 84 south of Burns Road. Chiawana Park is approximately 3.25 miles south on West
Court Street and Road 94. Access to the Sacajawea River Trail is 2.46 miles south on West Court
Street north of Road 111. Access to the City bicycle/pedestrian trail is one-half mile south at
Broadmoor Boulevard and Sandifer Parkway. Park impact fees will be collected at the time of
permitting, per code requirements, to address the project's park impacts and ensure adequate
provision for park facilities is made.16
13 Updated Staff Report,pp. 8-9;Ch. 12.15 PMC(Complete Streets Ordinance);PMC 21.15.010(l).
14 RCW 58.17.110;PMC 21.25.060 and Ch.3.45 PMC;updated Staff Report,pp.3-4.
15 PMC 21.05.120;PMC 3.35.160.
16 RCW 58.17.110;PMC 21.25.060;Ch.3.50 PMC.
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3.12 Phasing. At the hearing, the Applicant addressed a wish to phase infrastructure
improvements. Limited detail on the phasing request was provided. The Staff Report does not
include the requested condition due to safety and travel/access concerns.17 A key issue with
phasing is ensuring required infrastructure is built. Right-of-way improvements are central to
traffic and pedestrian safety, and should be required consistent with code (PMC 12.36.050).
3.13 Fire Impacts. Any fire mitigation would be imposed not through Ch. 80.20 RCW
or Ch. 43.21C RCW, but through Ch. 58.17 RCW and the City implementing regulations, and
the Fire Code, Ch. 16.65 PMC. Through whatever authority imposed, mitigation must stem from
project impacts.
The City Fire Department wishes to improve response times, and it has provided
documentation on its goals and planning to accomplish that. Though not referenced by the Fire
Department, the Comprehensive Plan adopts a travel time goal of six minutes or less for the first
apparatus on scene, to be met 90% of the time, which the Fire Department meets 62% of the
time.18 The Fire Department provided a more current 2019 response time map. Although project
location was not marked on the map, it appears to show adjacent areas as being met greater than
62% of the time, and more likely over 76% of the time. So, while area response times do not
meet planning objectives, they appear to be an improvement over the average response time
identified in the Comprehensive Plan.
The Comprehensive Plan includes a map of 2014-15 incidents. There do not appear to be
any immediately proximate to the development area.19 If the mapping is correct, this suggests
that a residential plat in this area should on average generate few fire response calls. However,
the Fire Department comment conflicts with this data.
In an effort to meet that goal in the western part of Pasco, particularly between
Road 44 and Road 100, a fire station was relocated to Road 76 and Sandifur. In
our constant reviews of our performance that area has a very high call frequency
and draws available resources from not only our new station on Sandifur, but
from stations in other areas of the city when the Sandifer station is already
committed.20
This comment indicates there is "very high call frequency" but suggests there is a fire
station nearby, and that it was newly installed, so should further improve response times to the
area the plat is within. The comment suggests there are other areas which may need a new fire
station, to ensure the nearby station has sufficient capacity. The comment does not provide
average call frequency for a residential plat in this area. Also, it is not clear what constitutes a
17 Department cover e-mail(December 15,2020);PMC 12.36.050.
'8 Comprehenisve Plan,Vol.II,p. 85.This does not include the two minute turn-around time,which is the time
required to leave the station following receipt of a call.Even this goal,which is based on the Fire Department's
internal response procedures,is only met 67%of the time,although the goal is to meet it 90%of the time. The Plan
goal is greater than the 85%metric the Fire Department references in its comment,referring to Resolution 2938,
adopted 14 years ago.
19 Comprehensive Plan,Vol.lI,p. 85.
20 City Fire Department comment(December 21,2020).
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"high call frequency. The letter does not provide evidence supporting the need for a fire station
as a result of this plat,21 but requests general funding to serve the area west of Road 100:
Developing Fire and Emergency Medical services to serve the area west of Road
100 is in the planning stage. A location for an additional fire station on Road 100
has been purchased and design of a station will commence in 2021. However, the
funding source, approximately $5 Million, for the actual capital construction has
not been identified as noted in our current 2021-2026 Capital Improvement Plan
which was adopted by the City Council earlier this year.22
To address this comment, the Department proposed a condition which states, "Final Plat
shall not be approved until ... completion of Fire Station 83." The Examiner cannot impose such
a condition. Fire Station 83 is not being built to serve only this plat, but an entire service area,
and it appears from comment, that that the plat may not be within what should be considered the
primary service area. This one project is not responsible for this funding gap. Further, based on
the materials the Fire Department submitted, and the City's Comprehensive Plan, it is evident
that fire service can be provided to the plat.
Fire departments (or the fire marshal in counties) often comment on development
proposals. Comment is always focused on the project under review, not generalized funding
issues. Comments typically addresses fire access, fire hydrant location, and other fire code
requirements. The Fire Department did not identify concerns with the Applicant's ability to meet
these requirements.23 The Fire Department will have a further opportunity to ensure these
requirements are met, as fire code requirements must be met at the building permit stage. These
requirements reduce the plat's fire risks:
There is adopted by the City Council of the City, pursuant to the provisions of
RCW 35.21.289 and Chapter 19.27 RCW, for the purpose of prescribing
regulations governing conditions hazardous to life and property from fire or
explosion, that certain code and standards known as the International Fire Code,
... as amended by the Washington State Building Code Council and published as
Chapters 51-34 and 51-35 WAC, ... are adopted...24
Based on the record provided, the Fire Department can provide fire service to the plat
consistent with how it currently provides service throughout the City. And, to minimize fire
risks, and the need for such services, plat development must comply with the fire code. If a fire
station should be added to serve the area west of Road 100, then then this is a broader issue for
the City rather than being the responsibility of a single project.
2' A fee amount of$390 was proposed for SEPA purposes, but nothing was provided (in either the SEPA or plat
record) showing how this figure was calculated. No such mitigation was requested for an adjacent plat, which the
Examiner also held a hearing on,on December 9.
22 City Fire Department comment(December 21,2020).
23 Typically that comment is received not after a plat hearing,but during the notice of application and/or SEPA
comment periods.That allows an applicant sufficient time to address concerns.Here,no such comments were
submitted.
24 PMC 16.65.010(1).
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3.14 Staff Report/Conditions. To ensure project development consistent with City
requirements and findings, the Department's proposed conditions should be imposed, largely
without substantive revision. The Condition 7 phrase holding up plat finalization until the fire
station is built, is removed. Also, the MDNS date reference in Condition 6 requires correction
from July to June. The preliminary plat is subject to all PMC requirements, including code time
limits for submitting the final plat and completing required improvements. Except as this
Decision revises it, the updated Staff Report is incorporated.
II. CONCLUSIONS
1. SEPA Appeal. The Examiner has jurisdiction over the SEPA appeal 25 The
Appellant has the burden of proof, with "substantial weight" owed to the decision maker.26 The
traffic impact analysis condition is moot, and the fire mitigation fee condition is not sustainable.
A local authority does have broad authority to address mitigation issues through SEPA, but the
statute does include certain basic requirements for imposing mitigation.
Any governmental action may be conditioned or denied pursuant to this chapter:
PROVIDED, That such conditions or denials shall be based upon policies
identified by the appropriate governmental authority and incorporated into
regulations, plans, or codes which are formally designated by the agency (or
appropriate legislative body, in the case of local government) as possible bases for
the exercise of authority pursuant to this chapter. ... Such action may be
conditioned only to mitigate specific adverse environmental impacts which
are identified in the environmental documents prepared under this chapter.
... Mitigation measures shall be reasonable and capable of being accomplished.27
The project impact was not specifically identified in the MDNS, and no SEPA policy
identified. The Appellant met its burden of proof, and overcame the substantial deference owed
the decision maker in a SEPA appeal, as no evidence supporting the condition was provided.
Even if the Examiner could admit the additional materials on fire impacts for SEPA purposes,28
they do not support the condition. SEPA requires the impact be specifically addressed and the
SEPA policy identified.29 The materials do not do that, providing only generalized information.
There must be a SEPA impact to mitigate. With or without the post-hearing materials, one was
not identified. The MDNS does not meet these requirements.
2. Preliminary Plat. The Examiner may approve a preliminary plat if:
(1) Adequate provisions are made for the public health, safety and general
welfare and for open spaces, drainage ways, streets, alleys, other public ways,
water supplies, sanitary wastes, parks, playgrounds, transit stops, schools and
21 PMC 23.35.070.
26 RCW 43.21C.075(3)(d);PMC 23.35.070(5).
27 RCW 43.21C.060;WAC 197-11-660.
28 Even if admitted,the materials submitted do not sufficiently support the fee. However,these materials are
addressed in the plat section of this Decision only.
29 RCW 43.21C.060.
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school grounds, sidewalks for safe walking conditions for students and other
public needs;
(2) The proposed subdivision contributes to the orderly development and land
use patterns in the area;
(3) The proposed subdivision conforms to the policies, maps and narrative
text of the Comprehensive Plan;
(4) The proposed subdivision conforms to the general purposes of any
applicable policies or plans which have been adopted by the City Council;
(5) The proposed subdivision conforms to the general purposes of this title;
(6) The public use and interest will be served by approval of the proposed
subdivision. °
As the Findings and Staff Report detail, the preliminary plat is consistent with these
criteria and should be approved. This conclusion is based on compliance with City engineering
and street improvement requirements, and payment of all code required traffic, school, and park
impact fees. This, coupled with required improvements and code compliance, adequately
provides for open space, drainage, public ways, water and waste, parks, transit, schools, and
sidewalks for safe walking conditions. As these issues are addressed, adequate provision is made
for the public health, safety and welfare, and the plat will contribute to the orderly development
of the area. As the Staff Report addresses, as mitigated the plat is consistent with the
Comprehensive Plan, and conforms to City adopted policies, Title 21 purposes, and serves the
public use and interest.
DECISION
The Hearing Examiner grants the appeal with respect to the fire mitigation fee condition,
which is stricken, and finds the appeal moot with respect to the traffic impact analysis condition.
As the SEPA determination otherwise stands, the Examiner approves the preliminary plat,
subject to these conditions:
1. All improvements shall be in accordance to the Pasco Municipal Code. The Pasco
Municipal Code adopts the most recent versions of the City of Pasco Standard
Specifications, the Washington State Department of Transportation Standard
Specifications for Road, Bridges, and Municipal Construction, the International Building
Code, and the International Fire Code. If there are any conflicting regulations in any of
these documents, the more stringent regulation shall apply.
2. The face of the plat shall include this statement: "As a condition of approval of this
preliminary plat the owner waives the right to protest the formation of a Local
so PMC 21.25.060.
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Improvement District for sewer/water/road/sidewalk improvements to the full extent as
permitted by RCW 35.43.182.
3. Any existing water rights associated with the subject property shall be transferred to the
City as a condition of approval. If no water rights are available then the property owner,
in accordance with PMC 21.05.120, shall pay to the City, in lieu thereof, a water rights
acquisition fee as established in the City Fee Summary Ordinance as identified in PMC
3.35.
4. Only City and other utilities with franchise agreements compliant with the Pasco Design
and Construction Standards are allowed in the public right of way. Overhead utilities
shall be placed underground.
5. It shall be the responsibility of the property owner/developer to contact all utility owners
to determine their system improvement requirements. Prior to subdivision construction
plan submittal and/or review, the property owner/developer shall provide to the City of
Pasco written support/approval of the proposed development from all outside utilities,
public and private.
6. Completion of Inadvertent Discovery Protocol as indicated in the SEPA Determination
(MDNS) issued 6/26/2020.
7. Final Plat shall not be approved until availability of sewer utilities (Northwest Sewer
LID).
The final plat must be submitted within code time limits.31 While clarification may be
requested, absent a timely appeal,this Decision is final.32
DECISION entered December 30, 2020.
City of Pasco HetwinjlScaminer
Susan Elizabeth Drummond
31 See PMC 21.30.010(five years to submit final plat).
sz See Ch.36.700 RCW(establishing 21 day appeal period to superior court,and setting forth necessary petition for
review contents,along with filing and service requirements).
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