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  1. #1
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    Jan 2017
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    Default Appeal to Health Officer

    I submitted a private well variance application to local Health Department to reduce 100 ft radius sanitary control areas because my property is only 100 ft wide, and the sanitary control area will cross the neighboring properties. The variance was first approved on 10/24/2019 with 15 calendar days appeal period. The neighbor on east submitted an appeal on 11/12/2019, which missed the appeal deadline. However, the Health Officer put my well application on hold and told me try to avoid crossing the neighboring property. Eventually, he denied my variance application on 5/21/2020. Now I have 15 calendar days to appeal his decision.

    Can I appeal his decision based on that the neighbor's appeal was submitted late and thus not a valid appeal? If so, can I announce my motion to dismiss the denial order at the beginning of the hearing. What process and language should I use at the hearing?

    Thanks a lot.

  2. #2
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    Mar 2013
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    Default Re: Appeal to Health Officer

    Can I appeal his decision based on that the neighbor's appeal was submitted late and thus not a valid appeal?
    You could but I doubt that you will succeed with a technicality. Courts are being very liberal when it comes to delays thanks to the virus crisis. Your court may very well excuse the neighbor's delay. Then it'll be too late to back pedal into something else.

    can I announce my motion to dismiss the denial order at the beginning of the hearing. What process and language should I use at the hearing?
    Beats me. I have no knowledge of where you are or what your local procedures are and I doubt that anybody else does.

    This appears to be a major property issue and a potentially expensive one so I suggest that you consult an attorney ASAP. You already got it wrong once. Don't risk getting it wrong again.

  3. #3
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    Oct 2014
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    Default Re: Appeal to Health Officer

    Quote Quoting hhh4567
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    Can I appeal his decision based on that the neighbor's appeal was submitted late and thus not a valid appeal? If so, can I announce my motion to dismiss the denial order at the beginning of the hearing. What process and language should I use at the hearing?
    What state and locality? The rules vary from state to state and sometimes from one locality to the next within a state.

    Quote Quoting adjusterjack
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    You could but I doubt that you will succeed with a technicality. Courts are being very liberal when it comes to delays thanks to the virus crisis. Your court may very well excuse the neighbor's delay. Then it'll be too late to back pedal into something else.
    Note that the neighbor's appeal was submitted back in November. So the neighbor certainly cannot rely on the pandemic to excuse his delay. Whether that late filing is something that would give the OP the opportunity to get the health officer'd denial reversed depends on what the rules are for this process which we don't know since we don't where this is taking place. In any event nothing prevents the OP from making the motion and, should he lose, have a case to argue on the merits at the hearing. He/she should be prepared to do both. Then there would be no need to "back pedal into something else."

  4. #4
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    Default Re: Appeal to Health Officer

    Thanks for your help adjusterjack and Taxing Matters.

    I am in Washington State. Should I announce the motion in the beginning of the hearing? "Motion to reverse Health Officer's denial order" Is this the right legal term?

    The west neighbor's appeal states that the well might restrict the use of his property, and decrease the value of his property. (I actually submitted a hydrogeologic assessment report stating no restriction should be placed on the neighboring properties) The Health Officer's denial order states that the well should be sited on the east property line to avoid crossing the west neighbor's property because I own the east neighboring property as well. My argument would be that the officer should consider lot by lot per code regardless who owns the lots. In this case the officer is considering two lots owned by one owner as one lot, which is not code. Another argument is that the denial order was not actually based on the neighbor's appeal because the neighbor did not mention that I own both lots and should keep the 100 ft well radius sanitary control areas completely on my properties.

    Taxing Matters, could you please explain more about "have a case to argue on the merits at the hearing"?

    Thanks.

  5. #5
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    Default Re: Appeal to Health Officer

    Quote Quoting hhh4567
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    Thanks for your help adjusterjack and Taxing Matters.

    I am in Washington State. Should I announce the motion in the beginning of the hearing? "Motion to reverse Health Officer's denial order" Is this the right legal term?
    Should I assume that you are before either a Board of Health or a Board of Adjustment hearing? If so, you don't move to dismiss the Health Officer's denial. This is not a trial before a court. You appeal the denial by presenting your case based on the facts, what the Officer has ruled on similar situations and if his decision makes your property a non-buildable lot. That will take some research on your part to know if the denial is arbitrary and capricious. The health officer reviewed you application and approved it. What was that based on before he denied it? What weight is he giving the neighbor's objection and why?

    Quote Quoting hhh4567
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    The west neighbor's appeal states that the well might restrict the use of his property, and decrease the value of his property. (I actually submitted a hydrogeologic assessment report stating no restriction should be placed on the neighboring properties).
    How much of your neighbor's property is involved, a few feet, 10 feet, more? Your initial approves didn't make it a condition of approval that you obtain an easement from your neighbor did it? Under what situation is your neighbor claiming that it restricts the use of his property? Is this development on sewers or septic systems?

    Quote Quoting hhh4567
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    The Health Officer's denial order states that the well should be sited on the east property line to avoid crossing the west neighbor's property because I own the east neighboring property as well. My argument would be that the officer should consider lot by lot per code regardless who owns the lots. In this case the officer is considering two lots owned by one owner as one lot, which is not code..
    This could be a problem for you. Most jurisdictions require (by zoning ordnances) that when there are two (or more) lots that are contiguous and owned by the same owner and any of those lots cannot meet zoning as a single lot, two or more lots will be merged. And in that case, you would not be entitled to a variance.

    Quote Quoting hhh4567
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    Another argument is that the denial order was not actually based on the neighbor's appeal because the neighbor did not mention that I own both lots and should keep the 100 ft well radius sanitary control areas completely on my properties.
    So after your neighbor appealed and the health officer reviewed the case and recognizes that you own contiguous lots, he denies the application as submitted. I suspect he missed that fact on first review.

    Good luck.

  6. #6
    Join Date
    Jan 2017
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    6

    Default Re: Appeal to Health Officer

    Should I assume that you are before either a Board of Health or a Board of Adjustment hearing? If so, you don't move to dismiss the Health Officer's denial. This is not a trial before a court. You appeal the denial by presenting your case based on the facts, what the Officer has ruled on similar situations and if his decision makes your property a non-buildable lot. That will take some research on your part to know if the denial is arbitrary and capricious. The health officer reviewed you application and approved it. What was that based on before he denied it? What weight is he giving the neighbor's objection and why?
    I think it is Board of Health. It will be very hard to find similar cases because of lack of public information and personal service is suspended at the Health Department. My application was initially approved per current code. As I said earlier, I do not think the denial order was related to the neighbor's objection.


    How much of your neighbor's property is involved, a few feet, 10 feet, more? Your initial approves didn't make it a condition of approval that you obtain an easement from your neighbor did it? Under what situation is your neighbor claiming that it restricts the use of his property? Is this development on sewers or septic systems?
    About 75'x 150'. The neighbor refused to sign a restrictive covenant at the beginning. Then I hired a hydrogeologist prepared a report suggesting 30 ft surface seal, which will avoid restrictions on the neighbor's property. This is a typical procedure to drill a well on a smaller lot.

    This could be a problem for you. Most jurisdictions require (by zoning ordnances) that when there are two (or more) lots that are contiguous and owned by the same owner and any of those lots cannot meet zoning as a single lot, two or more lots will be merged. And in that case, you would not be entitled to a variance.
    Not in my County.

    So after your neighbor appealed and the health officer reviewed the case and recognizes that you own contiguous lots, he denies the application as submitted. I suspect he missed that fact on first review.
    The health officer knew I own both lots at the beginning.

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