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HomeMy WebLinkAbout2534 SEPA Code ComplianceOrdinance No. ,~..5'-~¢ AN ORDINANCE OF THE CITY OF PORT TOWNSEND AMENDING CHAPTER 19.04, STATE ENVIRONMENTAL POLICY ACT, OF THE PORT TOWNSEND MUNICIPAL CODE TO BRING THE CITY'S SEPA CODE REQUIREMENTS INTO COMPLIANCE WITH THE REGULATORY REFORM ACT, RCW 36.70B WHEREAS, the Growth Management Act CGMA') requires that environmental review and the permit process be integrated at the project level; and WHEREAS, one of the purposes of the Regulatory Reform Act, ESHB 1724 (Chapter 36.70B RCW), is to ensure that local jurisdictions planning under the GMA do not duplicate requirements for environmental analysis and mitigation of environmental impacts of a proposed project that exist in different land use and environmental laws; and WHEREAS, under RCW 36.70B, the City is required to identify early in the process the existing environmental documents that evaluate the impacts of the proposed project, and use its supplemental authority under SEPA to the extent existing requirements do not adequately address specific probable significant adverse environmental impacts; and WHEREAS, under RCW 36.70B, project-level review is to be used to review and document consistency between the proposed project and applicable regulations and the comprehensive plan, and to provide prompt and coordinated review of compliance with applicable environmental laws and plans, including mitigation for site-specific impacts; and WHEREAS, to comply with the Regulatory Reform Act, the City adopted a new Chapter 20.01 PTMC, by Ordinance No. 2521, Land Development Administrative Procedures, which establishes a uniform process for processing and appealing all land use permit applications and decisions; and WHEREAS, the City desires to amend its SEPA ordinance consistent with Chapter 20.01 PTMC and the mandates of the GMA and RCW 36.70B, NOW, THEREFORE, the City COuncil of the City of Port Townsend does ordain as follows: ~ Chapter 19.04, State Environmental Policy Act, of the Port Townsend Municipal Code is hereby amended to read as follows: Title 19 ENVIRONMENTAL PROTECTION Chapters: 19.04 19.05 State Environmental Policy Act Environmentally Sensitive Areas Chapter 19.04 STATE ENVIRONMENTAL POLICY ACT Sections: Article I. General Provisions 19.04.010 Authority. 19.04.020 Definitions. 19.04.030 Additional definitions. Article II. General Requirements 19.04.040 Adoption by reference. 19.04.050 Designation of responSible official - Responsibilities. 19.04.060 Transfer of lead agency status to a state agency. 19.04.070 Timing of environmental review process. Article III. Categorical Exemptions and Threshold Determination 19.04.080 19.04.090 19.04.095 19.04.100 19.04.110 19.04.120 Adoption by reference. Use of exemptions. Planned Actions. Environmental checklist. Threshold determination. Mitigated determination of nonsignificance (MDNS). Article IV. Environmental Impact Statements (EIS) 19.04.130 Adoption by reference. 19.04.140 EIS preparation - Additional considerations. 19.04.150 Relationship of EIS to other considerations. 19.04.160 When environmental review has previously been completed. Article V. Environmentally Sensitive Areas (ESA) 19.04.170 Defined. 19.04.180 Environmentally sensitive area goals and policies. 19.04.190 Environmentally sensitive area determination. 19.04.200 Categorically exempt determination. Article VI. Commenting 19.04.210 Adoption by reference. 19.04.220 Public notice. 19.04.230 Designated official to perform consulted agency responsibilities. 19.04.240 Public hearings under WAC 197-11-535(2). Article VII. SEPA Decision Making Authority, Use of Existing Documents and Appeals 2 / 19.04.250 19204.260 19.04.270 19.04.280 Adoption by reference. Substantive authority. Cumulative effects policy. Appeals. Article VIII. Fees, Violations, Penalties and Severability 19.04.290 Fees. 19.04.300 Violations and penalties. 19,04.310 Severability. Article I. General Provisions 19.04.010 Authority. The city adopts the ordinance codified in this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C. 120 and the SEPA rules, WAC 197-11-904. This chapter contains this city's SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. (Ord. 2367 § 1, 1993). 19.04.020 Definitions. This section contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by PTMC 19.04.030: WAC 197-11-700 Definitions. 197-11-702 Act. 197-11-704 Action. 197-11-706 Addendum. 197-11-708 Adoption. 197-11-710 Affected tribe. 197-11-712 Affecting. 197-11-714 Agency. 197-11-716 Applicant. 197-11-718 Built environment. 197-11-720 Categorical exemption. 197-11-722 Consolidated appeal. 197-11-724 Consulted agency. 197-11-726 Cost-benefit analysis. 197-11-728 County/city. 197-11-730 Decisionmaker. 197-11-732 Departments. 197-11-734 Determination of nonsignificance (DNS). 3 Ord.~,~,~.~Z/t 197-11-736 197-11-738 197-11-740 197-11-742 197-11-744 197-11-746 197-11-748 197-11-750 197-11-752 197-11-754 197-11-756 197-11-758 197-11-760 197-11-762 197-11-764 197-11-766 197-11-768 197-11-770 197-11-772 197-11-774 197-11-776 197-11-778 197-11-780 197-11-782 197-11-784 197-11-786 197-11-788 197-11-790 197-11-792 197-11-793 197-11-794 197-11-796 197-11-797 197-11-799 Determination of significance (DS). Environmental Environment. Environmental Environmental Environmental impact statement (EIS). checklist. document. review. Environmentally sensitive area. Expanded scoping. Impacts. Incorporation by reference. Lands covered by water. Lead agency. License. Local agency. Major action. Mitigated DNS. Mitigation. Natural environment. NEPA. Nonproject. Phased review. Preparation. Private project. Probable. Proposal. Reasonable alternative. Responsible official. SEPA. Scope. Scoping. Significant. State agency. Threshold determination. Underlying governmental action. (Ord. 2367 § 1, 1993). 19.04.030 Additional definitions. In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this chapter, the following terms shall have the following meanings, unless the context indicates otherwise: A. "City" means the city of Port Townsend. 4 Ord. B. "City department" means any division, subdivision or organizational unit of the city established by ordinance, rule or order. C. "Council" means the Port Townsend city council. D. "Days" shall mean calendar days. E. "Early notice" means the city's response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant's proposal. F. "Ordinance" means the ordinance, resolution or other procedure used by the city to adopt regulatory requirements. G. "SEPA rules" means Chapter 197-11 WAC adopted by the Department of Ecology. H. "state" means Washington State. I. "Director" means the building and community 'development (BCD) director of the city, and/or his/her designee. In any and all ordinances, resolutions, contracts, agreements, environmental determinations, or other documents adopted prior to the effective date of the ordinance codified in this section, the title "director of planning and building, .... planning director" or similar designation shall also mean "director of building and community development." J. "Lead department or department" means the planning aJad building BCD department which has the primary responsibility for SEPA staffing and analysis and making the decision or final administrative recommendation on a proposal. K. '"Proponent" means an agency or private applicant proposing an action subject to SEPA. For purposes of agency contact, the proponent means the contact person on the environmental checklist, or agent designated for that purpose by the agency or private applicant. In addition, the definitions contained in PTMC Chapter 20.01, "Land Development Administrative Procedures" shall apply to this chapter. (Ord. __ § 1, 1996; Ord. 2427 § 3, 1994; Ord. 2367 § 1, 1993). Article II. General Requirements 19.04.040 Adoption by reference. This article contains the basic requirements that apply to the SEPA process. Included is the designation of a responsible official and lead agency. The city adopts the following sections of Chapter 197-11 WAC bY reference, as supplemented in this article: S Ord. WAC agency, 197-11-040 197-11-050 197-11-055 197-11-060 197-11-070 197-11-080 197-11-090 197-11-100 197-11-900 197-11-902 197-11-916 197-11-920 197-11-922 197-11-924 197-11-926 197-1~-928 197-11-930 197-11-932 when one of Definitions. Lead agency. Timing of the SEPA process. Content of environmental review. Limitations on actions during SEPA process. Incomplete or unavailable information. Supporting documents. Information required of applicants. Purpose of this part. Agency SEPA policies.. Application to ongoing actions. Agencies with environmental expertise. Lead agency rules. Determining the lead agency. Lead agency for governmental proposals. Lead agency for public and private proposals. Lead agency for private projects with one agency with jurisdiction. Lead agency for private projects requiring licenses from more than one the agencies is a county/city. 197-11-934 Lead agency not a county/city, and one or more 197-11-936 Lead agency sta~agency. 197-11-938 197-11-940 197-11-942 197-11-944 197-11-946 197-11-948 for private projects requiring licenses from a local agency, state agencies. for private projects requiring licenses from more than one Lead agencies for specific proposals. Transfer of lead agency status to a state agency. Agreements on lead agency status. Agreements on division of lead agency duties. DOE resolution of lead agency disputes. Assumption of lead agency status. (Ord. 2367 § 2, 1993). 19.04.050 Designation of responsible official - Responsibilities. A. For those proposals for which the city is the lead agency, the responsible official shall be the director. The responsible official shall: 1. Perform all duties of the responsible official under SEPA and the SEPA rules and this code; 2. Perform all duties required to be performed by the city under SEPA, including the provision of coordination with the appropriate state and federal agencies; 3. Determine whether proposals are categorically exempt under SEPA; 4. Make the threshold determination on all proposals that are subject to SEPA; 5. Supervise the preparation of all draft and final environmental impact 6 Ord. statements and supplemental environmental impact statements; 6. Establish procedures as needed for the preparation of environmental documents, including environmental impact, statements; 7. Supervise the response of the city when the city is a consulted agency, and ensure that city responses to consultation requests are prepared in a timely manner and include data from ail appropriate city departments; 8. Determine the lead agency as mandated by the SEPA rules; 9. Recommend procedures and criteria to the council for determining fees to be charged for compliance with SEPA requirements; 10. Maintain an inventory of significant environmental data and maps of environmentally sensitive areas; 11. Provide information to citizens, proponents and others concerning SEPA and this code; 12. Monitor and report on legislation and issues involving environmental matters to the council and affected departments. B. The director may obtain third party review on city-initiated proposais to review and comment on such proposals. (Ord. 2367 § 2, 1993). 19.04.060 Transfer of lead agency status to a state agency. For any proposal for a private project where the city would be the lead agency and for which one or more agencies have jurisdiction, the city's responsible.officiai may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shail be the lead agency and the city shail be an agency with jurisdiction. To transfer lead agency duties, the city's responsible officiai must transmit a notice of the transfer together with any relevant information available on the proposai to the appropriate state agency with jurisdiction. The responsible officiai of the city shall aiso give notice of the transfer to the private applicant and other agencies with jurisdiction over the proposai. (Ord. 2367 § 2, 1993). 19.04.070 Timing of environmental review process. A. The timing of the environmental reView process shall be determined based on the criteria in the SEPA rules and this code. B. For city-initiated proposals, the initiating department should contact the director or his/her designee at initiai proposal formulation to integrate environmental concerns into the early stage of the decision-making process. C. For city-initiated development projects, the initiating department shail not be the responsible officiai on that project. D. For proposais subject to SEPA, the procedural requirements of SEPA and this code shail be completed prior to the city's issuance of a permit, committing to a particular course of action, or taking action that would either have an adverse environmental impact, or limit the choice of reasonable aiternatives. 7 Ord. ,~,~-'-~ E. No threshold determination is final until expiration of the administrative appeal period following publication of the threshold determination, if not appealed, or, if appealed, until the decision on the administrative appeal becomes final. However, if there is a comment period required by WAC 197-11-340 and no request for withdrawal, modification Or appeal of the determination is submitted within the 15-day period, the threshold determination is final at the end of the 15-day comment period and there is no administrative appeal period. F. For nonexempt proposals, the DNS or final EIS for the proposal should accompany the city's staff recommendation to any appropriate advisory body, such as the planning commission. However, failure to do so shall not result in noncompliance with SEPA or this code. G. If the city's only action on a propOsal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to the submission of the detailed plans and specifications. However, the city may require sufficient information to be provided pursuant to the SEPA rules to allow a meaningful environmental review to be conducted. (Ord. 2367 § 2, 1993). Article III. Categorical Exemptions and Threshold Determination 19.04.080 Adoption by reference. This article contains rules for deciding whether a proposal is exempt under SEPA or has a "probable significant, adverse environmental impact" requiring an environmental impact statement (EIS) to be prepared. This article also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections by reference as supplemented in this article: WAC 197-11-220 197-11-300 197-11-305 197-11-310 197-11-315 197-11-330 197-11-335 197-11-340 SEPA/GMA Inteeration. SEPA/GMA Definitions. Overall SEPA/GMA Integration Procedures. Timing of an integrated SEPA/GMA process, SEPA/GMA integration procedures for preliminary, planning, environmental analysis, and expanded scoping. Documents. Purpose of this part. Categorical exemptions. Threshold determination required. Environmental checklist. Threshold determination process. Additional information. Determination of nonsignificance (DNS). Ord. (Ord. 197-11-350 197-11-360 197-11-390 197-11-800 197-11-880 197-11-890 Mitigated DNS. Determination of significance (DS)/initiation of scoping. Effect of threshold determination. Categorical exemptions. Emergencies. Petitioning DOE to change exemptions. __ § 1, 1996; Ord. 2367 § 2, 1993). 19.04.090 Use of exemptions.' A. Upon receipt of an application for a proposal, and for city proposals, the responsible official shall determine whether the proposal is an action potentially subject to SEPA and,. if ' so, whether it is categorically exempt. This determination shall be made based on the definition of action (WAC 197-11-704), the process for determining categorical exemption (WAC 197-11-305) and the designation of environmentally sensitive areas under PTMC 19.04:160. The responsible official's determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter applies to the proposal. WAC 197-11-$00. The city shall not require completion of an environmental checklist for an exempt proposal, unless the proposal would have a probable significant adverse environmental impact or a checklist should be prepared to be consistent with WAC 197-11-305. B. In determining whether or not a proposal is exempt, the responsible official shall make certain the proposal is properly defined and shall identify the governmental permit or license required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the responsible official shall determine the lead agency, even if the license application that triggers the responsible official's consideration is exempt. C. If a proposal includes both exempt and nonexempt actions, the responsible official may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that: 1. The responsible official shall not give authorization for: a. Any nonexempt action, b. Any action that would have an adverse environmental impact, or c. Any action that would limit the choice of alternatives; 2. The responsible official may withhold approval of an exempt action that would lead to modification of the physical environment, when modifications would serve no purpose if the nonexempt action(s) were not approved; and 3. The responsible official may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved. (Ord. ~ § 1, 1996; Ord. 2367 § 3, 1993). 9 Ord. 19.04.095. Planned Actions. A. In designating a planned action, the city must first make a preliminary. determination that the statutory, requirements for a planned action, identified below, will be met. The second stet> occurs when the citY receives an a~r~plication for a planned action. The City must confirm that the application meets the requirements for a planned action. This includes identifying the significant site-sp~ific impacts of the pro~r~sed planned action and ensuring that those impacts were adequately addressed in one of the t._vpes of EIS's mentioned in subsection (B)(2) below. If the significant site-s_r~cific impacts have been adequately addressed in a prior EIS, no threshold determination or EIS is required. However, the proposed planned action remains subject to environmental review under SEPA for any site- specific impacts identified in the project submitted and not adequatelY addressed in the prior EIS, and the imposition of mitigation measures as project conditions, B. Pursuant to RCW 43.21C.031(2), a "planned action" must meet the following rex~uirements; the city council; Be designated a planned action by an ordinance or resolUtion adoptexl Dy 2. Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with: 36.70A RCW, or a comprehensive plan or subarea plan adopted under chapter b. a fully contained community, a master planned resort, a master planned development or a phased project; 3. Be a subsequent or implementing project for a comprehensive Plan or subarea plan, or a fully contained community, master planned resort, master planne~l development or a phased project; Be located within an urban grOwth area, as defined in RCW 36.70A.030, or a master planned res°rt; 5. Not be essential public facilities, as defined in RCW 36.70A.200; and 6. Be consistent with the City's comprehensive plan or subarea plan adopted under chapter 36.70A RCW. C. Limitations on Planned Actions.~ The City shall limit planned actions to certain types of development or to s~t~cific geographical areas that are less extensive tharl the 10 ord..~,_5'-3~/ jurisdictional boundaries of the City, and may limit a planned action to a time period identified in the environmental impact statement or the adoption of the ordinance or resolution designating the planned action. (Ord.__ § 1, 1996.) 19.04.100 Environmental checklist. A. A completed environmental checklist in the form provided in WAC 197-.11-960 shall be filed at the same time as an application for a permit, license, certificate or other approval not specifically exempted in this chapter. ^ checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed or SEPA compliance has been initiated by another agency. The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, for making the threshold determination. B. The items in the environmental checklist are not weighted. The mention of one or many adverse environmental impacts does not necessarily mean that the impacts are significant. Conversely, a single probable significant adverse impact on the environment may result in the need for an EIS. C. For private proposals, the city will require the applicant to complete the environmental checklist, providing assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal. D. 1. The city may decide to complete all or part of the environmental checklist or amendments to the environmental checklist, for a private proposal, if either of the following occurs: a. The city has technical information on a question(s) that is unavailable to the private applicant; or b. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. 2. For either subsections (D)(1) or (D)(2) of this section, the city shall require the applicant to pay fees for the amount of city staff time necessary for its activities in accordance with the provisions of this chapter. (Ord. 2367 § 3, 1993). 19.04.110 Threshold determination. A. The responsible official shall make the threshold determination and issue a determination of nonsignificance (DNS), mitigated determination of nonsignificance (MDNS), or determination of significance (DS). The responsible official shall make a threshold determination in accordance with applicable sections of the SEPA rules, as adopted by this code, and with the consistency and integration requirements set forth in Chapters 20.01.130 and. 140. In addition to giving any notice required under the SEPA rules, or this code, the responsible official shall notify the proponent or lead department on the date of the threshold determination upon its issuance. 11 Ord.,~..5'-.~r/ B. Each threshold determination shall be ~ noticed in accordance with PTMC 19 04 220 ~' ....... ' ......... : .... -' ...... appealabl~ as --' ~'--~- '- ?TMC 4,, ,,~ ,,,.^ C. The threshold determination shall be processed within the time lines set forth in Chapter 20.01 PTMC for Types I, II and III permits, unless specifically exempted from Chapter 20.01, and subject to the following: e 1. Time estimates for processing environmental checklists apply when the city processes licenses or permits for all private proposals and those governmental proposals submitted to the city by other agencies. The actual time may vary with the complexity of the project, availability of staff, cooperation of agencies with jurisdiction or expertise, etc.; however, pursuant to statutory requirements, the city shall complete all threshold determinations within 90 days after receiving both an environmental checklist which is found by staff to be complete and after receipt of a complete application for any associated actions. Threshold determinations are aooealable as set forth in PTMC 19.04.280. (Ord. ~ { 1, 1996; Ord. 2367 { 3, 1993). 19.04.120 Mitigated determination of nonsignificance (MDNS). A. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to or clarifications of the proposal made by the applicant. B. An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must: 1. Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the city is lead agency; and 2. Precede the city's threshold determination for the proposal. C. The responsible official should respond to the request for early notice as soon as possible after the time the department receives such a request. The response shall: 1. Be written; 2. State whether the city currently considers issuance of a DS likely and, if so, indicate the areas of concern that are leading the city to consider a DS; and 3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes. D. As much as possible, the city should assist the applicant with identification of impacts to formulate mitigation measures. E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city shall base its threshold determination on the revised proposal, unless the director deems the revised proposal to be a new application under PTMC 20 O1 llO(G~ and -' alll~gl all al lllalA.llll[llll, WlLIIIII 7K/ ~glal~)/;~ allkK;;l I~4..,K>IIJL ~.Jl al IG¥11~K:4.I IJl~k/IJ~Y~all. 1. If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant revised the proposal to include those specific mitigation measures, the city shall issue and circulate a DNS under WAC 197-11-340(2). 2. If the city indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate. 3. The applicant's proposed mitigation measures (clarifications, changes or conditions) must be in writing, and must be specific, feasible and enforceable. 4. Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents. F. A mitigated DNS is issued under WAC 197-11-340(2), requiring a 15-day comment period and public notice. G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city. H. If at any time the proposal (including associated mitigating measures) is substantially changed, the responsible official shall reevaluate the threshold determination and, if necessary, withdraw the DNS and issue a DS or new mitigated DNS, unless the director deems the proposal to be a new application under PTMC 20.01.110(G). Any questions regarding whether or not a change is substantial shall be determined by the responsible official. I. The city's written response under subsection B of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city to consider the clarifications or changes in its threshold determination. J. Posting of Conditions. The department shall prepare a list of all conditions placed on 13 Ord. a proposal, threshold determination or permit and shall assure that the proponent posts such conditions on the department's notice board in a conspicuous location on or near the subject property in a waterproof sleeve. (Ord. ~ § 1, 1996; Ord. 2367 § 3, 1993). Article IV. Environmental Impact Statements (EIS) 19.04.130 Adoption by reference. This article contains the rules for preparing environmental impact statements. The city adopts the following sections by reference, as supplemented by this article: WAC 197-11-400 197-11-402 197-11-405 197-11-406 197-11-408 197-11-410 197-11-420 197-11-425 197-11-430 197-11-435 197-11-440 197-11-442 197-11-443 197-11-444 197-11-448 197-11-450 197-11-455 197-11-460 Purpose of EIS. General requirements. EIS types. EIS timing. Scoping. Expanded scoping. EIS preparation. Style and size. Format. Cover letter or memo. EIS contents. Contents of EIS on nonproject proposals. EIS contents when prior nonproject EIS. Elements of the environment. Relationship of EIS to other considerations. Cost-benefit analysis. Issuance of DEIS. Issuance of FEIS. (Ord. 2367 § 4, 1993). 19.04.140 EIS preparation - Additional considerations. A. A draft environmental impact statement shall be completed within 365 days after issuance of the Determination of Significance. Additional time may be allowed, with the written concurrence of the applicant. All time rem. uired for the preparation and review of an EIS shall be excluded from the 120-day deadline of Chapter 20.01 PTMC for Types I, II and III projects. BPr. Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 14 Ord.,:,~ff',~4 197.11 WAC. CB. 1. The draft and final EIS and draft or final SEIS shall be prepared either by the city, the applicant or a consultant retained bY the applicant acting under direction and control of the responsible official. If the responsible official requires an EIS or SEIS for a proposal and determines that someone other than the city will prepare it, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city's procedure for EIS preparation including approval of the DEIS and FEIS prior to distribution. Applicants shall participate in the preparation of an EIS when written agreement is made between the city and applicant that authorizes: a. The applicant to prepare a draft and final EIS or SEIS; b. The applicant to retain a consultant for the preparation of a draft and final ElS or SEIS; SEIS. c. Joint preparation of a draft and final EIS or SEIS; or d. Joint retention of a consultant to prepare a draft and final EIS or 2. For city proposals, the EIS shall be prepared by a consultant or by city staff. 3. In all cases above, the consultant(s) naehhod of preparation shall be selected bv the city and "- . ,,~ ~,~,,_,,, the method of EIS or SEIS .preparation. shall be subject to the approval of the responsible official. 4. In the event the city and applicant determine the applicant will participate in the preparation of an EIS or SEIS, written agreement shall be made immediately after completion of the threshold determination or upon agreement by the city and applicant. DE. In the event an EIS or SEIS is to be prepared by an applicant or a consultant, the responsible official shall assure the EIS is prepared in a responsible' manner with appropriate methodology and by individuals with sufficient technical training and experience, in the judgment of the responsible official. The responsible official shall direct the areas of research and examination to be undertaken, as well as the organization of the resulting document. The responsible official shall also attempt to obtain any information needed by the party preparing the EIS that is on file with another agency or federal agency. The responsible official shall allow any private parties or retained consultants preparing any EIS or SEIS access to all public records of the lead agency that are relevant to the subject matter of the EIS. Services rendered by the director or other city staff shall be subject to collection of fees as described in Chapter 20.09 PTMC. 1~t9. In the event the responsible official or his or her designee is preparing an EIS or SEIS, the responsible official may require an applicant to provide data and information that is not in the possession of the city relevant to any or all areas to be covered by the EIS, including specific investigation. However, the applicant is not required to supply information that is not 15 Ord,,~',ff'..~q'/ required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.) FE. EIS Scope. An environmental impact statement is required to analyze those probable environmental impacts which are significant. Beneficial environmental impacts may be discussed. The director shall consult with agencies, affected tribes and the public to identify such impacts and limit the scope of an environmental impact statement in accordance with the applicable sections of the SEPA rules and with procedures set forth in subsection F of this section. The purpose of the scoping process is to narrow the scope of every EIS to the probable significant adverse impacts and reasonable alternatives including mitigation measures. _Cxl:*: Procedures for Scoping. 1. The director shall consult with agencies, affected tribes, and the public when determining the scope of an environmental impact statement by any or all of the following means. The specific method to be followed shall be determined on a proposal-by-proposal basis by the director, but at a minimum, shall include subsection (a) below: a. The director shall give notice that an EIS is to be prepared, which notice shall provide that agencies, affected tribes and the public may submit written comments on probable significant adverse impacts, reasonable alternatives, mitigation measures and licenses or other approvals that may be required; comments must be submitted to the director not later than 21 days from. the date of issuance of the determination of significance unless an expanded scoping process is to be used under WAC 197-11-410. Such notice shall be given as specified in PTMC 19.04.220. Additionally, notice may be sent to any individuals or community groups known by the responsible official to have a possible interest in the proposal. Notice of the intent to prepare an EIS and the opportunity for commenting on the scope thereof may be sent with other public notices concerning the project. b. The director may conduct a meeting to provide the opportunity for oral comment on the scope of the EIS. Notice of such meeting shall be published in a newspaper of general circulation at least seven days prior to the date of the meeting. The scoping meeting may be combined with other meetings or hearings concerning the proposal. c. The director may prepare or direct the EIS consultant to prepare a scoping questionnaire or information packet for distribution to interested parties, affected tribes and responsible public agencies for their response. 2. The appendix to the EIS shall include a summary of the issues raised during the scoping process and whether those issues have or have not been determined significant for analysis in the EIS. If a public meeting is held pursuant to this section, a tape of the meeting or a transcript thereof shall be included in the director's official file on the proposal, except that a tape or transcript is not required if an informal workshop is held. If an informal workshop is held, a written summary of the workshop shall be prepared. All written comments regarding the scope of the EIS shall be included in the proposal file. 3. The public and agency consultation process regarding the scope of the EIS shall occur within 30 days after the determination of significance is issued, unless the director and the proponent agree on a later date. HO. Consideration of Alternatives Including the Proposed Action. 1. The EIS shall contain reasonable alternatives which could feasibly attain or approximate a proposal's objectives, but at a lower environmental cost or decreased level of environmental degradation. a. The word "reasonable" is intended to limit the number and range of alternatives, as well as the amount of detailed analysis for each alternative. b. The "no-action" alternative shall be evaluated and compared to other alternatives. c. Reasonable alternatives may be those over which an agency with jurisdiction has authority to control impacts directly, or indirectly through requirement of mitigation measures. 2. When an EIS is prepared for a private proposal, the responsible official shall be involved in the formulation of the alternatives to be considered, and must approve the alternatives which are to be evaluated in the EIS. 3. The EIS shall devote sufficiently detailed analysis to each reasonable alternative to permit a comparative evaluation of the alternatives including the proposed action. The amount of space devoted to each alternative may vary. One alternative (including the proposed action) may be used as a benchmark for comparing alternatives. The EIS may indicate the main reasons for eliminating alternatives from detailed study. (Ord. __ § 1, 1996; Ord. 2367 § 4, 1993). 19.04.150 Relationship of EIS to other considerations. Pursuant to WAC 197-11-448 and 197-11-450, "socioeconomic" information is not required to be discussed in an EIS. However, the responsible official has the option to reference or append EISs with other documents, such as a cost-benefit analysis, or to include additional analysis in EISs to assist in making decisions (WAC 197-11-440(0 and 197-11-640). The responsible official should use the scoping process to help identify issues of concern to citizens. For the purposes of SEPA review, cost-benefit analysis should not be used in the weighing of the environmental merits and drawbacks of the various alternatives contained in an EIS. (Ord. 2367 § 4, 1993). 19.04.160 When environmental review has previously been completed. If a proponent indicates the proposal or a substantially similar proposal has previously complied with environmental review procedures, then documentation of this review must be provided. For those proposals .modified since the DNS or FEIS was issued or not explicitly covered in the prior environmental review, an environmental checklist must be submitted that references earlier environmental documents where appropriate. Alternatively, a copy of, or reference to, the prior environmental document with a cover letter identifying any changes or revisions may be submitted. In the latter case, other additional information may be required at the discretion of the responsible official. The responsible official shall determine whether a new threshold determination is required and whether existing environmental documents are adequate for the current proposal using the criteria of WAC 197-11-600. (Ord. 2367 § 4, 1993). Article V. Environmentally Sensitive Areas (ESA) 19.04.170 Defined. "Environmentally sensitive areas (ESA)" are those areas that are designated by the city under Chapter 19.05 PTMC that may have severe limitations to development or where development could severely impact the area. ESAs are designated and mapped in Chapter 19.05 PTMC and the definitions, designations and mapping contained in that chapter are incorporated into this chapter by reference. In designating and protecting environmentally sensitive areas, the city shall use the best available science, consistent with RCW 36.70A. 172. (Ord. § 1, 1996; Ord. 2367 § 5, 1993). 19.04.180 Environmentally sensitive area goals and policies. The following goals and policies shall apply to all nonexempt proposals located within ESA areas. Project approval shall be evaluated against these goals and policies, as well as those listed in PTMC 19.04.260 and 19.04.270. A. Goals. 1. To protect life and property from flooding, uneven settlement, landslides, erosion and other disruptions that may be associated with environmentally sensitive areas; 2. To recognize the unique natural constraints and characteristics of sensitive areas and to maintain or enhance the quality of such areas; 3. To avoid needless public and private costs from actions within environmentally sensitive areas resulting in negative impacts such as damage to life and property; 4. To promote public health, safety, and general welfare. B. Policies. In addition to the city policies identified in PTMC 19.04.240, all nonexempt projects located within an ESA shall be reviewed for compliance with the following policies: 1. Proposed actions within environmentally sensitive areas should be managed according to their compatibility with natural characteristics and constraints; 2. Property owners, prospective property owners, and the general public should be informed about the potential hazards in environmentally sensitive areas; 3. The existing vegetative cover should be maintained on all project sites to the greatest extent feasible. Where removal of Vegetation is necessary, a reasonable effort should be made to replant vegetative cover, stabilize the soil and prevent erosion; 4. Site restoration should be provided if land surface modifications violate these adopted policies or if construction does not ensue within a reasonable period of time; 5. All possible efforts should be made to ensure that land surface modifications would not induce excessive erosion, destabilize adjacent lands or scar the landscape; 6. The use of cluster design, proper surface water drainage, and other mitigative techniques should be used in an effort to avoid unsuitable lands and minimize hazards to life and property; 7. The watershed boundaries of publicly owned water supply systems and significant wetland areas should not be subjected to potential pollution sources; 8. The modification of wetland areas should be avoided; 9. Significant wildlife habitats designated as environmentally sensitive areas should be protected from deleterious effects of proposed actions; 10. Special consideration for project design should be given in areas of ponding, highly compressible soils or steep slopes; 11. In areas of former or active landslides and along slopes determined to be unstable, no land modification or related activities should occur without a favorable geologic investigation demonstrating that hazardous conditions do not exist or that mitigative techniques can be used to ensure safety to life and property. The geologic investigation should be prepared by a qualified soils engineer or engineering geologist. (Ord. 2367 § 5, 1993). 19.04.190 Environmentally sensitive area determination. A. The responsible official shall determine whether a proposal is located in an ESA using the maps process specified in Chapter 19.05 PTMC and cited in PTMC 19.04.160. B. Site-specific information concerning soils, geology, hydrology and other relevant data may be required of the applicant in making the determination. The applicant shall be responsible for the accuracy and validity of the information submitted on their behalf. (Ord. 2367 § 5, 1993). 19.04.200 Categorically exempt determination. An administrative review by the city shall determine if an action is categorically exempt from SEPA if the proposed action is within an environmentally sensitive area. (Ord. 2367 § 5, 1993). Article VI. Commenting 19.04.210 Adoption by reference. This section contains rules for consulting, commenting and responding on all environmental documents under SEPA, including rules for public notice and hearings. The city adopts the following sections by reference, as supplemented in this article: WAC 197-11-500 197-11-502 Purpose of this part. Inviting comment. '19 Ord. 197-11-504 197-11-508 197-11-535 197-11-545 197-11-550 197-11-560 197-11-570 Availability and cost of environmental documents. SEPA register. Public hearings and meetings. Effect of no comment. Specificity of comments. FEIS response to comments. Consulted agency costs to assist lead agency. (Ord. 2367 § 6, 1993). 19.04.220 Public notice. ~.IJIJII~,~iJ&IUII I~IUIIIII[ I. llli;; 1~1~ ~1 ~ LIIIGSIIOI~ ~Gg~IIIIIII~H~II~ ~1 ~H~IL L~ VY ~ 1 ~ I - 1 I-~ ~DII~III~ ~III~IIUI~ ~IIIIIII~IUII~ ~1~ UII~ ~U~ UI ~1 ~III~VI~ UI ~U~III~, IlID ~IU~UII~II~ ~11~1 LIII ¢~lluId o~c n aggn~auun f~. LIIIU~IIUIU UUkUllllllldtlOll tO tllU UUpdltlllUllt, ~11 UUIIIIIIUIIL3 I~UIV~ 311~1 pIUVIU~ LU tllU UUVUIUpIIIUIIt ~lllllt~ ~UIIUItlUIIa U~U ~lllllt~ UI IIUtI~U UI d pUllUlll[ ~Ulllllll3tldtlVU IUVlU~ 01 notice of a---'" ...... ' .......:--~ pursuant 1o "-- FTMC. ~UUII~ 11~1111[~ I~UII2 tllU 20 Ord. A. Notice of Application Requirements for Types I, II and III Projects. 1. Notice of Application Rex!uirements for Type I Projects Subject to SEPA. A Notice of Application, as set forth in Section 20.01.150 PTMC, shall not be required for Type I project permits that are categorically exempt under SEPA, unless a public comment period or an open record pre-decision hearing is required. 2. Notice of Application Requirements for Types II, and III Projects Subject to SEPA. For Types II and III projects, notice of the SEPA _vending threshold determination or the availability of the final environmental impact statement shall be provided in conjunction with the Notice of Application as set forth in the public notice provisions of Sections 20.01.150 through 180, PTMC. In addition, the Notice of Application shall be mailed to the latest real pro_r~erty owners of record within 300 feet of the boundary, of the property upon which the development is proposed. The applicant shall provide the list of property owner(s) of record to BCD. The records of the Jefferson County assessor's office or an adjacent property ownership list Prepared by a licensed title company shall be used for determining property owner(s) of record. Addresses for a mailed notice required by this section shall be obtained from the county's real property tax records. The BCD director shall issue a sworn certificate affirming mailing of notice to all persons entitled to notice under this section. All public notices shall be deemed to have been provided or received on the date the notice is deposited in the mail or personally delivered, whichever occurs first. t9 tl. '" ........ ' ......... ~' .......... '~' ...... Notice Reouirements for Threshold UIG gUI 11111 IdLIUI 1 1 'q Ol 1 ~1~ 1111 IL,~gl lt~,G Determination. 1. Timing of Threshold Determination. a. The City may not issue a threshold determination for Types I, II or III projects, except a determination of significance, until the expiration of the public comm¢llt period on the Notice of Application. b. Notice of the SEPA threshold environmental determination for 21 Ord. nonprOject actions (Type ¥ actions) shall be provided in conjunction with notification of the earliest hearing (e.g., planning commission). 2. Content of Notice/Comment Period. Whenever a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) is issued, public notice shall be given by the city as follows: ,.. in addition to the Nnotice of Application ~'-- a .&.~.,..,..~. ,,.,.,~,,.,,,, detetm'timt~m, the city shall provide notice atatillgll'e 1Ju°n~---c': ..... nuu~¢:--la: ......l~'luil~'u:--a luff'-__ ~t iiOil~X~>iiipt whether a DS, MDNS or DNS has b~n issu~ ~d when comments ~e due. 5. ~e public comment ~fi~ for SEPA threshold determinations is 15 c~d~ days. ~e res~nsible offici~ may extend ~e comment ~fiod where a pro~ has b~n modifi~ subsmfi~ly or information has b~n misrepresent~ or withheld in the ch~ist. ~ DNS and MDNS Notice Requirements. ~. Notice of the DNS7 or MDNS or DS shall be given by publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located. For those proposals listed in WAC 197- 11-360(2)(a), the responsible official shall send the DNS or MDNS and environmental checklist to agencies with jurisdiction, the (lepartme~t of ecology, and affecte..{J tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal. C. Additional Notice Requirements for a Determination of Significance, 1E. Scoping Procedure. Whenever a DS issued under WAC 197-11-360(3), the scoping procedure for the proposal shall be stated in the DS as required in WAC 197-11-408 and in the public notice, and as further set forth in Section 19.04.140 of this chapter. If a determination of significance has been made prior to or concurrently with the Notice of Application, the scoping notice shall be combined with the Notice of Application; provided. however, the responsible official may issue the scoping notice and the Determination of Significance prior to the Notice of Application. 2. For project actions requiring the preparation of an EIS, the determination of significance and scoping notice shall be mailed by first class mail to the applicant and property owner (if different from the a.Dplican0. Those parties who have submitted written comments on the project, excluding those who sign ~titions or mechanically provided form letters, shall receive notice of the draft and final EISs. 3F. Notice of DEIS or SEIS Availability. Whenever a DEIS is issued under WAC I97-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by indicating the availability of the DEIS in any public notice required for a nonexempt license or permit and using at least one of the following methods: 22 Ord. a-l:. Posting the property, for site-specific proposals; b~. Publishing notice in a newspaper of general circulation in the county, city or general area where the proposal is located; c~. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered; cl~. Notifying the news media; trade journals; ~5. Placing notices in appropriate regional, neighborhood, ethnic Or f6. Publishing notice in agency newsletters and/or sending notice to agency mailing .lists; official. g~/. Any other reasonable method deemed appropriate by the responsible I20. Integrated Notice and Permitting Procedures. Whenever possible, the city shall integrate the public notice required under this section with existing notice procedures for the city's nonexempt permit(s) or approval(s) required for the proposal, consistent with Chapter ity" .......... 20.01 PTMC. ~,,,~ ......................... put,,,,, ~.~,,,,,,,~,,~t-~,,'-,-,,~-' for pr ac~s requking u[,,~A ....... c ,~.~,,~, perini~s Ul Et-}. Cost of Notification for Additional Notices. For all notices not covered by the permit application fees set forth in Chapter 20.09 PTMC, the city will require an the applicant to complete the public notice requirements for the proposal at his or her expense. (Ord. __ § 1, 1996; Ord. 2367 § 6, 1993). 19.04.230 Designated official to perform consulted agency responsibilities. A. The city planning and biiildlng BCD director shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping and reviewing a DEIS. B. The director shall be responsible for the city's compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate city departments. (Ord. __ § _, 1996; Ord. 2367 § 6, 1993). 23 Ord. ~,.~-.~F_/" 19.04.240 Public hemqn~ ~ under WAC 197-11-535(2). When a public hearirrg meeting is held under WAC 197-11-535(2), such hearing ~ shall be heard before the responsible official. (Ord. __ § _, 1996; Ord. 2367 § 6, 1993). Article VII. SEPA Decision Making Authority, Use of Existing Documents and Appeals 19.04.250 Adoption by reference. This article contains rules and policies for SEPA's substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. Rules for using and supplementing existing environmental documents prepared under SEPA or the National Environmental Policy Act (N-EPA) for the city's own environmental compliance are also described. This section also describes procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following sections by reference: WAC 197-11-600 197-11-610 197-11-620 197-11-625 197-11-630 197-11-635 197-11-640 197-11-650 197-11-655 197-11-660 197-11-680 (Ord. 2367 § When to use existing environmental documents. Use of NEPA documents. Supplemental environmental impact statements - Procedures. Addenda - Procedures. Adoption - Procedures. Incorporation by reference - Procedures. Combining documents. Purpose of this part. Implementation. Substantive authority and mitigation. Appeals. 7, 1993). 19.04.260 Substantive authority. A. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city. B. The city may attach conditions to a permit or approval for a proposal so long as: 1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and 2. Such conditions are in writing; and 3. The mitigation measures included in such conditions are reasonable and capable of being accomplished; and 4. The city has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and 24 Ord. 5. Such conditions are based on one or more policies in subsection D of this section and identified in writing in the license, permit or other decision document; or 6. Conditions not based on one or more policies in subsection D of this section are voluntarily agreed upon by the proponent. C. The city may deny a permit or approval for a proposal on the basis of SEPA so long as: 1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this chapter; and 2. A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and 3. The denial is based on one or more policies identified in subsection D of this section and identified in writing in the decision document. D. The city designates and adopts by reference the following policies as the basis for the city's exercise of authority pursuant to this section: 1. The city shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs and resources to the end that the state and its citizens may: a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; b. Assure for all people of Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings; c. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; d. Preserve important historic, cultural and natural aspects of our national heritage; e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice; f. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. 2. The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. 3. The city adopts by reference the policies in the following city plans, resolutions, ordinances, standards and codes as they now exist or may hereafter be amended: thereto; a. City comprehensive plan and any amendments adopted pursuant b. City subdivision ordinance; c. Port Townsend Shoreline Management Master Program; d. City floodplain management ordinance; e. City building code ordinance; 25 Ord...~.5'-30r f. City road, traffic and circulation standards; g. City zoning ordinance; h. Port Townsend Urban Waterfront Plan; i. Field Report by the National Trust for Historic Preservation on the Water Street Historic District; j. The Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings; k. Port Townsend Streetscape Design Workbook (1987, adopted by Ordinance 2143, 1989); 1. Port Townsend Environmentally Sensitive Areas Ordinance, adopted as Chapter 19.05 PTMC; m. Port Townsend Gateway Development Plan and Concept Plan; n. All other city resolutions, ordinances, plans and guidelines effective now or after the date of the ordinance codified in this chapter. (Ord. 2367 § 7, 1993). 19.04.270 Cumulative effects policy. A. Policy Background. 1. There are over 11,000 platted lots, generally 50 by 100 feet, within the city. These lots were platted 75 to 100 years ago without respect to topography, environmental relationships or need for adequate provision of public urban services. Incremental development of a single lot or other action which by itself does not create undue impacts on the environment may create adverse impacts which require mitigation when combined with the cumulative effects of previous, simultaneous or subsequent developments within a given area. 2. An individual project may have an adverse impact on the environment or public facilities or services which, though acceptable in isolation, may be found to require mitigation due to the project's impacts in combination with the effects of existing development in the immediate area or given the probable development of subsequent projects with similar impacts. Further, the individual project may directly induce other developments, due to a causal relationship, which will adversely affect the environment. 3. Incremental property development often creates increased volumes and rates of stormwater runoff which may cause property damage, safety hazards, nuisance problems and water quality degradation. In drainage basins which are comprised of poor soils for infiltration of stormwater, it is the city's policy to protect existing natural drainage corridors and basins to the greatest extent feasible from adverse drainage impacts of new development. B. The analysis of cumulative effects shall include a reasonable assessment of: 1. The present and planned capacity of such facilities as sewers, parks, schools, streets, utilities, stormwater facilities and parking areas to serve the area affected by the proposal; 2. The capacity of natural systems, such as air, water, light and land, to absorb the direct and reasonable anticipated indirect impacts of the proposal; 3. Whether an action or project when considered together with prior, simultaneous or known future development allowed under existing development regulations 26 Ord. ,:~,5",~-// will create undue impacts on existing public facilities. C. Until a comprehensive stormwater control ordinance is adopted, the following cumulative effects procedures shall apply. In areas where existing facilities are inadequate to accommodate the cumulative effects of additional storm runoffs as determined by the director of public works in consideration with the director: 1. ^ drainage control plan shall accompany or be included with an environmental checklist and/or request for any city action on a proposed project; 2. The drainage control plan shall examine the cumulative effect, as well as the proportionate share, of the project's anticipated impact on the volume and rate of stormwater discharge within the drainage basin containing the subject property; 3. Approval of the most suitable method of drainage control shall be made by the city engineer or the public works department on a case-by-case basis; 4. The city, as a mitigation measure for probable cumulative stormwater impacts, may require covenants running with the land giving the city an independent right to recover a proportionate share of expenses for future regional stormwater facilities (within a subject property's drainage basin) or for remedying deficient drainage systems related to the subject property. D. An action may be conditioned or denied to lessen or eliminate its cumulative effects on the environment when, considered together with prior, simultaneous, induced or known future development under established development regulations, it is determined that a project will use more than its reasonable share of present and planned facilities, services or natural systems. (Ord. 2367 § 7, 1993). 19.04.280 Appeals. A. Appeal of a Threshold Determination for Types I and II Permits; Open Record Hearing. The decision of the responsible official on Types I and II permits making a threshold determination of nons nificance, ~,,, ,~pu,,~,~ u,,~,m approving a propos~ subj~t to Conditions, or denying a propos~ under SEPA's subs~ntive authority may be appml~ to the city council for an open-r~ord punic hinting, pursuit to S~tion 20.01.230(A)(2) and (B) ~MC. Any such appml must be consolidat~ with the council decision on the underlying project. Any remands or r~uestS for r~onsideration shall be govem~ by Sections 20.01.260 and 20.01.270 PTMC. I~UU~ 1¢1~[111[ [U tllU ~U~U~y UI tllU B. Appeal of Threshold Determination for Type III Projects; O~n and Closed Record Hearing. The decision of the responsible official on Type III permits making a threshold determination of nonsignificance, approving a proposal subject to conditions, or denying a proposal under SEPA's substantive authority may be appealed. The open record 27 Ord..,~_~Fr/ public hearing on the SEPA appeal shall be before the planning commission, which shall consider the appeal together with the decision on the project application in a single, consolidated hearine as further set forth in Section 20.01.220 PTMC. If the planning commission's decision on the SEPA decisi°n is appealed to the city council pursuant to subsection K(5) below, the closed record hearing on the SEPA ar)peal shall be before the city council pursuant to Section 20.01.230 PTMC. Any remands or requests for reconsideration shall be governed by Sections 20.01.260 and 20.01.270 PTMC. C. Ap?-.als of Threshold Determinations for Type ¥ Actions. The decision of the responsible official on Type ¥ actions may be ap!~aled by the same process as for Type III permit appeals. D. Limitations on Appeals for All Types of Permits. When a threshold determination results in a determination of significance (DS) it shall not be appealable. In addition, issues relating to the adequacy of the EIS and other procedural issues may not be appealed under this section. EE. Who May Appeal. Any person..ss-*v~' .... J b-y a "L,,~,~,,,,,,~'--' ~ An ~oplic~t or other p~y of r~ord who may be aggfiev~ by the responsible official's determination may app~ the d~ision as provid~ in this s~tion; provide, however, a ~rson may app~ only if they have previously fil~ written comments to either the pending or threshold determination or on the under v n oro ~t. If no WlittDlt ~Ulillll~ll[a llaVC O~li I~¢IV~ UII a tlllUallOlU ~[~,,,~,,~[,~,,, ,,,,~ ,~ no ~vv~ ~,~ The term "aggdev~ pa~y" shall have the m~ing set fo~h in Section 20.01.010 PTMC. tgF. Time to Appeal Administrative Decision. A written statement appealing the threshold determination of the responsible official must be filed with the -' .... ' .... o.,,~-' ,___,, _,,4__ ~l~tiiilll Is U UIIUII Is BCD department within 15 calendar days of the date of publication of the threshold determination or, if there is a 15-day comment period under WAC 197-11-340, by 5 4:00 p.m. of the last day of the comment period, except that the appel period shall be 21 calendar days if a SEPA Determination of Nonsignificance is issued concurrently with and as part of the permit decision. When the last day of the appeal period so computed is a Saturday, Sunday or legal holiday, the comment period shall run to 5:0t3-prmwon the next business day. T-he-app~ i~,lllJ, ll111Wilt, Ills "111%.1 ;~lllJ. lI ~l~ClJ. ly lUK;;lltll.~ ~;;IJ.t,.~ll KZ;IK>IIIK>IIL UI LIIU LIIIU~,IIUI~{- Ul~;i.l~lllllllamtlUll Uti;;llls appmtcd:. The notice of appeal shall be deliVered to BCD by mail or personal delivery, and must be received by 4:00 p.m. on the last business day of the appeal period, with the required ar)veal fee. FG. Form of Appeal. A person or group aPpealing the decision of the responsible official shall submit the following to the department: 1. The decision being appealed and a brief statement indicating the facts that establish the appellant's right to appeal; 28 Ord. 2. A brief statement identifying specific objections to the decision being appealed or identifying specific errors in fact or conclusion. The appellant shall bear the burden of proving the decision was Wrong; 3. The request~~....--"-" .,,.." ..... L.~ .... ,~.,,~a...'-' ...... o~..~: ........ -'~,t,~-,~'-~ desired outcome or changes to the decision; 4. The fc.~ us va.u Off aa .atauzsa.cu uy t.m ~,aiJ[cz, and address of the appellant and his/her interest in the matter; appeal; and 5. Any other information reasonably necessary to make a decision on the 6. The app~ fee. EH. Cost of Appeal. The cost of an appeal of the director's decision shall be in the amount set forth in Chapter 3.3(, 20.09 PTMC. t51. Notice. Notice of all appeals shall be mailed to all parties of record not less than 10 days prior to the date of the public meeting ~ to consider the appeal. J. Scope of Review for Type II Projects. The scope of review by the city council on Type II project SEPA appeals shall be the same as set forth in Section K(l?(3) below. The council shall take action and make findings consistent with Section 20.01.230 PTMC. HK. Scope of Review for Type III Projects. 1. Planning' commission review shall be consolidated with any public hearings related to the underlying permit action. Planning commission Council review shall be limited to the following issues related to compliance with the city's substantive SEPA policies pursuant to PTMC 19.04.240: 29 Ord. la. Issues of council intent with respect to interpretation of the substantive SEPA policies; ~h. Issues raised concerning the sufficiency and the appropriateneSs of the mitigation imposed; and 3c. The appropriateness of denial or approval of a proposal based on .the substantive SEPA POlicies. 2. In making its recommendation to the city council, the planning commission shall give deference to and afford substantial weight to the decision of the responsible official. 53. The council's planning commission's revieTM shall be on a de novo basis. tllU lull UU~IIUII IIIRY 1115¢ ~ltU YI31L~. 4. The planning commission shall recommend that the council affirm, modify or reverse the responsible official's decision, and shall enter findings and/or conclusions into the record to support the recommendation. 5. City council review. Any applicant or party of record dissatisfied with the planning commission's recommendation must appeal the recommendation to the city cOuncil, in the form sp~ified in subsection E above. In the event of such an appeal, the council shall review the commission's recommendation, together with the commission's recommendation on the underlying permitting actiOn. Council review shall be based upon the record develo~cl before the planning commission and shall be on a de novo basis. The city council shall take action consistent With Section 20.01.230 PTMC. L. Judicial Appeals. Pursuant to RCW 43.21C.075, if there is a time period for appealing the underlying permit action, ap?~als under this chapter shall be commenced within such time period. The city shall give official notice stating the date and place for commencing an appeal. For all decisions covered by the Land Use Petition Act, 36.70C RCW, this time ~r~riod shall be 21 days from the issuance of the land use decision, as defined by 36.70C.040(4~. ~"- - -: .... ,:_,, _: .... ,,~ _,_, · _, ....... ~ ,,., ,, ,~o,, ___, .......... · _. . . t~tl. Optional limitation period. If there is no time ~r~riod for ~_r~aling the underlying government action, the city, applicant for or proponent of an action may publish use a notice of action pursuant to RCW 43.21C.075 and 43.21C.080 ~. The notice shall describe the action and state a time limitation for commencing a challenge to that 30 Ord. ~,5~/ action. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the department, applicant or proponent pursuant to RCW 43.21C.080, and any action to set aside, enjoin review or otherwise challenge any such governmental action or subsequent governmental action for which a notice of action is filed and published under this seCtion shall be commenced within 21 days from the date of the last newspaper publication of the notice pursuant to RCW 43.21C.080. NM. Exemption. This section does not apply to decisions made pursuant to Chapter 90.58 RCW, the Shoreline Management Act. Appeals of SEPA mitigation measures pertaining to projects subject to Chapter 90.58 RCW shall be made to the shoreline hearings board along with appeal of the city's shoreline decision. (Ord. __ § 1, 1996; Ord. 2431 § 5, 1994; Ord. 2367 § 7, 1993). Article VIII. Fees, Violations, Penalties and Severability 19.04.290 Fees. The city shall require ~ fees for its activities in accordance with the provisions of this chapter and Chapter 3.36 20.09 PTMC. /-1. llllU~llUl[l lYUtUlllllllCttlUll, I'UI UVUly UllVllOlllllUlltCtl k~llF&Ml~g LII~ ~ILy Will 11~1~ ~ ~ P~,IC ~ ...... ' ............................ ' ............ ~-~-'-'-- ~--'- '~ ........ ............................ iods .......................... ~ ......... ' ...................... ~ll~l IIU[ UU[III [U lull ~ilgll ~d~lliUiig UI 1~, I'UI ~i~ ~Ui}i~IUA IUVlS~ I~UIIIII[ ~11 UlliU Iii ........ ~ '~ ~ ...... '-- -' ................... ' ..... '-- f~ ~-- th - ~ ~'~ ..... ' I~UIIIII[ ~i ~lO ~1~ tll~IU~II~IUI~ UIII~IaI ~G[GIIIIIIIG~ LII~L LII~~10 ~iifll OU ~1~ U~ · UII ~Ll~ WILIi UUIIU} ~U LIIU UIL~ gllUl LU UUIIIIIIUIIUIII~ WUi[, illU ~IL~ Will IUIUIIU LIIU [i~[~3j 11 dll~j dL LIIU .111111151~1~ ~dy O15 5AU5~ UUIUIU WUI~ UII tll~ ~IUJ~L Will UUIILIIIUU, 11 d ~IU~U3~ 1~ IIIUUIII~ --" ........ ~ '- longer .....'--- '" .......... '~' - -~-:-' -~-" ~-~ .... ' ....~ ....."--'~ ~U [ll~t ~1 BiO l~ n0 i~Ull~? tllU ic3~uii31Ul~ UlllSl~ 311~1 iClUllU ~1~ 1~3 ~Ull~t overbid, m-e p~d. 31 Ord. UUtUilillii~ tli~t ~1 ~iO 1~ 1~11~m ~liU d~ll~i~ ~11~1 ~1 IIIIU~ UI ~JUU.~ IUI 5 Fo '~- p ~o~ -~ "-'- ' ........ ' ............ ' ' pact ............ '--" esfin~at~ cos;ux ...... u,. ~$agx~ ..... u~. ~--uy thc~xty-"-- ~id ...... t,,~ ~pp..~,[," ......... ~u~,,~ .~oaa a,,m. o~ p~d tU Uib ~lt~ U~ tlIU ~11~1~ ~IIUI [U ~UII~IIIU$ ~1~111[ ~IU/UI 1111~ ~k~lUll U~ tllU ~1~, ~lld~tUlm ~IU IUI 111~1111[ [llU UU~UIIIUII~ 111 ~ III~IIIUI ~IUVIU$ U~ Ulld~tUl ~, I I ~U 1~. (Ord. __ } 1, 1996; Ord. 2367 } 8, 1993). 19.04.300 Violations and penalties. A. Director's Authority. Whenever the director, or his or her designee ("director"), determines that a condition exists in violation of this chapter or any standard required to be adhered to by this chapter, or in violation of any permit issued hereunder, he or she is - authorized to enforce the provisions of this chapter. B. Chapter 20.10 Applicable. All violations of any provision of this chapter or incorporated standards, or of any permit issued hereunder, are made subject to the provisions of Chapter 20.10 PTMC. The director is authorized to order correction and discontinuance of any violative condition of the provisions of this chapter under the procedures of Chapter 20.10 PTMC, which provide for voluntary correction orders, formal notice and orders to correct the violation, abatement orders, stop work and emergency orders and assessment of civil penalties. C. Order to Cease Violation. Whenever any such violative condition is found, pending commencement and completion of the voluntary correction and/or notice and order procedures 'of Chapter 20.10 PTMC, the director may order the cessation of activity causing the violative condition by notice in writing served on or mailed to the person(s) engaged in or causing such condition. The effect of such order shall be to require immediate cessation of any activity causing the violative condition. Such order shall not be affected by any right of appeal afforded by this or any other code provision. D. Public Nuisance. All violations of this chapter and standards required thereby, are determined to be detrimental to the public health, safety, and welfare and are public nuisances. All conditions which are determined by the director to be in violation of this chapter or standards required thereby, shall be subject to the provisions of this chapter and shall be corrected by any reasonable and lawful means, as further set forth in Chapter 20.10. 3 2 Ord. E. Alternative Remedies. As an alternative to any other judicial or administrative remedy provided in this chapter or by law or other ordinance, any person who willfully or knowingly violates or fails to comply with any stop work order or emergency order, issued pursuant to Chapter 20.10 PTMC is guilty of a misdemeanor and upon conviction shall be punished as provided in Section 20.10.060, PTMC. Each day such violation or failure to comply continues shall be considered an additional misdemeanor offense. (Ord. 2512 § 1, 1996; Ord. 2370 § 1, 1993; Ord. 2367 § 8, 1993). Section 2. Severability. If any clause, sentence, paragraph, section or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered and shall not affect or invalidate the remainder of any part thereof to any other person or circumstances and to this end the provisions of each clause, sentence, paragraph, section or part of this law are hereby declared to be severable. This ordinance shall take effect and be in force five days after the date of its publication in the manner provided by law. Read for the first, second, and third times and passed by the City Council of the City of Port Townsend, Washington, at a regular meeting thereof, held this 17th day of June, 1996. Juli , Mayor Attest: / / V-era FrailS, Acting City Cle~_J~ 06/13/gf~4.~17~nviron. CA{} ORD{CH19-04.doc} 33 Ord.