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HomeMy WebLinkAbout2367 State Environmental Policy Act (SEPA) ProvisionsORDINANCE NO. 2367 AN ORDINANCE AMENDING CHAPTER 19.04 OF THE PORT TOWNSEND MUNICIPAL CODE REGARDING STATE ENVIRONMENTAL POLICY ACT PROVISIONS RELATED TO THE DESIGNATION OF RESPONSIBLE OFFICIAL, PUBLIC NOTICE AND SEPA ADMINISTRATIVE PROCEDURES UNDER THE CITY OF PORT TOWNSEND'S TITLE 19, ENVIRONMENTAL PROTECTION. WHEREAS, the City of Port Townsend State Environmental Policy Act (SEPA) policies, Title 19 of the Port Townsend Municipal Code (PTMC), presently designates the City Council as the "responsible official" for the purposes of making threshold determinations, supervising the scoping and preparation of required environmental impact statements, and performing other functions assigned by the "lead agency"; and WHEREAS, the Port Townsend City Council finds that the recent number of land use permit applications in Port Townsend has added to the number and complexity of its tasks as the "responsible official"; and WHEREAS, the Port Townsend City Council finds that changing the designation of the "responsible official" would assist in conserving its own, as well as staff, resources in the form of time and energy expended on detailed project reviews; and WHEREAS, the Port Townsend City Council finds that by delegating its duties as the "responsible official" to the Director of the City of Port Townsend's Planning and Building Department, the efficiency and predictability of SEPA project reviews would be enhanced; and WHEREAS, the Port Townsend City Council finds that the public notice provisions of the PTMC Title 19, SEPA policies, should clearly provide the public with notification and an opportunity to comment on all pending threshold determinations before such determination is made; and WHEREAS, the Port Townsend City Council finds that changing the designation and responsibilities of the "responsible official" and modifying the SEPA administrative and public notice provisions of the ordinance would reduce the likelihood of appearance of fairness conflicts and would serve the best interests of the citizens of Port Townsend; THE CITY COUNCIL OF THE CITY OF PORT TOWNSEND IN REGULAR SESSION ASSEMBLED, DOES ORDAIN AS FOLLOWS: Section 1. Article I of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: Chapters: 1904.04 Title 19 ENVIRONMENTAL PROTECTION State Environmental Policy Act Chapter 19.04 STATE ENVIRONMENTAL POLICY ACT Sections: 19.04.010 19.04.020 19.04.030 19.04.040 19.04.050 19.04.060 19.04.070 19.04.080 19.04.090 19.04.100 19.04.110 19.04.120 19.04.130 19.04.140 ARTICLE I. GENERAL PROVISIONS Authority. Definitions. Additional definitions. ARTICLE II. GENERAL REQUIREMENTS Adoption by reference. Designation of responsible official--responsibilities. Transfer of lead agency status to a state agency. Timing of environmental review process. ARTICLE III. CATEGORICAL EXEMPTIONS THRESHOLD DETERMINATIONS AND Adoption by reference. Use of exemptions. Environmental checklist. Threshold determination. Mitigated determination of nonsignificance (MDNS). ARTICLE IV. ENVIRONMENTAL IMPACT STATEMENTS (EIS) Adoption by reference. EIS preparation--Additional considerations. 19.04.150 19.04.160 19.04.170 19.04.180 19.04.190 19.04.200 19.04.210 19.04.220 19.04.230 19.04.240 19.04.250 19.04.260 19.04.270 19.04.280 19.04.290 19.04.300 19.04.310 Relationship of EIS to other considerations. When environmental review has previously been completed. ARTICLE V. ENVIRONMENTALLY SENSITIVE AREAS (ESA) Defined Environmental sensitive areas goals and policies. Environmentally sensitive area determination. Categorically exempt determination. ARTICLE VI. COMMENTING Adoption by reference. Public notice. Designated official to perform consulted agency responsibilities. Public hearings under WAC 197-11-535(2). ARTICLE VII. SEPA DECISIONMAKING AUTHORITY, USE OF EXISTING DOCUMENTS AND APPEALS Adoption by reference. Substantive authority. Cumulative effects policy. Appeals. ARTICLE VIII. FEES, VIOLATIONS AND PENALTIES AND FORMS Fees. Violations and penalties. 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, WAC Chapter 197-11, must be used in conjunction with this chapter. (Ord 2005 Sec 1, 1984). 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 Section 19.04.030: 3 WAC 197-11-700 197-11-702 197-11-704 197-11-706 197-11-708 197-11-710 197-11-712 197-11-714 197-11-716 197-11-718 197-11-720 197-11-722 197-11-724 197-11-726 197-11-728 197-11-730 197-11-732 197-11-734 197-11-736 197-11-738 197-11-740 197-11-742 197-11-744 197-11-746 197-11-748 197-11-750 197-11-752 197-11-754 197-11-756 197-11-758 197-11-760 197-11-762 197-11-764 197-11-766 197-11-768 197-11-770 197-11-772 197-11-774 197-11-776 197-11-778 197-11-780 197-11-782 197-11-784 Definitions. Act. Action. Addendum. Adoption. Affected tribe. Affecting. Agency. Applicant. Built environment. Categorical exemption. Consolidated appeal. Consulted agency. Cost-benefit analysis. County/city. Decisionmaker. Departments. Determination of nonsignificance (DNS). Determination of significance (DS). Environmental impact statement (EIS). Environment. Environmental checklist. Environmental document. Environmental 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. 4 197-11-786 197-11-788 197~11-790 197-11-792 197-11-793 197-11-794 197-11-796 197-11-797 197-11-799 (Ord 2005 Sec2.10, 1984) Reasonable alternative. Responsible official. SEPA. Scope. Scoping. Significant. State agency. Threshold determination. Underlying governmental action. 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. 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. "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. E. "Ordinance" means the ordinance, resolution, or other procedure used by the city to adopt regulatory requirements. Fo Ecology. "SEPA rules" means WAC Chapter 197-11 adopted by the Department of G. "State" means the Washington state. (Ord 2005 Sec 2.20, 1984). designee. "Director" means the Planning and Building Director of the City and his/her I. "Lead department or department" means the Planning and Building Department which has the primary responsibility for SEPA staffing and analysis and making the decision or final administrative recommendation on a proposal. J. "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. 5 Section 2. Article H of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: 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 of the Washington Administrative Code by reference, as supplemented in this article: WAC 197-11-040 197-11-050 197-11-055 197-11-060 197-11-070 197-11-080 197-11-090 197-11-100 197-11-900 197-11-902 197-11-916 197-11-920 197-11-922 197-11-924 197-11-926 197-11-928 197-11-930 197-11-932 197-11-934 197-11-936 197-11-938 197-11-940 197-11-942 197-11-944 197-11-946 197-11-948 (Ord 2005 Sec3.10, 1984) 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 agency, when one of the agencies is a county/city. Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies. Lead agency for private projects requiring licenses from more than one state agency. 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. ~23~7 ARTICLE II: GENERAL REQUIREMENTS 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 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 all 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, and; B. The Director may obtain third party review on city-initiated proposals to review and comment on such proposals. 7 19.04.060 Transfer of lead agency status to a state agency. A. 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 official 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 shall be the lead agency and the city shall be an agency with jurisdiction. To transfer lead agency duties, the city's responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the city shall also give notice of the transfer to the private applicant and other agencies with jurisdiction over the proposal. (Ord 2005 Sec 3.40, 1984). 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 initial proposal formulation to integrate environmental concerns into the early stage of the decision-making process. C. For city-initiated development projects, the initiating department shall not be the responsible official on that project. D. For proposals subject to SEPA, the procedural requirements of SEPA and this code shall 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 alternatives. 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 fifteen-day period, the threshold determination is final at the end of the fifteen-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. 2005 Sec.3.50, 1984). Section 3. Article HI of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: 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 197-11-300 197-11-305 197-11-310 197-11-315 197-11-330 197-11-335 197-11-340 197-11-350 197-11-360 197-11-390 197-11-800 197-11-880 197-11-890 (Ord 2005 Sec4.10,1984). Purpose of this part. Categorical exemptions. Threshold determination required. Environmental checklist. Threshold determination process. Additional information. Determination of nonsignificance (DNS). Mitigated DNS. Determination of significance (DS)/initiation of scoping. Effect of threshold determination. Categorical exemptions. Emergencies. Petitioning DOE to change exemptions. 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 Section 19.04.160 of this code. 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. The city shall not require completion of an environmental checklist for an exempt proposal, unless the proposal would have a probable significant adverse ehvironmental 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: any nonexempt action, any action that would have an adverse environmental impact, or 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 2005 Sec 4.20, 1984). 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. A 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 (1) 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. 10 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. (Ord 2005 Sec 4.30, 1984). D. 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: 1. The city has technical information on a question(s) that is unavailable to the private applicant; or 2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. 3. In either D1 or D2 above, 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. 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. 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. B. Each threshold determination shall be published in accordance with Section 19.04.220. Threshold determinations are appealable as set forth in Section 19.04.250. C. 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. 1. The City should normally complete a threshold determination that can be based solely upon review of the environmental checklist for the proposal within 15 days of the date that notice of the pending threshold determination has been posted and mailed. 11 2. When the Department requires further information from the applicant or consults with other agencies with jurisdiction: a. The department should normally request such further information within fifteen days of receiving a complete application and complete environmental checklist. b. The city should normally wait no longer than fifteen (15) days for a consulted agency to respond. 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 and should make the determination as soon as possible from the date received, and at a maximum, within 90 days after receipt of a revised proposal. 12 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 fifteen-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. 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. (Ord 2005 Sec 4.40, 1984). J. Posting of conditions. The Department shall prepare a list of all conditions placed on 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. Section 4: Article IV of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: 13 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 (Ord 2005 Sec5.10, 1984) 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. 19.04.140 EIS preparation--Additional considerations. A. Preparation of draft and final EIS's (DEIS and FEIS) and draft and final supplemental EIS's (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 WAC Chapter 197-11. B. 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: 14 1. The applicant to prepare a draft and final EIS or SEIS; 2. The applicant to retain a consultant for the preparation of a draft and final EIS or SEIS; 3. Joint preparation of a draft and final EIS or SEIS; or 4. Joint retention of a consultant to prepare a draft and final EIS or SEIS. o staff. For city proposals, the EIS shall be prepared by a consultant or by city 6. In all cases above, the method of preparation and the selection of the consultant shall be subject to the approval of the responsible official. 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. C. 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 judgement 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 Section 19.04.260. D. In the event the responsible official or his 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 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.) (Ord 2005 Sec 5.20,1984). E. 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. 15 F. 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 twenty-one 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 Section 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 thirty days after the determination of significance is issued, unless the Director and the proponent agree on a later date. 16 G. 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. 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 EIS's with other documents, such as a cost-benefit analysis, or to include additional analysis in EIS's to assist in making decisions (197-11-440(f) 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. 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 17 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. Section 5. Article V of Chapter 19.04 of the Port Town_send Municipal Code is hereby amended to read as follows: 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 that may have severe limitations to development or where development could severely impact the area. ESA's are designated and mapped in Chapter 19.05 of the Port Townsend Municipal Code and the definitions, designations and mapping contained in that Chapter are incorporated into this Chapter by reference. 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 section 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 impact~ 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 Section 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; 18 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. 2005 §6.20, 1984) 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 and cited in Section 19.04.160. 19 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. 2005 §6.30, 1984) 19.04,200 Categorically Exempt Determination. A. 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. Section 6. Article VI of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: 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 197-11-500 197-11-502 197-11-504 197-11-508 197-11-535 197-11-545 197-11-550 197-11-560 197-11-570 Purpose of this part. Inviting comment. 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. 2005 Sec. 7.10, 1984) 19.04.220 Public notice. A. Pending Threshold Determination. No later than seven (7) days after the filing of an application requiring the issuance of a threshold determination, pursuant to WAC 197-11- 310, the Department shall provide the public with notice and an opportunity to comment on the pending threshold determination as follows: 20 1. The Department shall send notices to adjacent property owners within 200 feet of the proposal advising them of the pending threshold determination. Names and addresses of adjacent property owners shall be provided to the Planning and Building Department by the applicant, subject to Planning and Building Department approval. 2. The Department shall provide the applicant with at least two (2) notices of the pending threshold determination, and one (1) copy of an affidavit of posting. The proponent shall post the notices and maintain them in place until the threshold determination is issued, in a waterproof sleeve. The notices shall be placed in conspicuous locations on or near the property, and shall be removed by the proponent upon the issuance of the threshold determination. Said notices shall indicate where SEPA documents are available for public review and shall be mounted on easily visible boards not smaller than two feet (2') by three feet (3'). The affidavit of posting shall be signed, notarized, and returned to the Department no later than seven (7) days after the notices are provided. 3. The Department shall arrange one (1) publication of the notice of the pending threshold determination to appear in a newspaper of general circulation within the City. Payment of all publication fees shall be the responsibility of the applicant and included in the SEPA application fee. 4. The Department shall provide a mailing of the upcoming threshold determination in its permit application log to each person who has requested subscription to the permit log in writing for the calendar year and who has paid the fee established by the Director. B. In addition to meeting Department requirements, all pending threshold determination notices shall include a statement indicating that any person shall have a period of ten (10) calendar days from the date of the notice to submit information and comments relating to the pending threshold determination to the Department. All comments received shall be provided to the proponent. Where practicable, notice of a pending threshold determination may be incorporated within a notice required under another permit application, such as a substantial development permit, conditional use permit, or notice of a pending administrative review, or notice of a public hearing, required pursuant to the PTMC. C. Optional Procedures of the Director regarding pending threshold determinations. 1. In addition to posting of the property for site specific proposals and publishing notice in a newspaper of general circulation in the City for pending threshold determinations, the responsible official may: 21 a. Opt to hold a public meeting to review the checklist; b. Schedule a public site visit or informal meeting with the proponent, adjacent property owners, or interested citizens. c. Place notices in appropriate journals, agency or neighborhood newsletters or appropriate mailing lists. d. Use any other reasonable method deemed appropriate by the responsible official. D. Determination of Nonsignificance. 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 as follows by the city: 1. In addition to notice for a pending threshold determination, the city shall provide notice if public notice is required for a nonexempt license or permit, the notice shall state whether a DS, MDNS, or DNS has been issued and when comments are due. 2. Notice of the DNS, 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. 3. The responsible official may extend the comment period where a proposal has been modified substantially or information has been misrepresented or withheld in the checklist. E. 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. F. Notice of DEIS or SEIS availability. Whenever a DEIS is issued under WAC 197-11-455(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: 1. Posting the property, for site-specific proposals; 2. Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located; 3. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered; 22 4. Notifying the news media; journals; Placing notices in appropriate regional, neighborhood, ethnic, or trade 6. Publishing notice in agency newsletters and/or sending notice to agency mailing lists; o official. Any other reasonable method deemed appropriate by the responsible G. 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. The public comment period for projects requiring other city licenses, permits or approvals, shall be the same as that required by the license, permit, or approval or fifteen working days, whichever is greater. H. Cost of notification. The city will require an applicant to complete the public notice requirements for the proposal at his or her expense. (Ord. 2005 Sec 7.20, 1984). 19.04.230 Designated official to perform consulted agency responsibilities. A. The City Planning and Building 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 2005 Sec 7.30, 1984). 19.04,240 Public Hearings under WAC 197-11-535(2). A. When a public hearing is held under WAC 197-11-535(2), such hearing shall be heard before the responsible official. Section 7: Article VII of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: 23 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 (NEPA) 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 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. (Ord. 2005 §8.10, 1984) 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. 3. capable of being accomplished; and Such conditions are in writing; and The mitigation measures included in such conditions are reasonable and 24 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 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. Ce long as: The city may deny a permit or approval for a proposal on the basis of SEPA so 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; 25 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: ao thereto; City comprehensive plan and any amendments adopted pursuant bo Co City subdivision ordinance; Port Townsend Shoreline Management Master Program; City floodplain management ordinance; City building code ordinance; City road, traffic and circulation standards; City zoning ordinance; Port Townsend Urban Waterfront Plan; 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 of the Port Townsend Municipal Code; 26 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. 19.04.270 Cumulative Effects Policy. A. Policy Background. There are over 11,000 platted lots, generally 50 by 100 feet, within the city. These lots were platted 75-100 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 1. 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 immedi~ite 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. 2. 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 will create undue impacts on existing public facilities. 27 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. A 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. 19.04.280 Appeals. A. Appeal of a Threshold Determination. The decision of the responsible official making a threshold determination of non-significance (DNS) may be appealed to the City Council. When a threshold determination results in a determination of significance (DS), it shall not be appealable. Review by the City Council shall be on a de novo basis. B. Appeal of decision denying or attaching conditions to a proposal. The decision of the responsible official approving a proposal subject to conditions or denying a proposal under SEPA's substantive authority may be appealed to the city council. Issues relating to the adequacy of the EIS and other procedural issues may not be appealed under this section. 28 C. Who May Appeal. Any person aggrieved by a threshold determination may appeal the decision, provided, however, a person may appeal only if they have previously filed written comments to either the pending or threshold determination. If no written comments have been received on a threshold determination, there is no appeal period. D. Time to Appeal Administrative Decision. A written statement appealing the threshold determination of the responsible official must be filed with the Planning and Building Department within fifteen (15) calendar days of the date of publication of the threshold determination or, if there is a comment period under WAC 197-11-340, by 5:00 p.m. of the last day of the comment period. 1. When the last day of the appeal period so computed is a Saturday, Sunday or legal holiday, the comment period shall run to 5 p.m. on the next business day. The appeal shall be in writing and shall clearly identify each element of the threshold determination being appealed. E. Cost of Appeal. The cost of an appeal of the Director's decision is $250.00. The fee shall be waived if a valid petition is signed by 200 Port Townsend citizens and is submitted to the Department within the designated appeal period. Any such appeal must clearly list the names and addresses of each signator. F. Form of Appeal. A person or group appealing the decision or the responsible official shall submit the following to the Department: 1. A brief statement indicating the facts that establish the appellant's right to appeal, and; 2. A brief statement identifying specific objections to the decision being appealed or identifying specific errors in fact on conclusion; and 3. The requested relief from the decision being appealed, and; 4. The appeal fee or valid petition as established by this chapter, and; appeal. Any other information reasonably necessary to make a decision on the G. Notice. Notice of appeals shall be mailed to all parties of record not less than fifteen (15) days prior to the date of the public meeting to consider the appeal. H. Scope of Review. Council review shall be limited to the following issues related to compliance with the City's substantive SEPA policies pursuant to Section 19.04.240. 29 1. Issues of Council intent with respect to interpretation of the substantive SEPA policies. 2. Issues raised concerning the sufficiency and the appropriateness of the mitigation imposed, and 3. The appropriateness of denial or approval of a proposal based on the substantive SEPA policies. I. The Council's review shall be on a de novo basis, provided further, that members of the committee of the Council assigned the appeal and/or of the full Council may make site visits. J. Council Action. The Council may affirm, modify or reverse the responsible official's decision, remand cases to the responsible official or the appropriate department with directions for further proceedings, or grant other appropriate relief. If the Council reverses or modifies the responsible official's decision, the Council shall enter findings and/or conclusions into the record to support the decision. K. Time to Appeal City Council Decision to Superior Court. The decision of the Council On the administrative appeal must be appealed to superior court in conjunction with an appeal of the underlying action in accordance with RCW 43.21 C.075 and within the time limits specified therein. L. Judicial Appeals. The city shall give official notice under WAC 197-11-680 whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeals. Any judicial appeals shall be filed within the time limits specified and pursuant to the provisions of WAC 197-11-680. M. The city, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action. The notice shall describe the action and state a time limitation for commencing a challenge to that 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. (Ord. 2005 §8.30, 1984) N. Exemption. This section does not apply to decisions made pursuant to RCW 90.58; the Shoreline Management Act. Appeals of SEPA mitigation pertaining to projects subject to RCW 90.58 shall be made to the Shoreline Hearings Board along with appeal of the City's shoreline decision. Section 8. Article VIII of Chapter 19.04 of the Port Townsend Municipal Code is hereby amended to read as follows: 30 ARTICLE VIII. FEES, VIOLATIONS AND PENALTIES AND SEVERABILITY 19.04.290 Fees. The city shall require the following fees for its activities in accordance with the provisions of this chapter and Section 3.36 of the Port Townsend Municipal Code: A. Threshold Determination. For every environmental checklist the City will help to prepare and/or review when it is lead agency, the City shall collect fees according to Section 3.36 (PTMC) from the proponent of the proposal prior to undertaking a basic threshold determination. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of fees. For any complex review requiring staff time in excess of 10 hours, the City shall charge an hourly fee for the additional time. B. Environmental Impact Statement. 1. When the City is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of the City, the City may charge and collect a reasonable fee from any applicant to cover costs incurred, including overhead, by the City in preparing the EIS. 2. The responsible official may determine that the City will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the City, and shall bill such costs and expenses directly to the applicant. Such consultants shall be selected by the City. 3. The applicant shall pay the projected amount, or submit a letter of credit or post a bond, to the City prior to commencing work. The City will refund the excess, if any, at the completion of the EIS. If the City's costs exceeds the projected costs, the applicant shall immediately pay the excess before work on the project will continue. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (1) or (2) above which remain after incurred costs, including overhead, are paid. 4. For all proposals in which the City is the lead agency and the responsible official determines that an EIS is required, the applicant shall be charged an initial fee of $500.00 for administrative costs. 5. For the purpose of this section, cost of an environmental impact statement shall include the cost of preparation and publication, including printing, collating, binding, and circulation of the draft and final EIS. Applicants may be required to post bond or otherwise insure payment of such costs. In the event the actual cost of the draft and final EIS exceeds the estimated cost of the EIS agreed upon by the City and the applicant, such excess shall be paid to the City by the applicant prior to continued processing and/or final action by the City. 31 C. The City may collect a reasonable fee from an applicant to cover the costs of meeting the public notice requirements of this chapter relating to an applicant's proposal. D. The City may charge any person for copies of any document prepared under this chapter, and for mailing the document in a manner provided by RCW Chapter 42.17. 19.04.300. Violations and Penalties. A. It shall be a violation of this Chapter for any person, firm or corporation to erect, construct, modify, improve, enlarge, repair, move, remove, convert or demolish, occupy or maintain any property, vegetation, building or structure contrary to or in violation of any provision of this Chapter, or in violation of any decision, condition of approval or agreed upon condition or feature of a proposal subject to the provisions of this chapter. It shall be a violation of the Chapter for any person, firm or corporation to knowingly aid and abet, counsel, encourage, hire, commend, induce or otherwise procure another to violate or fail to comply with this Chapter. It shall also abe a violation of this Chapter for any person, firm or corporation to fail to pay any fees when due or fail to follow any order or procedure required by or under this Chapter. B. Any owner, person, firm or corporation who fails to comply with any provision of this Chapter or any notice, decision or order issued by the Director pursuant to this Chapter shall be subject to a cumulative civil penalty in the amount of five hundred dollars ($500.00) per day for each day of noncompliance, measured from the date the violation begins or occurs until the owner, person, firm or corporation complies with the requirements of this Chapter. The Director shall notify the City Attorney in writing of the name of any person subject to the penalty, and shall assist the City Attorney in collecting the penalty. C. Stop Work Order. Whenever a continuing violation of this Chapter will materially impair the Director's ability to secure compliance with this Chapter, when the continuing violation threatens the health or safety of the public, or when the continuing violation threatens or harms the environment, the Director may issue a Stop Work Order specifying the violation and prohibiting any work or other activity at the site. The posting of the stop work order on the site shall be deemed adequate notice of the stop work order. A failure to comply with a Stop Work Order shall constitute a violation of this Chapter. D. Emergency Order. Whenever any use or activity in violation of this Chapter threatens the health and safety of the occupants of the premises or property or any member of the public or environment be corrected. The Emergency Order shall specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible. A failure to comply with an Emergency Order shall constitute a violation of this Chapter. Any condition described in the Emergency Order which is not corrected within the time specified is hereby declared to be a public nuisance and the Director is authorized to abate such nuisance summarily by such means as may be available. The cost of such abatement shall be recoverable from the owner or person responsible or both in the manner provided by law. 32 E. Criminal Penalty. Anyone violating this Chapter or failing to comply with any order issued by the Director pursuant to this Chapter shall, upon conviction thereof, be punished by a fine of not more than One Thousand Dollars ($1,000) or by imprisonment for not more than 360 days, or by both such fine and imprisonment. Each day's violation or failure to comply shall constitute a separate offense. Anyone violating or failing to comply with any of the provisions of this Chapter and who within the past five (5) years has had a judgment against them pursuant to this subsection shall upon conviction thereof, shall additionally be fined in a sum not to exceed Five Hundred Dollars ($500.00) or by imprisonment for not more than one hundred and eight (180) days, or by both such fine and imprisonment. Each day's violation or failure to comply shall constitute a separate offense. 19.04.310 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 judgement 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. 19.04.320. Effective Date. This Ordinance shall become effective five (5) days after its passage and publication. ~.m~ ~held this,~ i~n M. Clise, Mayor Attest' David Grove, City Clerk Read for the first time on ,l'o,.t~,t I q,, /q?3 and for the second and third times and passed by the City Council of the City of Port Townsend, Washington, at a regular /q rn day of _,rtl!.,-/ , 1992. First Reading: 7-/t~_ Second Reading: ?~ ! ? Third Reading: 7" ! ?- Publication Date: '7- 20*- Effective Date: Approved as to form: Dennis McLerran, City Attorney 33