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1568 - Ordinance - Replacing Certain Sections Regarding SEPAd;. NOTICE OF CITY OF PORT ORCHARD ORDINANCE The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council meeting held January 11, 1993. ORDINANCE NO. 1568 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON, REPEALING AND REPLACING CERTAIN SECTIONS OF TITLE FOURTEEN, PORT ORCHARD MUNICIPAL CODE, RELATING TO THE STATE ENVIRONMENTAL POLICY ACT (SEPA). Copies of Ordinance No. 1568 are available for review at the office of the City Clerk of the City of Port Orchard. Upon written request a statement of the full text of the Ordinance will be mailed to any interested person without charge. Thirty days after publication, copies of Ordinance No. 1568 will be provided at a nominal charge. City of Port orchard Michelle Hager Deputy Clerk Publish: Port Orchard Independent January 20, 1993 ORDINANCE NO. 1568 AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON REPEALING AND REPLACING CERTAIN SECTIONS OF TITLE FOURTEEN PORT ORCHARD MUNICIPAL CODE RELATING TO THE STATE ENVIRONMENTAL POLICY ACT (SEPA) THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. That the following Chapters of the Port Orchard Municipal Code and Sections Contained therein and ordinances corresponding thereto be, and the same hereby are repealed. Chapter 14.04, Ordinance 1288, Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. SECTION 2. The following sections be added as new additions to the Port Orchard Municipal Code. 14.04.010 Authority (1) The City of Port Orchard adopts this ordinance under the State Environmental Policy Act (SEPA), ROW 43.21C.120, and the SEPA rules, Washington Administrative Code (WAC) 197-11-904. (2) This ordinance contains the City's SEPA procedure and policies. (3) The SEPA rules, Chapter 197 WAC, must be used in conjunction with this ordinance. 14.04.020 Adoption by Reference The City adopts the following sections of chapter 173-806 WAC, known as the SEPA Model Ordinance, by reference, together with any amendments, as and for the SEPA ordinance for the City of Port Orchard as if set forth in full in this Chapter: WAC 173-806-020 General Requirements - Purpose of this part and adoption by reference. WAC 173-806-030 Additional definitions. WAC 173-806-053 Transfer of lead agency status to a state agency. WAC 173-806-065 Categorical Exemptions and Threshold Determinations - Purpose of this part and adoption by reference. WAC 173-806-080 Use of exemptions. WAC 173-806-110 Environmental Impact Statements - Purpose of this part and adoption by reference. Ordinance No. 1568 Page Two of Ten WAC 173-806-120 Preparation of an EIS - Additional Considerations. WAC 173-806-128 Commenting - Adoption by reference. WAC 173-806-150 Using Existing Environmental Documents - Purpose of this part and adoption by reference. WAC 173-806-155 SEPA and Agency Decisions - Purpose of this part and adoption by reference. WAC 173-806-173 Notice/Statute of limitations. WAC 173-806-175 Definitions - Purpose of this part and adoption by reference. WAC 173-806-180 Categorical Exemptions - Adoption by reference. WAC 173-806-185 Agency Compliance - Purpose of this part and adoption by reference. WAC 173-806-220 Severability. WAC 173-806-230 Forms - Adoption by reference. 14.04.030 Designation of Responsible Official (1) For those proposals for which the City is the lead agency, the responsible official shall be the City Engineer. (2) For all proposals for which the City is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the "lead agency" or "responsible official" by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020. (3) The City shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW. 14.04.040 Lead Agency Determination and Responsibilities (1) The department within the City receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and 197-11-922 through 197-11-940; unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency. (2) When the City is the lead agency for a proposal, the department receiving the application shall determine the responsible official who shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS. ordinance No. 1568 Page Three of Ten (3) When the City is not the lead agency for a proposal, all departments of the City shall use and consider, as appropriate, either the DNS or final EIS of the lead agency in making decisions on the proposal. No City department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the City may conduct supplemental environmental review under WAC 197-11-600. (4) If the City or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within fifteen days of receipt of that determination, or the City must petition the Department of Ecology for a lead agency determination under WAC 197-11- 946 within the fifteen -day time period. Any petition on behalf of the City may be initiated by the responsible official with the concurrence of the mayor. (5) Departments of the City are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944: Provided, That the responsible official and any department that will incur responsibilities as the result of such agreement approve the agreement. (6) Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (That is: Which agencies require nonexempt licenses ?). 14.04.050 Additional Considerations In Time Limits AoDlicable to the SEPA Process. The following time limits (expressed in calendar days) shall apply when the City proposes licenses for all private projects and those governmental proposals submitted to the City by other agencies: (1) Threshold determinations: (a) The City should complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within fifteen days of the date an applicant's adequate application and completed checklist are submitted. (b) The City shall complete threshold determinations on actions where the applicant recommends in writing that an EIS be prepared, because of the probable significant environmental impact(s) described in the application, within fifteen days of receiving an adequate application and completed checklist. Ordinance No. 1568 Page Four of Ten 14.04.060 Additional Timing Considerations. (1) For nonexempt proposals, the DNS or Final EIS for the proposal shall accompany the City's staff recommendation to an appropriate advisory body such as the planning commission. (2) 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 submission of the detailed plans and specifications. 14.04.070 Flexible Thresholds for Categorical Exemptions (1) The City of Port Orchard establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(b) based on local conditions: (a) For residential dwellings units in WAC 197-11- 800(1)(b)(i): Up to four (4) dwelling units. (b) For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii): Up to twelve thousand (12,000) square feet and up to forty (40) parking spaces. (c) For parking lots in WAC 197-11-800(1)(b)(iv): Up to forty (40) parking spaces. (d) For landfills and excavations in WAC 197-11- 800(1)(b)(v): Up to five hundred (500) cubic yards. (2) Whenever the City establishes new exempt levels under this section, it shall send them to the Department of Ecology, Headquarters Office, Olympia, Washington, 98504 under WAC 197-11-800(1)(c). 14.04.080 Environmental Checklist. (1) A completed environmental checklist (or a copy), 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 ordinance; except, 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 determining the responsible official and for making the threshold determination. (2) 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. 14.04.090 Mitigated DNS. (1) WAC 173-806-100 (1), hereby adopted by reference, together full in this Chapter. Ordinance No. 1568 Page Five of Ten (2), (4), (5), (6), (7), (8) and (9) are with any amendments, as if set forth in (2) The responsible official should respond to the request for early notice within fifteen (15) working days. The response shall: (a) Be written; (b) State whether the City currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the City to consider a DS; and (c) 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 or clarifications. i •r.�r. i�� rfywW aulull ul MlJ - AaglLlonal uonsiaerarionS (1) Preparation of Draft and final EIS (DEIS and FEIS) and draft and final supplemental EIS (SEIS) is the responsibility of the City Engineer's Office under the direction of the responsible official. Before the City issues an EIS, the responsible official shall be satisfied that it complies with this ordinance and Chapter 197-11 WAC. (2) WAC 173-806-120 (2) and (3) are hereby adopted by reference, together with any amendments, as if set forth in full in this Chapter. 14.04.110 Public Notice. (1) Whenever the City of Port Orchard issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the City shall give public notice as follows: (a) If public notice is required for a nonexempt license, the notice shall state whether a DS or DNS has been issued and when comments are due. (b) If no public notice is required for the permit or approval, the City shall give notice of the DNS or DS by publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located. Ordinance No. 1568 Page Six of Ten (2) Whenever the City issues a DEIS 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: (a) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and (b) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located. (3) Whenever possible, the City shall integrate the public notice required under this section with existing notice procedures for City's nonexempt permit(s) or approval(s) required for the proposal. (4) The City may require an applicant to complete the public notice requirements for the applicant's proposal at his or her expense. (1) The City Engineer shall be responsible for preparation of written comments to the City in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS. (2) This person 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 date from all appropriate departments of the City. 14.04.130 Substantive Authority. (1) The policies and goals set forth in this ordinance are supplementary to those in the existing authorization of the City of Port Orchard. (2) The City may attach conditions to a permit or approval for a proposal so long as: (a) Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this ordinance; and (b) Such conditions are in writing; and (c) The mitigation measures included in such conditions are reasonable and capable of being accomplished; and Ordinance No. 1568 Page Seven of Ten (d) The City has considered whether other local, state, or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and (e) Such conditions are based on one or more policies in subsection four (4) of this section and cited in the license or other decision document. (3) The City may deny a permit or approval for a proposal on the basis of SEPA so long as: (a) A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or SEIS prepared pursuant to this ordinance; and (b) A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and (c) The denial is based on one or more policies identified in subsection (4) of this section and identified in writing in the decision document. (4) The City designates and adopts by reference the following policies as the basis for the City's exercise of authority pursuant to this section: (a) 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: (i) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (ii) Assure for all people of Washington a safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (iii) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (iv) Preserve important historic, cultural, and natural aspects of our national heritage; (v) Maintain, wherever possible, an environment which supports diversity and variety of individual choices; Ordinance No. 1568 Page Eight of Ten (vi) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and (vii) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. (b) 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. (5) Except for permits and variances issued pursuant to other Chapters of the Port Orchard municipal Code, when any proposal or action not requiring a decision of the City Council is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the City Council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within ten days of the decision being appealed. Review by the City Council shall be on a de novo basis. 14.04.140 Appeals. (1) The City of Port Orchard establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680: (a) Any agency or person may appeal the City's procedural compliance with Chapter 197-11 WAC for issuance of the following: (i) A final DNS: Appeal of the DNS must be made to the City Council within five (5) days of the date the DNS is final (WAC 197-11-390(2)(a)). (ii) A DS: Appeal of the DS must be made to the City Council within five (5) days of the date the DS is issued. (iii) An EIS: Appeal of the FEIS must be made to the City Council within five (5) days of the date the permit or other approval is issued. (b) For any appeal under this section, the City Council shall provide for a record that shall consist of the following: (i) Findings and conclusions; (ii) Testimony under oath; and (iii) A taped or written transcript. ordinance No. 1568 Page Nine of Ten (c) The City may require the appellant to provide an electronic transcript of the proceedings at the appellants' expense. (d) The procedural determination by the City's responsible official shall carry substantial weight in any appeal proceeding. (2) The City shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (3) No appeal shall be undertaken by the City pursuant to this Chapter until the party seeking review has paid the appeal fee required in section 14.04.150 (3). Such fee shall be paid prior to the expiration of the time period for the appeal. 14.04.150 Fees. (1) Threshold Determination. For every environmental checklist the City will review when it is lead agency, the City shall collect a fee of seventy-five dollars ($75.00) from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this ordinance for making a threshold determination shall not begin to run until the payment of the fee. (2) Environmental Impact Statement. (a) 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 by the City in preparing an EIS, or a portion of an EIS. The responsible official shall advise the applicant of the projected cost for the EIS prior to actual preparation and such projection shall only be an estimate of the costs and shall not limit the actual cost that may recovered; the applicant shall post bond or otherwise ensure payment of such costs. (b) The responsible official may determine that the City will contract directly with a consultant for preparation of an EIS, or a portion of an EIS, for activities initiated by some persons or entity other than the City and may bill such costs and expenses directly to the applicant. The City may require the applicant to post bond or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the City and the applicant after a call for proposals. Ordinance No. 1568 Page Ten of Ten (c) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under (a) or (b) of this subsection which remain after incurred costs are paid. (3) Appeal: For every appeal the City will hear under section 14.04.130 of the Port Orchard Municipal Code, the City shall collect a fee of two hundred dollars ($200.00) from the party seeking review prior to undertaking the appeal. (4) The City may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this ordinance relating to the applicant's proposal. (5) The City may charge any person for copies of any document prepared under this ordinance, and for mailing the document, in a manner provided by Chapter 42.17 RCW. PASSED by the City Council of the City of Port Orchard and signed by the Mayor and attested by the Clerk in authentication of such passage this llth day of January, 1993. CZ4- - LESLIE J. WEATHERILL, MAYOR ATTEST: C2P��_ 2 Patricia Hower, City Clerk APPROVED AS TO FORM: SPONSORED BY: City Attorney Councilman Morrison