Chapter 23.01
State Environmental Policy Act
Sections:
23.01.030 Adoption by reference.
23.01.040 Additional definitions.
23.01.050 Additional timing consideration.
23.01.070 Lead agency determination and responsibilities.
23.01.080 Environmental checklist.
23.01.100 Preparation of EIS additional considerations.
23.01.110 Additional elements to be covered in an EIS.
23.01.130 Designation of official to perform consulted agency responsibilities for the City.
23.01.140 Designation of responsible official.
23.01.150 Substantive authority.
23.01.160 Environmentally sensitive areas.
23.01.170 Responsibility of agencies SEPA public information.
23.01.190 Notice of action statute of limitations.
23.01.010 Purpose.
The purpose of this chapter is to implement the Revised Statewide SEPA Guidelines (Chapter 197-11 WAC) and certain elements of Chapter 173-800 WAC, as established by the Council on Environmental Policy and the Washington Department of Ecology, as those guidelines apply to the actions of the City of DuPont. (Ord. 305 § 1, Sept. 12th, 1984).
23.01.020 Authority.
The City of DuPont adopts the ordinance codified in this chapter pursuant to WAC 173-806-010 and the mandate of RCW 43.21C.120, commonly known as the State Environmental Policy Act and the SEPA rules, Chapter 197-11 WAC. (Ord. 305 § 2, Sept. 12th, 1984).
23.01.030 Adoption by reference.
Chapter 197-11 WAC, SEPA rules, is hereby adopted by reference. (Ord. 98-608 § 2).
23.01.040 Additional definitions. (Pursuant to WAC 173-806-030).
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) “Department” means any division, subdivision or organizational unit of the City/County established by ordinance, rule, or order.
(b) “SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology.
(c) “Ordinance” means the ordinance, resolution, or other procedure used by the City/County to adopt regulatory requirements.
(d) “Early notice” means the City’s/County’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated DNS procedures). (Ord. 305 § 4, Sept. 12th, 1984).
23.01.050 Additional timing consideration. (Pursuant to WAC 173-806-058).
(a) For nonexempt proposals, the DNS or draft EIS for the proposal shall accompany the City’s/County’s staff recommendation to any appropriate advisory body, such as the Planning Commission.
(b) If the City’s/County’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/County conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 305 § 5, Sept. 12th, 1984).
23.01.060 Use of exemptions. (Pursuant to WAC 173-806-080).
(a) Each department within the City that receives an application for a license or, in the case of governmental proposals, the department initiating the proposal, shall determine whether the license and/or the proposal is exempt. The department’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 apply to the proposal. The City shall not require completion of an environmental checklist for an exempt proposal.
(b) In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.
(c) If a proposal includes both exempt and nonexempt actions, the City may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:
(1) The City shall not give authorization for:
(i) Any nonexempt action;
(ii) Any action that would have an adverse environmental impact; or
(iii) Any action that would limit the choice of alternatives.
(2) A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and
(3) A department 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. 305 § 6, Sept. 12th, 1984).
23.01.070 Lead agency determination and responsibilities. (Pursuant to WAC 173-806-050).
(a) 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 WAC 197-11-922 through WAC 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.
(b) 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.
(c) 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 the 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.
(d) 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 197-11-922 through 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 the 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 such petition on behalf of the City may be initiated by the Mayor.
(e) 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 must approve the agreement.
(f) 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). (Ord. 305 § 7, Sept. 12th, 1984).
23.01.080 Environmental checklist. (Pursuant to WAC 173-806-090).
(a) 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 chapter; 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.
(b) 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.
(c) The City may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:
(1) The City has technical information on a question or questions that is unavailable to the private applicant; or
(2) The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.
(d) SEPA checklists shall be processed as a Type I action subject to a filing fee per DMC 2.03.010. (Ord. 305 § 8, Sept. 12th, 1984; Ord. 05-788 § 1).
23.01.090 Mitigated DNS. (Pursuant to WAC 173-806-100).
(a) As provided in this section and in WAC 197-11-350, the responsible official may issue a determination of nonsignificance (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 department is lead agency; and
(2) Precede the City’s actual threshold determination for the proposal.
(c) The responsible official should respond to the request for early notice within 14 working days. The response shall:
(1) Be written;
(2) State whether the City currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) 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 or clarifications.
(d) As much as possible, the City should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.
(e) When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the City shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal:
(1) If the City indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the City shall issue and circulate a determination of nonsignificance 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. For example, proposal to “control noise” or “prevent stormwater runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200 foot stormwater retention pond at Y location” are adequate.
(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 14-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 the City’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the City should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).
(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. 07-833 § 1(a); Ord. 305 § 9, Sept. 12th, 1984).
23.01.100 Preparation of EIS additional considerations. (Pursuant to WAC 173-806-120).
(a) Preparation of draft and final EISs and SEISs is the responsibility of the City under the direction of the responsible official. Before the City issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.
(b) The draft and final EIS or SEIS shall be prepared by City staff, the applicant, or by a consultant selected by the City or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the City will prepare the EIS, 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 draft and final EIS prior to distribution.
(c) The City may require an applicant to provide information the City does not possess, including specific investigations. 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. 305 § 10, Sept. 12th, 1984).
23.01.110 Additional elements to be covered in an EIS. (Pursuant to WAC 173-806-125).
The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this chapter:
(a) Economy.
(b) Cultural factors.
(c) Social policy analysis. (Ord. 305 § 11, Sept. 12th, 1984).
23.01.120 Public notice. (Pursuant to WAC 173-806-130).
(a) Whenever the City 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:
(1) 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.
(2) If no public notice is required for the permit or approval, the City shall give notice of the DNS or DS by:
(i) Posting the property, for site-specific proposals;
(ii) Publishing notice in a newspaper of general circulation in the County, City, or general area where the proposal is located;
(b) Whenever the City issues a draft EIS under WAC 197-11-455(5) or a supplemental EIS under WAC 197-11-620, notice of the availability of those documents shall be given by:
(1) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and
(2) Publishing notice in a newspaper of general circulation in the County, City, or general area where the proposal is located;
(c) 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.
(d) The City may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 305 § 12, Sept. 12th, 1984).
23.01.130 Designation of official to perform consulted agency responsibilities for the City. (Pursuant to WAC 173-806-140).
(a) The Mayor 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, or reviewing a draft EIS.
(b) This 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 departments of the City. (Ord. 305 § 13, Sept. 12th, 1984).
23.01.140 Designation of responsible official. (Pursuant to WAC 173-806-150).
(a) For those proposals for which the City is the lead agency, the responsible official shall be the Director of Community Development.
(b) 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 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. (Ord. 07-833 § 1(b); Ord. 305 § 14, Sept. 12th, 1984).
23.01.150 Substantive authority. (Pursuant to WAC 173-806-160).
(a) The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the City of DuPont.
(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 significant 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
(5) Such conditions are based on one or more policies in subsection (d) of this section and cited in the license or other decision document.
(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 final EIS or final supplemental EIS 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) below 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:
(i) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(ii) Assure for all people of Washington 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 choice;
(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.
(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 recognizes the need to regulate for the public health, safety, and general welfare for open spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary waste, fire protection, parks, playgrounds, sites for schools and school grounds, public trail easements to and around water areas and areas of public interest. The City shall also consider all other relevant facts and determine whether the public interest will be served by imposition of additional regulations not specifically mentioned herein.
(4) The City recognizes a need to regulate combustible waste material as a catalyst for fire hazard. Accordingly, the City may establish vegetation clearance requirements or otherwise impose conditions designed to regulate fire hazards and potential fire hazards, including but not limited to weeds, grass, vines or other growth that is capable of being ignited and endangering property.
(5) The City further adopts by reference the following documents and materials as additional policies or bases for the exercise of substantive SEPA authority:
(i) DuPont Comprehensive Plan;
(ii) Water Comprehensive Plan;
(iii) Shorelines Master Program;
(iv) DuPont Municipal Code;
(v) DuPont Capital Facilities Plan;
(vi) International Building Code;
(vii) International Fire Code;
(viii) International Urban/Wildland Interface Code; and
(ix) Any and all programs, plans and/or policies adopted and/or amended by the DuPont City Council.
(e) Except for permits and variances issued pursuant to Chapter 90.58 RCW, 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 as follows: A decision of the Community Development Director shall be appealable to the City Hearing Examiner; and a decision of the Hearing Examiner shall be appealable to Pierce County Superior Court. (Ord. 07-833 § 1(c); Ord. 305 § 15, Sept. 12th, 1984; Ord. 537, June 10th, 1996; Ord. 03-748 § 1; Ord. 05-788 §§ 2, 3, 4; Ord. 05-795 § 1).
23.01.160 Environmentally sensitive areas. (Pursuant to WAC 173-806-190).
(a) DuPont shall designate environmentally sensitive areas under the standards of WAC 197-11-908 and shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the Mayor and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing.
(b) The City shall treat proposals located wholly or partially within an environmentally sensitive area no differently than other proposals under this chapter, making a threshold determination for all such proposals. The City shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area.
(c) Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped. (Ord. 305 § 16, Sept. 12th, 1984).
23.01.170 Responsibility of agencies SEPA public information. (Pursuant to WAC 173-806-040).
(a) 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. (Ord. 305 § 17, Sept. 12th, 1984).
23.01.180 Fees. (Pursuant to WAC 173-806-200).
The City shall require the following fees for its activities in accordance with the provisions of this chapter:
(a) Threshold Determination. For every environmental checklist the City will review when it is lead agency, the City shall collect a filing fee per DMC 2.03.010 from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.
(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 by the City in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.
(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 may bill such costs and expenses directly to the applicant. Such consultants shall be selected by mutual agreement of the City and applicant after a call for proposals. The City may require the applicant to post bond or otherwise ensure payment of such costs.
(3) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (b)(1) or (2) of this section which remain after incurred costs are paid.
(c) The City may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.
(d) The City shall not collect a fee for performing its duties as a consulted agency.
(e) 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 Chapter 42.17 RCW. (Ord. 305 § 18, Sept. 12th, 1984; Ord. 05-788 § 5).
23.01.190 Notice of action statute of limitations. (Pursuant to WAC 173-806-173).
(a) The City applicant for, or proponent of, an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.
(b) The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the City Clerk or applicant or proponent pursuant to RCW 43.21C.080. (Ord. 305 § 19, Sept. 12th, 1984).
23.01.200 Severability. (Pursuant to WAC 173-806-220).
If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected. (Ord. 305 § 20, Sept. 12th, 1984).
23.01.210 Appeals of SEPA threshold determination and adequacy of final environmental impact statement.
(a) All appeals under this chapter shall be conducted in accordance with RCW 43.21C.075 concerning appeals of environmental determinations. Except in the following cases, appeals on environmental determinations shall be heard at the same time as appeals on the underlying governmental action:
(1) An appeal of a determination of significance;
(2) An appeal of a procedural determination made by the City when the City is a project proponent, or is funding a project, and chooses to conduct its review under this chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;
(3) An appeal of a procedural determination made by the City on a nonproject action; or
(4) An appeal to the local legislative authority under RCW 43.21C.060 or other applicable State statutes.
(b) Appeal to the Hearing Examiner.
(1) Initiating an Appeal.
(A) Threshold determination or adequacy of a final environmental impact statement for a proposed land use action shall be appealable to the Hearing Examiner. All appeals under this chapter shall be made as set forth below.
(B) Appeal Procedure/Fee. A notice of appeal, together with a filing fee as set forth in the City fee schedule, shall be filed with the Director of Community Development; referred to as the Director herein.
(C) Time Requirement. An appeal shall be delivered, with the appropriate appeal fee, to the Director by mail or by personal delivery before 5:00 p.m. within 14 days of the issuance of the threshold determination or adequacy of a final environmental impact statement. Failure to pay the appeal fee within the appeal period is deemed a failure to timely appeal. Appeals received by mail after 5:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked. If the last day for filing an appeal falls on a weekend day or holiday, the last day for filing shall be the next working day. The failure to timely file an appeal shall be considered jurisdictional and untimely filed appeals shall be dismissed by the Examiner. The Examiner is authorized to toll appeal deadlines as authorized by the common law doctrine of equitable tolling.
(D) Content of the Appeal. Appeals shall contain:
(i) The name and mailing address of the appellant and the name and address of his/her representative, if any;
(ii) The appellant’s legal residence or principal place of business;
(iii) A copy of the decision which is appealed;
(iv) The individual grounds upon which the appellant relies;
(v) A concise statement of the factual and legal reasons for the appeal;
(vi) The specific nature and intent of the relief sought;
(vii) A statement that the appellant has read the appeal and believes the contents to be true, followed by his/her signature and the signature of his/her representative, if any. If the appealing party is unavailable to sign the appeal, it may be signed by his/her representative.
(E) Dismissal of Appeal. The Hearing Examiner may summarily dismiss an appeal without hearing when such appeal is determined by the Hearing Examiner to be without merit on its face, frivolous, or brought merely to secure a delay, or that the appellant lacks legal standing to appeal.
(F) Effect of Appeal. The filing of an appeal of a threshold determination or adequacy of a final environmental impact statement (FEIS) shall stay the effect of such determination or adequacy of the FEIS and no major action in regard to a proposal may be taken during the pendency of an appeal and until the appeal is finally disposed of by the Hearing Examiner. A decision to reverse the determination of the responsible official and uphold the appeal shall further stay any decision, proceedings, or actions in regard to the proposal.
(2) Withdrawal of Appeal. An appeal may be withdrawn, only by the appellant, by written request filed with the Director. The Director shall inform the Hearing Examiner and responsible official of the withdrawal request. If the withdrawal is requested before the response of the responsible official, or before serving notice of the appeal, such request shall be permitted and the appeal shall be dismissed without prejudice by the Hearing Examiner.
(3) Response of the Director. The Director shall respond in writing to the appellant indicating receipt of the notice of appeal and forwarding it to the Hearing Examiner. The Director, or the responsible official, shall forward the record upon which the determination was made to the Hearing Examiner and appellant no later than seven days prior to hearing.
(4) Hearing.
(A) The hearing of an appeal of a determination of nonsignificance with or without mitigations or adequacy of an environmental impact statement on a proposed land use action which requires a hearing shall be held concurrently with the hearing on the underlying land use application request and shall be conducted in accordance with this chapter and Chapter 1.11 DMC.
(B) The hearing of an appeal of a determination of nonsignificance with or without mitigations or adequacy of the final environmental impact statement for a proposal which requires an administrative land use decision shall be scheduled upon receipt of a valid appeal. If the SEPA determination and land use decision are appealed, the SEPA appeal and the land use hearing shall be held concurrently.
(C) The hearing of an appeal by an applicant of a determination of significance issued by the responsible official shall be expeditiously scheduled upon receipt of a valid appeal.
(D) The hearing shall be conducted in accordance with the provisions of Chapter 1.11 DMC.
(E) The Hearing Examiner may affirm the decision of the responsible official or the adequacy of the environmental impact statement, or remand the case for further information; or the Examiner may reverse the decision if the administrative findings, inferences, conclusions, or decisions are:
(i) In violation of constitutional provisions as applied; or
(ii) The decision is outside the statutory authority or jurisdiction of the City; or
(iii) The responsible official has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure; or
(iv) In regard to challenges to the appropriateness of the issuance of a DNS or mitigated DNS clearly erroneous in view of the public policy of SEPA; or
(v) In regard to challenges to the adequacy of an EIS shown to be inadequate employing the “rule of reason.”
(F) Evidence – Burden of Proof. In each particular proceeding, the appellant shall have the burden of proof, and the determination of the responsible official shall be presumed prima facie correct and shall be afforded substantial weight. Appeals shall be limited to the records of the responsible official.
(c) Appeals of Nonland Use, Shoreline, and Other Actions.
(1) Appeals for environmental determinations which are not related to land use actions, including building permits, shall be made to Superior Court.
(A) The SEPA appeal period commences upon issuance of the underlying permit, not with the issuance of the SEPA determination.
(B) Appeals shall be made to Superior Court within 21 days of the action.
(2) Appeals of nonproject actions (e.g., decisions made in the course of planning under the Growth Management Act/GMA or the Shoreline Management Act/SMA) shall be appealable to the Growth Management Hearings Board.
(A) Appeals of GMA actions shall be made within 60 days of the City’s publication of the adopting ordinance;
(B) Appeals of SMA actions shall be made within 60 days of the City’s publication of the Department of Ecology’s approval of the adopted document.
(3) Appeals of other actions shall be processed in accordance with the appeal provisions of the underlying action.
(d) Notice of Action Pursuant to RCW 43.21C.080. Notice of any action taken by a governmental agency may be publicized by the applicant for, or proponent of, such action in the form as provided by the Planning and Community Development and WAC 197-11-990. The publication establishes a time period wherein any action to set aside, enjoin, review, or otherwise challenge any such governmental action on grounds of noncompliance with the provisions of SEPA must be commenced, or be barred. Any subsequent action of the City for which the regulations of the City permit use of the same detailed statement to be utilized, and as long as there is not substantial change in the project between the time of the action and any such subsequent action, shall not be set aside, enjoined, reviewed, or thereafter challenged on grounds of noncompliance with RCW 43.21C.030(2)(c). (Ord. 19-1061 § 2 (Exh. A)).