Chapter 19.04 STATE ENVIRONMENTAL POLICY ACT

Sections 19.04.020 through 19.04.058 contain the basic requirements that apply to the SEPA process. The city adopts the following sections of Chapter 197-11 WAC by reference:

WAC 197-11-040 Definitions

197-11-050 Lead agency

197-11-055 Timing of the SEPA process

197-11-060 Content of environmental review

197-11-070 Limitations on actions during SEPA process

197-11-080 Incomplete or unavailable information

197-11-090 Supporting documents

197-11-100 Information required of applicants

(Ord. 393 § 2, 1984: Ord. 192 § 2, 1976)

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. “Adequate capital facilities” means facilities which have the capacity to serve development without decreasing levels of service below locally established minimums.

B. “Available capital facilities” means facilities or services that are in place, or that a financial commitment is in place to provide the facilities or services within a specified time.

C. “Capacity” means the measure of the ability to provide a level of service on a public facility.

D. “Capital improvement” means physical assets constructed or purchased to provide, improve, or replace a public facility and which are large-scale and high in cost. The cost of a capital improvement is generally nonrecurring and may require multiyear financing.

E. “Concurrency” means adequate capital facilities are available when the impacts of development occur. This definition includes the two concepts of “adequate capital facilities” and “available capital facilities” defined in subsections A and B of this section.

F. “Department” means any division, subdivision or organizational unit of the city established by ordinance, rule or order.

G. “Development” means any action as defined in WAC 197-11-704, that is not exempt from SEPA review pursuant to RCW 43.21C.210 through 43.21C.270, WAC 197-11-800 through 197-11-880, or Section 19.04.070 and involves a proposed land use, zoning or rezoning, comprehensive plan amendment, subdivision, planned unit development, planned area development, building permit, binding site plan, or any other property development action permitted or regulated by the Ocean Shores Municipal Code.

H. “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 (mitigated determination of nonsignificance (DNS) procedures).

I. “Infrastructure” means those manmade structures which serve the common needs of the population, such as: sewage disposal systems, potable water wells serving a system, solid waste disposal sites or retention areas, stormwater systems, utilities, bridges and roadways.

J. “Levels of service” means an indicator of the extent or degree of service provided by, or proposed to be provided by, a facility based on and related to the operational characteristics of the facility. Level of service means an established minimum capacity of capital facilities or services provided by capital facilities that must be provided per unit of demand or other appropriate measure of need.

K. “Open space” means undeveloped land that serves a functional role in the life of the community. This term is subdivided into the following:

1. “Pastoral or recreational open space” are areas that serve active or passive recreational needs, e.g., federal, state, regional and local parks, forests, historic sites, etc.

2. “Utilitarian open space” are those areas not suitable for residential or other development due to the existence of hazardous and/or environmentally sensitive conditions, which can be protected through open space, e.g., critical areas, airport flight zones, etc. This category is sometimes referred to as “health and safety” open space.

3. “Corridor or linear open space” are areas through which people travel, and which may also serve an aesthetic or leisure purpose. For example, an interstate highway may connect point A to point B, but may also offer an enjoyable pleasure drive for the family. This open space is also significant in its ability to connect one residential or leisure area with another.

L. “Ordinance” means the ordinance, resolution, or other procedures used by the city to adopt regulatory requirements.

M. “Public facilities” includes streets, roads, highways, sidewalks, street and road lighting systems, traffic signals, domestic water systems, storm and sanitary sewer systems, parks and recreational facilities, fire protection facilities and equipment, law enforcement facilities and equipment, emergency medical services and equipment, and municipal buildings. These physical structures are owned or operated by a government entity, which provides or supports a public service.

N. “Public services” includes fire protection and suppression, emergency medical services, law enforcement, public health, recreation, environment protection, general municipal services, and other governmental services.

O. “SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology.

P. “Transportation level of service standards” means a measure which describes the operational condition of the travel stream, usually in terms of speed and travel time, freedom to maneuver, traffic interruptions, comfort, convenience, and safety.

(Ord. 808 § 1, 2006: Ord. 393 § 3, 1984: Ord. 192 § 3, 1976)

19.04.040 Designation of responsible official.

A. For those proposals for which the city is the lead agency, the responsible official shall be the city planner or in his or her absence the public works director or designee.

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 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 173-802-020.

C. The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.56 RCW.

(Ord. 945 § 1 (part), 2014; Ord. 860 § 1 (part), 2009; Ord. 611, 1997; Ord. 393 § 4, 1984: Ord. 192 § 4, 1976)

19.04.050 Lead agency determination and responsibilities.

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 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.

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 responsible official.

E. Departments of the city are authorized to make agreements as to lead agency status of 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.

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. 393 § 5, 1984: Ord. 192 § 5, 1976)

19.04.053 Transfer of lead agency status to state agency.

For any proposal for a private project where the city would be the lead agency and for which one or more state 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 any other agencies with jurisdiction over the proposal. (Ord. 393 § 6, 1984: Ord. 192 § 6, 1976)

19.04.055 Additional considerations in time limits applicable to the SEPA process.

The following time limit (expressed in calendar days) shall apply when the city processes licenses for all private projects and those governmental proposals submitted to the city by other agencies: The city shall complete threshold determinations on actions where the applicant recommends in writing that the environmental impact statement (EIS) be prepared, because of the probable significant adverse environmental impact(s) described in the application, within fifteen days of receiving an adequate application and completed checklist. (Ord. 393 § 7, 1984: Ord. 192 § 12, 1976)

19.04.058 Additional timing considerations.

A. For nonexempt proposals, the DNS or final EIS for the proposal shall accompany the city’s staff recommendation to any appropriate advisory body, such as the planning commission.

B. 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.

(Ord. 393 § 8, 1984: Ord. 192 § 7, 1976)

19.04.065 Purpose of Sections 19.04.065 through 19.04.100—Adoption by reference.

Sections 19.04.065 through 19.04.100 of the chapter contain the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. These sections also contain rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections by reference, as supplemented in Sections 19.04.070 through 19.04.100:

WAC 197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination required.

197-11-315 Environmental checklist.

197-11-330 Threshold determination process.

197-11-335 Additional information.

197-11-340 Determination of nonsignificance (DNS).

197-11-350 Mitigated DNS.

197-11-360 Determination of significance (DS)/initiation of scoping.

197-11-390 Effect of threshold determination.

(Ord. 393 § 9, 1984: Ord. 192 § 8, 1976)

19.04.070 Flexible thresholds for categorical exemptions.

A. The city establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(b):

1. The construction or location of any residential structures of four dwelling units.

2. The construction of a barn, loafing shed, farm equipment storage building, produce storage or packing structure, or similar agricultural structure, covering ten thousand square feet, and to be used only by the property owner or his or her agent in the conduct of farming the property. This exemption shall not apply to feed lots.

3. The construction of an office, school, commercial, recreational, service, or storage building with four thousand square feet of gross floor area and with associated parking facilities designed for twenty automobiles.

4. The construction of a parking lot designed for twenty or fewer automobiles.

B. The city established the following exempt level for minor new construction under WAC 197-11-800(1)(b):

1. Any landfill or excavation of five hundred cubic yards throughout the total lifetime of the fill or excavation; and any fill or excavation classified as a Class I, II, or III forest practice under RCW 76.09.050 or regulations thereunder.

C. Whenever the city establishes new exempt levels under this section, it shall send them to the Department of Ecology, Olympia, Washington, pursuant to WAC 197-11-800(1)(c).

(Ord. 945 § 1 (part), 2014; Ord. 817 § 1, 2006: Ord. 697 § 2, 2000)

19.04.080 Use of exemptions.

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 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:

a. Any nonexempt action;

b. Any action that would have an adverse environmental impact; or

c. Any action that would limit the choice of alternatives;

2. 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. 393 § 11, 1984: Ord. 192 § 10, 1976)

19.04.090 Environmental checklist.

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.

(Ord. 393 § 12, 1984: Ord. 192 § 11, 1976)

19.04.100 Mitigated determination of nonsignificance (DNS).

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 classifications of, the proposal made by the applicant.

B. An applicant may request in writing early notice of whether a determination of significance (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 fifteen 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 is/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 of clarifications.

D. As much as possible and consistent with the process identified in Section 19.04.164, 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 or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen 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 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. For example, proposals 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 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 of 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 clarification or changes in its threshold determination.

(Ord. 808 § 2, 2006: Ord. 393 § 13, 1984: Ord. 192 § 13, 1976)

19.04.110 Purpose of Sections 19.04.110 through 19.04.125—Adoption by reference.

Sections 19.04.110 through 19.04.125 of this chapter contain the rules for preparing environmental impact statements. The city adopts the following sections by reference, as supplemented by Sections 19.04.120 and 19.04.125:

WAC 197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping. (Optional)

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

197-11-442 Contents of EIS on nonproject proposals.

197-11-443 EIS contents when prior nonproject EIS.

197-11-444 Elements of the environment.

197-11-448 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 393 § 14, 1984: Ord. 192 § 14, 1976)

19.04.120 Preparation of EIS—Additional considerations.

A. Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of city building department 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 WAC Chapter 197-11.

B. The DEIS and FEIS or draft and final 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 DEIS and FEIS 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. 393 § 15, 1984: Ord. 192 § 15, 1976)

19.04.125 Additional elements to be covered in an EIS.

The following additional element is part of the environment for the purpose of EIS content, but does not add to the criteria for threshold determinations or perform any other function or purpose under this ordinance:

A. Economy.

(Ord. 393 § 16, 1984)

19.04.128 Purpose of Sections 19.04.128 through 19.04.140—Adoption by reference.

Sections 19.04.128 through 19.04.140 of this chapter contain rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearing. The city adopts the following sections by reference, as supplemented in Sections 19.04.130 through 19.04.140:

WAC 197-11-500 Purpose of this part.

197-11-502 Inviting comment.

197-11-504 Availability and cost of environmental documents.

197-11-508 SEPA register.

197-11-535 Public hearings and meetings.

197-11-545 Effect of no comment.

197-11-550 Specificity of comments.

197-11-560 FEIS response to comments.

197-11-570 Consulted agency costs to assist lead agency.

(Ord. 393 § 17, 1984)

19.04.130 Public notice.

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 posting at the city public works office.

3. Whenever the city issues a DS under WAC 197-11-360(3), the city shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.

B. 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:

1. Indicating the availability of the DEIS in any public notice required for a nonexempt license and providing additional notice by at least one of the methods described in paragraphs 2 through 7 of this subsection;

2. Posting the property, for site-specific proposals;

3. Publishing notice in a newspaper of general circulation in the county, city or general area where the proposal is located;

4. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

5. Notifying the news media;

6. Placing notices in appropriate regional, neighborhood, ethnic or trade journals; and/or

7. Publishing notice in agency newsletters and/or sending notice to agency mailing lists (general lists or specific lists for proposals or subject areas).

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. 393 § 18, 1984)

19.04.140 Designation of official to perform consulted agency responsibilities for the city.

A. The planning director or in his absence the city manager or his designee 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 planning director or in his absence the city manager or his designee 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. 611, 1997; Ord. 393 § 19, 1984)

19.04.150 Purpose of this section—Adoption by reference.

This section contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the city’s own environmental compliance. The city adopts the following sections by reference:

WAC 197-11-600 When to use existing environmental documents.

197-11-610 Use of NEPA documents.

197-11-620 Supplemental environmental impact statement procedures.

197-11-625 Addenda—Procedures.

197-11-630 Adoption—Procedures.

197-11-635 Incorporation by reference—Procedures.

197-11-640 Combining documents.

(Ord. 393 § 20, 1984)

19.04.155 Purpose of Sections 19.04.155 through 19.04.173—Adoption by reference.

Sections 19.04.155 through 19.04.173 of this chapter contain rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. They also contain procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following sections by reference:

WAC 197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 393 § 21, 1984)

19.04.160 Substantive authority.

A. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city.

B. Pursuant to RCW 43.21C.060, the city shall attach conditions to a permit or approval for a proposal to mitigate any specific probable adverse environmental impacts when the following factors are met:

1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and

2. Such conditions are in writing; and

3. The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

4. The city has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

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. Pursuant to RCW 43.21C.060, the city may deny a permit or approval for a proposal on the basis of SEPA due to specific probable adverse environmental impacts when the following factors are met:

1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this chapter; and

2. A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

3. The denial is based on one or more policies identified in subsection D of this section and identified in writing in the decision document.

D. The city designates and adopts by reference the following policies as the basis for the city’s exercise of authority pursuant to this section:

1. The city shall use all practicable means consistent with other essential considerations of state policy to improve and coordinate plans, functions, programs and resources to the end that the state and its citizens may:

a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

b. Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

c. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

d. Preserve important historic, cultural and natural aspects of our national heritage;

e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

f. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

2. The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

3. Because development in the city of Ocean Shores increases demand for and use of the city’s public services, public facilities, and open space by bringing additional residents, visitors, businesses, employees, and customers into the city, the impacts of development should be addressed as follows:

a. Applicants should take appropriate action to ensure that their developments do not reduce the availability, productivity and usefulness of existing public facilities, public services, and open space below levels of service established in subsection (D)(4) of this section.

b. Proportional mitigation should be required from each applicant for the impacts attributable to the applicant’s development on existing and planned public facilities, public services and open space.

4. Adoption by Reference of Documents and Levels of Service.

a. The city adopts by reference the policies from and any levels of service established in the following city codes, ordinances, resolutions, plans, manuals and standards as exist or as amended in the future:

i. Comprehensive plan, adopted September 28, 1998.

ii. 1996-2000 parks and recreation plan.

iii. 2002-2006 parks-recreation plan update.

iv. Fire emergency master plan, dated October 1993.

v. “Managing Fire and Rescue Services,” International City/County Management Association, Dennis Compton and John Granito, editors.

vi. The Fire Chief’s Handbook, Sixth Edition, Fire Engineering.

vii. American Society of Highway and Transportation Officials (ASHTO) Roadway Design Standards (latest version).

b. By way of example, the following list, though not exhaustive, includes levels of service established in the documents incorporated by reference in subsection (D)(4)(a) of this section:

i. Transportation level of service: “C” (based on the Highway Capacity Manual).

ii. Parks Levels of Service.

Type	Use	Recommended Acreage	Acreage per 1,000 population
Regional park/reserve	Passive and natural	50+	5.0—10.0
Community park	Active and passive natural area	10+	2.5
Neighborhood park	Active and passive	2—10	1.0
School sites	Active	—	2.0
Urban malls and squares	Passive	—	0.25

iii. Recreational Facilities Levels of Service.

Facility Type	Facility/1,000 Population
Baseball (90')	1/5,000
Baseball (60')	1/5,000
Basketball (goal)	1/1,000
Boat launch	1/7,500
Camping (sites)	0.35/1,000
Football/soccer	1/6,000
Golf course	1/25,000
Picnic area (tables)	6/1,000
Playfield	1/1,000
Playground	1/1,000
Softball	1/2,500
Swim beach	10 LF/1,0001
Swim pool (indoor)	1/10,0002
Swim pool (outdoor)	1/20,0003
Tennis	1/2,000
1 Beach area should have 50 square feet of land and 50 square feet of water per user. There should be 3 to 4 acres of supporting land/acre of beach.
2 Should provide 15 square feet per user.
3 Should provide 20 square feet per user.

iv. Library level of service: 5.4 volumes/capita.

v. Fire Services Levels of Service.

(A) Five-minute response time to eighty-five percent of the city.

(B) Fire fighting personnel that meet whichever of the following standards that triggers the greatest total demand for fire fighting personnel for twenty-four-hour coverage (it takes approximately three to four fire fighters to provide twenty-four-hour coverage for each fire fighting position):

(1) One fire fighter per one thousand resident population.

(2) One fire fighter per one thousand nine hundred fifty daily average nonresident visitors.

(3) Two personnel per engine company.

(4) Three personnel per truck company.

(vi) Fire Facilities Levels of Service.

(A) One truck per four thousand five hundred resident population.

(B) One truck per seven thousand eight hundred daily average nonresident visitors.

(D) One engine per two thousand six hundred daily average nonresident visitors.

(vii) Emergency Medical Services Levels of Service.

(A) Five-minute response time to eighty-five percent of the city.

(B) Two personnel per advance life support equipped ambulance.

(viii) Emergency Medical Facilities Levels of Service.

(A) One advance life support equipped ambulance per one thousand five hundred resident population.

(B) One advance life support equipped ambulance per two thousand six hundred daily average nonresident visitors.

(ix) Law Enforcement Services Levels of Service.

(A) 3.46 officers per one thousand resident population.

(B) 1.92 officers per one thousand daily average nonresident visitors.

(x) Law enforcement facilities level of service: one car for every one officer.

c. In the event of any inconsistency between the standards in the various documents incorporated by reference in subsection (D)(4)(a) of this section, the standards and policies of the city comprehensive plan shall govern. In the event of any inconsistency between the levels of service listed in subsection (D)(4)(b) of this section and those found in the documents listed in subsection (D)(4)(a) of this section, the standards and levels of service listed in subsection (D)(4)(b) of this section shall govern over those standards and levels of service in the documents in subsection (D)(4)(a) of this section.

(Ord. 808 § 3, 2006: Ord. 393 § 22, 1984)

19.04.162 Appeals.

A. The city establishes the following administrative appeal procedures under RCW 43.21C.060, 43.21C.075, 43.21C.080 and WAC 197-11-680:

1. Appeal of the intermediate steps under SEPA (e.g., lead agency determination, scoping, draft EIS adequacy) shall not be allowed.

2. Appeals of SEPA procedures shall be limited to review of a final threshold determination (DS, DNS or mitigated DNS) or final EIS. These appeals may occur prior to the city of Ocean Shores’ final decision on a proposed action.

3. Only one administrative appeal of a threshold determination or of the adequacy of an EIS is allowed; successive administrative appeals on these issues within the city are not allowed. This limitation does not apply to administrative appeals before another agency.

4. Except as provided in subsection (A)(5) of this subsection, any allowed appeals of procedural and substantive determinations under SEPA shall be consolidated with a hearing on or appeal of the underlying governmental action in a single open record hearing before the city of Ocean Shores hearing examiner. The hearing or appeal shall be one at which the city of Ocean Shores hearing examiner will render a decision or recommendation on the underlying proposed action. For example, an appeal of the adequacy of an EIS must be consolidated with a hearing on or appeal of the city’s decision or recommendation on the proposed action, if both proceedings are allowed in the city’s procedures. If the city of Ocean Shores’ procedures do not provide for a hearing on or appeal of the underlying governmental action, the city shall not hold a SEPA administrative appeal, except as provided in subsection (A)(5) of this subsection.

5. Appeals of the following four SEPA procedural or substantive determinations need not be consolidated with any appeal or hearing on the underlying proposed action:

a. An appeal of a determination of significance (DS).

b. An appeal of a procedural determination made by the city when it is the project proponent or is funding a project and chooses to conduct its review under SEPA, including any appeals of its procedural determinations, prior to submitting an application for a project permit. Subsequent appeals of substantive determinations by an agency with jurisdiction over the proposed project shall be allowed under the SEPA appeal procedures of the agency with jurisdiction.

c. A procedural determination made by the city on a nonproject action.

d. An appeal to the city council under RCW 43.21C.060 or other applicable state statutes.

6. A closed record appeal is allowed to the city council of any decision by the city relating to the city’s conditioning or denial of a proposal under authority of SEPA, if the hearing examiner’s decision or recommendation on the underlying governmental action is subject to a closed record appeal to or hearing before the city council pursuant to Section 17.61.160 or 17.61.170. The appeal shall be consolidated with any appeal or hearing of the underlying governmental action.

7. For threshold determinations issued prior to a decision on a project action, any administrative appeal allowed under this section shall be filed within fourteen days after the determination has been made and is appealable. Any administrative appeal of a procedural or substantive determination under SEPA issued at the same time as the decision on the project action shall be filed within fourteen days after notice of the decision has been made and is appealable. In order to allow public comment on a DNS prior to requiring an administrative appeal to be filed, this appeal period shall be extended for an additional seven days if the appeal is of a DNS for which public comment period is required under the provisions of this chapter or Chapter 197-11 WAC. Nothing in this subsection alters the requirements of subsections (A)(4) and (5) of this section.

B. Record.

1. For any appeal under this subsection, the city shall provide for a record that shall consist of the following:

a. Findings and conclusions;

b. Testimony under oath; and

c. A taped or written transcript.

2. The city may require the appellant to provide an electronic transcript.

C. Judicial Appeals.

1. Judicial appeals of procedural and substantive compliance with SEPA must comply with RCW 43.21C.075 and WAC 197-11-680(4).

2. If an administrative appeal of determinations relating to SEPA is available under the procedures of this section, that procedure must be used before any person may seek judicial review of any SEPA issue that could have been reviewed under such procedures.

3. 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.

4. Pursuant to RCW 43.21C.080, notice of any action taken by the city may be publicized by such agency or the applicant for, or the proponent of, such action.

D. The procedural determination by the city’s responsible official shall carry substantial weight in any appeal proceeding.

(Ord. 808 § 4, 2006)

19.04.164 Concurrency.

A. Purpose.

1. Pursuant to RCW 43.21C.060, WAC 197-11-330(c), and Section 19.04.160, it is the purpose of this section to provide a mechanism by which the city identifies a proposal’s direct impacts to public facilities, public services, and open spaces from development in and around the city and identifies alternatives for mitigating those impacts.

2. This section achieves comprehensive plan Goal PF 1 in the 1998 comprehensive plan of ensuring that public facilities and services are high quality, fully maintained, and cost-effective and ensuring that necessary facilities and services can adequately serve development when it is occupied and used without negatively impacting existing service levels.

3. This section implements the following comprehensive plan policies in the 1998 comprehensive plan:

a. Comprehensive plan policy PF 1.2: Assure funding needs for capital improvements are identified and planned for so that adequate funds are available to assure completion of necessary facilities in concurrence with development. Provide for mechanisms that aim to place more of the burden on tourists and developments to provide the services they require.

b. Comprehensive plan policy PF 1.7: Develop a concurrency requirement that availability and adequacy of existing services be demonstrated to serve development at the time it is needed or provides for impact mitigation.

c. Comprehensive plan policy CIP 1.3: Use the State Environmental Policy Act (SEPA) process to ensure that public facilities are developed concurrently with overall development.

d. Comprehensive plan policy CIP 1.5: Maintain existing service standards.

e. Comprehensive plan policy CIP 1.8: Maintain consistency between the land use and capital facilities elements of this plan by:

i. Adopting a concurrency ordinance;

ii. Reducing costs, or limiting growth through a modification of the comprehensive plan’s land use element, if future funding appeals are insufficient to implement the capital improvement plan; and

iii. Lowering the level of service below the level of service goal only as a final resort.

f. Comprehensive plan policy T 1.4: Improve efficiency of traffic flow in the arterial network by monitoring traffic, upgrading traffic control devices and using traffic management techniques including the development of level of service standards.

B. Process.

1. The identification of impacts and determination of mitigation measures required by this section shall be made simultaneously with the city’s mitigated determination of nonsignificance (MDNS) or environmental impact statement (EIS).

2. The mitigation measures identified pursuant to this chapter shall be incorporated into the MDNS or EIS and notice of the mitigation measures shall be given consistent with notice of the underlying threshold determination or EIS pursuant to Section 19.04.130.

3. Mitigation measures imposed pursuant to this chapter shall be deemed conditions of the development permit and may be enforced by any suitable means.

4. Impact identification and resulting mitigation measures shall be deemed final for purposes of appeal when the underlying threshold determination becomes final under the Ocean Shores Municipal Code and Chapter 43.21C RCW.

5. Decisions made under this section shall be appealable pursuant to Section 19.04.162. The city’s decision shall carry substantial weight in any appeal proceeding.

C. Identification of Impacts of Development.

1. Before a development is given any development approval or is allowed to proceed, the city shall identify all probable significant adverse impacts of the development, if any, through the SEPA process.

2. The city shall consider but not be limited to the following items in identifying or quantifying an impact, to the extent the item is applicable to the development:

a. The substantive policies adopted pursuant to Section 19.04.160(D), including the documents incorporated by reference in Section 19.04.160(D)(4), and any levels of service established therein.

b. Technical documents which discuss or analyze public facilities, public services and open space or adopted city plans.

c. Predevelopment versus postdevelopment demands upon public facilities and services.

d. Impact of the development on the size, number, capacity condition, availability, proximity or other characteristics of public facilities, public services and open space.

e. Likelihood that an impact from a development when aggregated with impacts of future development in the immediate vicinity would require mitigation due to its cumulative effects.

f. Nature, quantity, cost, identified completion date, if any, and pro rata share, if applicable, of contributions, improvements or dedications to public facilities and services arising from the developments, including those offered or suggested by the applicant.

g. Likelihood that the development will benefit from or use public facilities, public services and open space.

h. Existing or planned alternatives for financing capital improvements.

i. Whether the development furthers the public health, safety and general welfare.

j. Likelihood of city growth through annexation of areas adjacent to the development.

k. Whether impacts have been previously mitigated, in whole or in part.

l. Any other criteria useful for identifying or quantifying impacts and deemed relevant by the city.

3. Cost of Additional Studies. The cost of any special investigation, analysis or report necessary for identification or quantification of impacts related to a development shall be borne by the applicant.

D. Mitigation Measures.

1. The city shall not give a development approval unless satisfactory provisions have been made to mitigate identified impacts and such provisions meet the policies and goals of this chapter and of the city’s development regulations.

2. Review. The city shall review the identified impacts and any proposed alternatives for mitigating such impacts to determine whether the policies and goals of this chapter and of the city’s development regulations can be met. Upon completion of review, the responsible official shall recommend such conditions of development as are consistent with the review.

3. Mitigation Alternatives. The following alternatives or any combination, either on-site or off-site, may be used as necessary to mitigate or avoid identified impacts. The list is not exhaustive and does not purport to describe all available or viable alternatives. Other alternatives may be used as necessary to achieve the policies and goals of this chapter and of the city’s development regulations:

a. Modification of the development so that identified impacts are avoided.

b. Dedication of land to the city for public purposes.

c. Voluntary contributions or payments offered by the applicant for use in mitigating on-site or off-site impacts as authorized. Such voluntary contributions shall not be required as a condition of development approval and shall be subject to the limitations of RCW 82.02.020 as now existing or hereafter amended; provided, however, that persons entitled to a refund and/or payment of interest may voluntarily and in writing waive their right to such refund or payment in whole, in part or for a specified time period to facilitate completion of the designated improvement. No such waiver shall be required as a condition of development approval, but when made shall be recorded with the Grays Harbor County auditor and shall be binding on subsequent owners.

d. Contractual arrangements between the applicant and the city whereby the applicant constructs, funds or commits to construct or fund public facilities and open space which mitigate identified impacts.

e. Any contractual agreement, including but not limited to latecomers agreement, no-protest agreement, maintenance agreement, or funding agreement which mitigates any identified impact.

f. Any alternative offered by the applicant and satisfactory to the responsible official having the effect of mitigating identified impacts.

g. If the responsible official determines that identified impacts would be best mitigated on a regional basis, the responsible official may independently or in conjunction with any other jurisdiction prepare or have prepared a cost estimate and define a benefit area for the regional improvement. The fair share of the total costs to be allocated to the proposed development shall then be determined.

4. Offset or Credits for Other Contributions or Mitigation. Prior to the city’s identification of significant probable adverse impacts associated with proposed development, the applicant may request that the city consider and give fair credit for other contributions or mitigation that address some or all of the proposed development’s impacts. At its discretion, the city may consider and give credit for those other contributions or mitigation when making its assessment of whether satisfactory provision has been made to mitigate identified impacts of proposed development. In determining whether the city will provide credit for other contributions or mitigation, the city will consider the extent to which the other contributions or mitigation address the same specific environmental impact resulting from the proposed development and the extent to which the applicant has committed to or fulfilled the other contributions or mitigation. For example, if an applicant has made contributions to a local improvement district for improvements to streets impacted by the proposed development, the city may take those contributions into account when determining whether adequate provisions have been made to mitigate impact of the proposed development.

(Ord. 808 § 5, 2006)

19.04.173 Notice—Statute of limitations.

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 planning director or in his absence the city manager or his designee or county auditor, applicant or proponent pursuant to RCW 43.21C.080.

(Ord. 611, 1997; Ord. 393 § 23, 1984)

19.04.175 Purpose of this section—Adoption by reference.

This section contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by WAC 173-802-040:

WAC 197-11-700 Definitions.

197-11-702 Act.

197-11-704 Action.

197-11-706 Addendum.

197-11-708 Adoption.

197-11-710 Affected tribe.

197-11-712 Affecting.

197-11-714 Agency.

197-11-716 Applicant.

197-11-718 Built environment.

197-11-720 Categorical exemption.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/city.

197-11-730 Decision maker.

197-11-732 Department.

197-11-734 Determination of nonsignificance (DNS).

197-11-736 Determination of significance (DS).

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Nonproject.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-786 Reasonable alternative.

197-11-788 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

(Ord. 945 § 1 (part), 2014; Ord. 393 § 24, 1984)

19.04.180 Categorical exemptions—Adoption by reference.

The city adopts by reference the following rules for categorical exemptions as supplemented in this chapter, including WAC 173-802-070 (Threshold determination process—additional consideration), WAC 173-802-080 (Mitigated DNS), and WAC 173-802-120 (Environmentally sensitive areas):

WAC 197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 945 § 1 (part), 2014; Ord. 393 § 25, 1984)

19.04.185 Purpose of Sections 19.04.185 through 19.04.220—Adoption by reference.

Sections 19.04.185 through 19.04.220 contain rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The city adopts the following sections by reference, as supplemented by Sections 19.04.200 through 19.04.220:

WAC	197-11-900	Purpose of this part.
	197-11-902	Agency SEPA policies.
	197-11-916	Application to ongoing actions.
	197-11-920	Agencies with environmental expertise.
	197-11-922	Lead agency rules.
	197-11-924	Determining the lead agency.
	197-11-926	Lead agency for governmental proposals.
	197-11-928	Lead agency for public and private proposals.
	197-11-930	Lead agency for private projects with one agency with jurisdiction.
	197-11-932	Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city.
	197-11-934	Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.
	197-11-936	Lead agency for private projects requiring licenses from more than one state agency.
	197-11-938	Lead agencies for specific proposals.
	197-11-940	Transfer of lead agency status to a state agency.
	197-11-942	Agreements on lead agency status.
	197-11-944	Agreements on division of lead agency duties.
	197-11-946	DOE resolution of lead agency disputes.
	197-11-948	Assumption of lead agency status.

(Ord. 945 § 1 (part), 2014; Ord. 393 § 26, 1984)

19.04.200 Fees.

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 a lead agency, the city shall collect a fee as set by the city council by resolution 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. 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 applicant after a call for proposals.

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.

4. 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.

5. The city shall not collect a fee for performing its duties as a consulted agency.

6. 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 WAC 44-14-070.

C. The land use permit applicant shall pay to the city all costs incurred by the city that are associated with processing the land use permit, including consultant costs. City and consultant reimbursable costs include, but are not limited to, actual time and materials costs for application review, assessment, engineering, inspections, legal, secretarial, administrative, publication, and other city processing costs. In addition, the applicant shall pay any charges made by the hearing examiner above the city’s basic established fee.

(Ord. 945 § 1 (part), 2014; Ord. 927 § 1 (part), 2013; Ord. 860 § 1 (part), 2009; Ord. 393 § 27, 1984)

19.04.205 Effective date.

The effective date of the ordinance codified in this chapter is October 1, 1984. (Ord. 393 § 28, 1984)

19.04.220 Severability.

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. 393 § 29, 1984)

19.04.230 Additional statutes—Adoption by reference.

The city adopts the following forms and sections by reference:

WAC	197-11-960	Environmental checklist.
	197-11-965	Adoption notice.
	197-11-970	Determination of nonsignificance (DNS).
	197-11-980	Determination of significance and scoping notice (DS).
	197-11-985	Notice of assumption of lead agency status.
	197-11-990	Notice of action.

(Ord. 393 § 30, 1984)