Chapter 10.35
COMMUTE TRIP REDUCTION PLAN
Sections:
10.35.030 Enforcement authority.
10.35.040 City of Washougal CTR plan.
10.35.050 Commute trip reduction goals.
10.35.070 Requirements for affected employers.
10.35.090 Schedule and process for CTR program description and report.
10.35.120 Exemptions and goal modifications.
* Prior legislation: Ord. 1090.
10.35.010 Findings.
The city council finds that:
(1) RCW 70.94.521 et seq. requires that each county containing an urban growth area, designated pursuant to RCW 36.70A.110, and each city within an urban growth area with a state highway segment exceeding the 100 person hours of delay threshold calculated by the Department of Transportation, as well as those counties and cities located in any contiguous urban growth areas, shall adopt a commute trip reduction plan and ordinance for major employers in the affected urban growth area;
(2) Counties, cities, and the regional transportation council are required to develop regionally coordinated commute trip reduction plans with an initial emphasis on requiring major employers within affected cities and counties to develop programs intended to accomplish commute trip reduction by employees;
(3) A regional CTR ordinance and CTR plans have been developed for the cities of Vancouver, Camas and Washougal, as well as Clark County, and CTR plans for WSDOT, the regional transportation council and C-TRAN;
(4) Adoption and implementation of this plan will lead to a reduction in single-occupancy vehicle use which will assist in improving air quality, relieving traffic congestion and reducing consumption of fossil fuels while enhancing the region’s economic vitality by maintaining and improving accessibility and mobility, and which will balance financial, social and environmental considerations;
(5) The city council recognizes the importance of increasing individual citizens’ awareness of air quality, energy consumption, and traffic congestion and the contribution individual actions can make toward addressing these issues;
(6) Certain large employers, such as schools, are not affected by this chapter. However, recognizing the benefits that commute trip reduction planning offers to the overall community, the city council encourages these employers to voluntarily participate in this program. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.020 Definitions.
For the purposes of this chapter, the following definitions shall apply:
“Affected employee” means a full-time employee who begins his or her regular workday at a single worksite covered by the commute trip reduction plan between 6:00 a.m. and 9:00 a.m. (inclusive) on two or more weekdays for at least 12 continuous months who is not an independent contractor. Seasonal agricultural employees, including seasonal employees of processors of agricultural products, are excluded from the count of affected employees.
“Affected employer” means an employer that employs 100 or more full-time employees at a single worksite covered by the commute trip reduction plan who are scheduled to begin their regular work day between 6:00 a.m. and 9:00 a.m. (inclusive) on two or more weekdays for at least 12 continuous months. Construction worksites, when the expected duration of the construction is less than two years, are excluded from this definition. (Also see definition of “Employer.”)
“Alternative mode” means any means of commute transportation other than in which the single-occupant vehicle is the dominant mode, including telecommuting and compressed work week schedules if they result in reducing commute trips.
“Alternative work schedules” means programs such as compressed work schedules that eliminate work trips for affected employees.
“Base year” means the 12-month period which commences when a major employer is determined by the jurisdiction to be participating within the CTR program. The city uses this 12-month period as the basis upon which it develops commute trip reduction goals.
“Base year survey” or “baseline measurement” means the survey, during the base year, of employees at a major employer worksite to determine the drive-alone rate and vehicle miles traveled per employee at the worksite. The jurisdiction uses this measurement to develop commute trip reduction goals for the major employer. The baseline measurement must be implemented in a manner that meets the requirements specified by the city.
“Carpool” means a motor vehicle, including a motorcycle, occupied by two to six people of at least 16 years of age traveling together for their commute trip, resulting in the reduction of a minimum of one motor vehicle commute trip.
“City” means the city of Washougal.
“Commute trip” means a trip made from a worker’s home to a worksite (inclusive) on weekdays.
“Commute trip reduction (CTR) plan” means the city of Washougal’s plan which is designed to achieve reductions in the proportion of single-occupant vehicle commute trips and the commute trip vehicle miles traveled per affected employees of affected public and private sector employers within the city of Washougal.
“Commute trip vehicle miles traveled per employee” means the sum of the individual vehicle commute trip lengths in miles over a set period divided by the number of full-time employees during that period.
“Compressed work week” means an alternative work schedule, in accordance with employer policy, that regularly allows a full-time employee to eliminate at least one work day every two weeks by working longer hours during the remaining days, resulting in fewer commute trips by the employee. This definition is primarily intended to include weekly and bi-weekly arrangements, the most typical being four 10-hour days or 80 hours in nine days, but may also include other arrangements.
“CTR” is the abbreviation of commute trip reduction.
“CTR program” means an employer’s strategies to reduce employees’ drive-alone commutes and average VMT per employee.
“Custom bus/buspool” means a commuter bus service arranged specifically to transport employees to work.
“Director” means director of public works.
“Dominant mode” means the mode of travel used for the greatest distance of a commute trip.
“Drive alone” means a motor vehicle occupied by one employee for commute purposes, including a motorcycle.
“Drive-alone trips” means commute trips made by employees in single-occupant vehicles.
“Emergency ride home program” means a program offered to employees by either the regional CTR program administrator or the employer that provides an emergency ride home to an employee if they use an alternative mode of transportation.
“Employee transportation coordinator (ETC)” means a person who is designated as responsible for the development, implementation and monitoring of an employer’s CTR program.
“Employer” means a sole proprietorship, partnership, corporation, unincorporated association, cooperative, joint venture, agency, department, district or other individual or entity, whether public, nonprofit or private, that employs workers.
“Exemption” means a waiver from any or all CTR program requirements granted to an employer by the city based on unique conditions that apply to the employer or employment site.
“Flex-time” is an employer policy that provides work schedules allowing individual employees flexibility in choosing the start and end times but not the number of their working hours.
“Full-time employee” means a person, other than an independent contractor, whose position is scheduled on a continuous basis for 52 weeks for an average of at least 35 hours per week.
“Good-faith effort” means that an employer has met the minimum requirements identified in RCW 70.94.531 and this chapter, and is working collaboratively with the city to continue its existing CTR program or is developing and implementing program modifications likely to result in improvements to its CTR program over an agreed-upon length of time.
“Implementation” means active pursuit by an employer of the CTR goals of RCW 70.94.521 through 70.94.555 and this chapter as evidenced by appointment of an employee transportation coordinator (ETC), distribution of information to employees regarding alternatives to drive-alone commuting, and commencement of other measures according to its approved CTR program and schedule.
“Major employer” means a private or public employer, including state agencies, that employs 100 or more full-time employees at a single worksite who are scheduled to begin their regular work day between 6:00 a.m. and 9:00 a.m. on weekdays for at least 12 continuous months.
“Major employer worksite,” “affected worksite” or “worksite” means the physical location occupied by a major employer, as determined by the local jurisdiction.
“Major employment installation” means a military base or federal reservation, excluding tribal reservations, or other locations as designated by the city, at which there are 100 or more affected employees.
“Mode” means the means of transportation used by employees, such as single-occupant motor vehicle, rideshare vehicle (carpool or vanpool), transit, bicycle, walking, compressed work week schedule and telecommuting.
“Notice” means written communication delivered via the United States Postal Service with receipt deemed accepted three days following the day on which the notice was deposited with the Postal Service, unless the third day falls on a weekend or legal holiday, in which case the notice is deemed accepted the day after the weekend or legal holiday.
“Peak period” means the hours from 6:00 a.m. to 9:00 a.m. (inclusive), Monday through Friday, except legal holidays.
“Peak period trip” means any commute trip that delivers the employee to begin his or her regular workday between 6:00 a.m. to 9:00 a.m. (inclusive), Monday through Friday, except legal holidays.
“Proportion of drive-alone trips” or “drive-alone rate” means the number of commute trips over a set period made by employees in single-occupancy vehicles divided by the number of potential trips taken by employees working during that period.
“Regional CTR program administrator” means the agency or jurisdiction responsible for administering the Clark County CTR program.
“Ride matching service” means a system which assists in matching commuters for the purpose of commuting together.
“Teleworking” or “telecommuting” means the use of telephones, computers, or other similar technology to permit an employee to work at home, eliminating a commute trip, or to work from a work place closer to home, reducing the distance traveled in a commute trip by at least half.
“Transit” means a multiple-occupant vehicle operated on a for-hire, shared-ride basis, including bus, rail, shared-ride taxi, shuttle bus or vanpool.
“Transportation demand management (TDM)” means a broad range of strategies that are primarily intended to reduce and reshape demand on the transportation system.
“Transportation management association (TMA)” means a group of employers or an association representing a group of employers in a defined geographic area. A TMA may represent employers within the Washougal city limits, or may have a sphere of influence that extends beyond city limits.
“Vanpool” means a vehicle occupied by from five to 15 people traveling together for their commute trip, resulting in the reduction of a minimum of one motor vehicle trip.
“Vehicle miles traveled (VMT) per employee” means the sum of the individual vehicle commute trip lengths in miles made by employees over a set period divided by the number of employees during that period.
“Week” means a seven-day calendar period, starting on Monday and continuing through Sunday.
“Weekday” means any day of the week except Saturday or Sunday.
“Writing,” “written,” or “in writing” means original signed and dated documents. Facsimile (fax) transmissions are a temporary notice of action that must be followed via mail or delivery of the original and dated document. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.030 Enforcement authority.
The director of public works or his authorized designee is directed and authorized to implement and enforce the provisions of this chapter and of the CTR plan, and shall have the authority to issue written notices and orders and to assess civil penalties against affected employers who do not comply with the provisions of this chapter. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.040 City of Washougal CTR plan.
The goals established for the jurisdiction and affected employers in the city’s commute trip reduction (CTR) plan are incorporated herein by reference. City staff is directed to make any corrections for typographical errors, include any graphical materials for information, and complete the commute trip reduction plan. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.050 Commute trip reduction goals.
(1) Setting CTR Goals. The city’s goals for reductions in the proportions of drive-alone commute trips and vehicle miles traveled per employee by affected employers in the city’s jurisdiction, major employment installations, and other areas designated by the city are hereby established by the city’s CTR plan incorporated by WMC 10.35.040. These goals establish the desired level of performance for the CTR program in its entirety in the city. The city will set the individual worksite goals for affected employers based on how the worksite can contribute to the city’s overall goal established in the CTR plan. The goals will appear as a component of the affected employer’s approved implementation plan outlined in WMC 10.35.070.
(2) Commute Trip Reduction Goals for Affected Employers.
(a) The drive-alone and VMT goals for affected employers in the city are hereby established as set forth in the CTR plan incorporated by WMC 10.35.040.
(b) If the goals for an affected employer or newly affected employer are not listed in the CTR plan, they shall be established by the city at a level designed to achieve the city’s overall goals for the jurisdiction and other areas as designated by the city. The city shall provide written notification of the goals for each affected employer worksite by providing the information when the city reviews the employer’s proposed program and incorporating the goals into the program approval issued by the city. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.060 Applicability.
The provisions of this chapter shall apply to any affected employer within the geographic limits of the CTR plan adopted in WMC 10.35.040. This chapter only applies when the CTR plan, as approved in WMC 10.35.040, designates the employer as affected based on location within the geographic limits of the plan.
(1) Notice of Applicability.
(a) Publication of Notice. In addition to the city’s established public notification for adoption of an ordinance, a notice of availability of a summary of this chapter, a notice of the requirements and criteria for affected employers to comply with this chapter, and subsequent revisions shall be published at least once in the city’s official newspaper not more than 30 days after passage of the ordinance codified in this chapter or revisions.
(b) Notice to Known Affected Employers. Affected employers located in the city are to receive written notification that they are subject to this chapter. Such notice shall be addressed to the company’s chief executive officer, senior official, CTR program manager, or registered agent at the worksite. Such notification shall provide 90 days for the affected employer to perform a baseline measurement consistent with the measurement requirements specified by the city.
(c) Self-Identification. Affected employers that, for whatever reason, do not receive notice within 30 days of passage of the ordinance codified in this chapter and are either notified or identify themselves to the city within 90 days of the passage of the ordinance codified in this chapter will be granted an extension to assure up to 90 days within which to perform a baseline measurement consistent with the measurement requirements specified by the city. Upon self-identification, such affected employers will be granted 180 calendar days to develop and submit a CTR program.
(d) Failure to Identify. Affected employers that have not been identified or do not identify themselves within 90 days of the passage of the ordinance codified in this chapter and do not perform a baseline measurement consistent with the measurement requirements specified by the city within 90 days from the passage of the ordinance codified in this chapter are in violation of this chapter.
(e) Potential Affected Employer. Any existing or new employer (of 75 or more persons) that obtains a city business license subsequent to the effective date of the ordinance codified in this chapter, shall be required to complete a questionnaire that assesses whether or not an employer will be deemed affected or nonaffected in accordance with the provisions of this chapter.
(f) Baseline Measurement. If an affected employer has already performed a baseline measurement, or an alternative acceptable to the city under previous iterations of this chapter, the employer is not required to perform another baseline measurement.
(2) Newly Affected Employers.
(a) Definition of Newly Affected Employer. Employers meeting the definition of “affected employer” in this chapter must identify themselves to the city within 90 days of either moving into the boundaries outlined in the CTR plan or growing in employment at a worksite to 100 or more affected employees. Employers who do not identify themselves within 90 days are in violation of this chapter.
(b) Baseline Survey. Newly affected employers identified as such shall be given 90 days to perform a baseline measurement consistent with the measurement requirements specified by the city. Employers who do not perform a baseline measurement within 90 days of receiving written notification that they are subject to this chapter are in violation of this chapter.
(c) CTR Program Submittal. Not more than 90 days after receiving written notification of the results of the baseline measurement, the newly affected employer shall develop and submit a CTR program to the city. The program will be developed in consultation with the city to be consistent with the goals of the CTR plan adopted in WMC 10.35.040. The program shall be implemented not more than 90 days after approval by the city. Employers who do not implement an approved CTR program according to this schedule are in violation of this chapter and subject to the penalties outlined in WMC 10.35.110.
(3) Change in Status as an Affected Employer. Any changes in an employer’s status will change the employer’s CTR program requirements.
(a) Nonaffected Employer. If an employer initially designated as an affected employer no longer employs 100 or more affected employees and expects not to employ 100 or more affected employees for the next 12 months, that employer is no longer an affected employer for the purposes of this chapter. It is the responsibility of the employer to notify the city that it is no longer an affected employer. The employer bears the burden of proof to establish this.
(b) Change in status within 12-month period. If the same employer returns to the level of 100 or more affected employees within the same 12 months, that employer will be considered an affected employer for the entire 12 months and will be subject to the same program requirements as other affected employers.
(c) Change in status in a greater than 12-month period. If the same employer returns to the level of 100 or more affected employees 12 or more months after its change in status to an unaffected employer, that employer shall be treated as a newly affected employer and will be subject to the same program requirements as other newly affected employers. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.070 Requirements for affected employers.
An affected employer is required to make a good faith effort, as defined in RCW 70.94.534(2) and this chapter, to develop and implement a CTR program that will encourage its employees to reduce VMT per employee and drive-alone commute trips.
(1) CTR Program – Mandatory Elements. Each employer’s CTR program shall include the following mandatory elements:
(a) Employee Transportation Coordinator (ETC). The affected employer shall designate an employee transportation coordinator (ETC) to administer the CTR program. The ETC and/or designee’s name, location and telephone number must be displayed prominently at each affected worksite. The ETC shall oversee all elements of the employer’s CTR program and act as liaison between the employer and the city. The objective is to have an effective transportation coordinator present at each worksite; an affected employer with multiple worksites may have one designated ETC for all sites. ETCs will be responsible for attending all CTR-sponsored trainings and meetings.
(b) Information Distribution. Information about alternatives to drive-alone commuting as well as a summary of the employer’s CTR program shall be provided to employees at least twice a year and to new employees at the time of hire. Each CTR program description and subsequent annual reports must describe the information to be distributed and the method(s) of distribution.
(c) Emergency Ride Home (ERH) Program. The affected employer shall offer an emergency ride home program to employees. If an ERH program is available through the regional CTR program administrator, then the employer may choose to use this for its program. The ERH program offered by the regional CTR program administrator will allow employees to use three emergency ride home vouchers in one calendar year period or one year within their start-of-work date if the employee has worked for the employer for less than one year. An employer may choose to allow more emergency rides home if the employer chooses to pay for them.
(2) Additional Program Elements. In addition to the specific CTR program elements previously described in this section, to meet the CTR goals as identified in the city’s CTR plan, employers will be required to have at least two additional program elements as part of their CTR program. Elements may include, but are not limited to, the following:
(a) Provision of preferential parking for carpools and vanpools;
(b) Reduced parking charges for carpool and vanpool vehicles;
(c) Provision of commuter ride-matching services to facilitate employee ride-sharing for commute trips;
(d) Provision of subsidies for rail, transit, or vanpool fares and/or transit passes;
(e) Provision of vans or buses for employee ridesharing;
(f) Provision of subsidies for carpools, walking, bicycling, teleworking, or compressed schedules;
(g) Provision of incentives for employees that do not drive alone to work;
(h) Permitting the use of the employers’ vehicles for carpooling or vanpooling;
(i) Permitting flexible work schedules to facilitate employees’ use of transit, carpools or vanpools;
(j) Construction of special bus stops for transit users;
(k) Provision of bicycle parking facilities such as bicycle lockers or secure areas inside a building or a covered outside area that requires some type of key access or ability to lock bicycles;
(l) Provision of changing areas and showers for employees who bicycle or walk to work;
(m) Provision of parking incentives program such as a rebate for employees who do not use the parking facilities;
(n) Establishment of a program to permit employees to work part- or full-time at home or at an alternative worksite closer to their homes which reduces commute trips;
(o) Establishment of a program of alternative work schedules such as a compressed work week, which reduces commute trips;
(p) Implementation of other measures designed to facilitate the use of high-occupancy vehicles, such as on-site day care facilities or food establishments;
(q) Charging employees for parking and/or the elimination of free parking; and
(r) Other measures that the employer believes will reduce the number and length of commute trips made to the site as approved by the regional CTR program administrator.
(3) CTR Program Report and Description. Affected employers shall review their program and file a regular progress report with the city in accordance with the format provided by the city every two years. If necessary, the regional CTR program administrator may require a regular progress report be submitted every year. The CTR program report and description outlines the strategies to be undertaken by an employer to achieve the commute trip reduction goals for the reporting period. Employers are encouraged to consider innovative strategies and combine program elements in a manner that will best suit their location, site characteristics, business type, and employees’ commuting needs. Employers are further encouraged to cooperate with each other to implement program elements. At a minimum, the employer’s CTR program report and description must include:
(a) A general description of the employment site location, transportation characteristics, employee parking availability, on-site amenities, and surrounding services;
(b) The number of employees affected by the CTR program and the total number of employees at the site;
(c) Documentation on compliance with the mandatory CTR program elements as described in subsection (1) of this section;
(d) Description of any additional elements included in the employer’s CTR program as described in subsection (2) of this section; and
(e) A statement of organizational commitment to provide appropriate resources to the program to meet the employer’s established goals.
(4) Biennial Measure of Employee Commute Behavior. In addition to the baseline measurement, employers shall conduct a program evaluation as a means of determining worksite progress toward meeting CTR goals. As part of the program evaluation, the employer shall distribute and collect commute trip reduction program employee questionnaires (“surveys”) at least once every two years and strive to achieve at least a 70 percent response rate from employees at the worksite. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.080 Record keeping.
Affected employers shall maintain a copy of their approved CTR program description and report, their CTR program employee questionnaire results, and all supporting documentation for the descriptions and assertions made in any CTR report to the city for a minimum of 48 months. The city and the employer shall agree on the record keeping requirements as part of the accepted CTR program. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.090 Schedule and process for CTR program description and report.
(1) Document Review. The city shall provide the employer with written notification if a CTR program is deemed unacceptable. The notification must give cause for any rejection. If the employer receives no written notification of extension of the review period of its CTR program or comment on the CTR program or annual report within 90 days of submission, the employer’s program or annual report is deemed accepted. The city may extend the review period up to 90 days.
The implementation date for the employer’s CTR program will be extended an equivalent number of days.
(2) Schedule. Upon review of an employer’s initial CTR program, the city shall establish the employer’s regular reporting date. This report will be provided in a form provided by the city consistent with WMC 10.35.070(3).
(3) Modification of CTR Program Elements. Any affected employer may submit a request to the city for modification of CTR requirements. Such request may be granted if one of the following conditions exists:
(a) Impossibility. The employer can demonstrate it would be unable to comply with the CTR program elements for reasons beyond the control of the affected employer; or
(b) Undue Hardship. The employer can demonstrate that compliance with the program elements would constitute an undue hardship.
The city may ask the employer to substitute a program element of similar trip reduction potential rather than grant the employer’s request.
(4) Extensions. An employer may request additional time to submit a CTR program description and report, or to implement or modify a program. Such requests shall be via written notice at least 30 days before the due date for which the extension is being requested. Extensions not to exceed 90 days shall be considered for reasonable causes. The city shall grant or deny the employer’s extension request by written notice within 10 working days of its receipt of the extension request. If there is no response issued to the employer, an extension is automatically granted for 30 days. Extensions shall not exempt an employer from any responsibility in meeting program goals. Extensions granted due to delays or difficulties with any program element(s) shall not be cause for discontinuing or failing to implement other program elements. An employer’s regular reporting date shall not be adjusted permanently as a result of these extensions. An employer’s annual reporting date may be extended at the discretion of the city.
(5) Implementation of Employer’s CTR Program. Unless extensions are granted, the employer shall implement its approved CTR program, including approved program modifications, not more than 90 days after receiving written notice from the city that the program has been approved or with the expiration of the program review period without receiving notice from the city. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.100 Enforcement.
(1) Compliance. For purposes of this section, “compliance” shall mean:
(a) Fully implementing in good faith all mandatory program elements as well as provisions in the approved CTR program description and report;
(b) Providing a complete CTR program description and report on the regular reporting date; and
(c) Distributing and collecting the CTR program employee questionnaire (“survey”) during the scheduled survey time period.
(2) Program Modification Criteria. The following criteria for achieving goals for VMT per employee and proportion of drive-alone trips shall be applied in determining requirements for employer CTR program modifications:
(a) If an employer meets either or both goals, the employer has satisfied the objectives of the CTR plan and will not be required to modify the CTR program.
(b) If an employer makes a good faith effort, as defined in RCW 70.94.534(2) and this chapter, but has not met the applicable drive-alone or VMT goal, no additional modifications are required.
(c) If an employer fails to make a good faith effort as defined in RCW 70.94.534(2) and this chapter, and fails to meet the applicable drive-alone or VMT reduction goal:
(i) The city shall work collaboratively with the employer to identify modifications to the CTR program and shall direct the employer to revise its program within 30 days to come into compliance with the measure defined by RCW 70.94.534(2), including specific recommended program modifications.
(A) The schedule for this modification plan shall be as follows. In response to the recommended modifications, the employer shall submit a revised CTR program and description, including the requested modifications or equivalent measures, within 30 days of receiving written notice to revise its program.
(B) The city shall review the revisions and notify the employer of acceptance or rejection of the revised program.
(C) If a revised program is not acceptable, the city will send written notice to that effect to the employer within 30 days and, if necessary, require the employer to attend a conference with program review staff for the purpose of reaching a consensus on the required program.
(D) A final decision on the required program will be issued in writing by the city within 10 working days of the conference.
(3) Violations. The following shall each constitute a violation of this chapter if the established deadlines are not met:
(a) Failure to develop and/or submit on time a complete CTR program.
(b) Failure to implement all elements of an approved CTR program, unless the program elements that are carried out can be shown through quantifiable evidence to meet or exceed VMT and drive-alone goals as specified in this chapter.
(c) Failure to revise a CTR program as defined in RCW 70.94.534(4) and this chapter.
(d) Failure to self-identify as an affected employer.
(e) Failure to submit an annual report by the applicable deadline.
(f) Submission of false or fraudulent data in response to survey requirements.
(g) Failure to make a good faith effort, as defined in RCW 70.94.534.
(h) Failure to perform a baseline measurement, including:
(i) Employers notified or that have identified themselves to the city within 90 days of the ordinance codified in this chapter being adopted and that do not perform a baseline measurement consistent with the requirements specified by the city within 90 days from the notification or self-identification;
(ii) Employers not identified or self-identified within 90 days of the ordinance codified in this chapter being adopted and that do not perform a baseline measurement consistent with the requirements specified by the city within 90 days from the adoption of the ordinance codified in this chapter. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.110 Penalties.
(1) Generally. Each day of failure to implement the program shall constitute a separate violation. No affected employer with an approved CTR program which has made a good faith effort may be held liable for failure to reach the applicable drive-alone or VMT goal.
(2) Notice of Civil Violation. Whenever there are reasonable grounds to believe that a violation of this chapter has occurred or is occurring, the city is authorized to issue a notice of civil violation which shall contain the following:
(a) Name and address of the person or persons to whom the notice of violation is directed;
(b) A concise description of the nature of the violation;
(c) A statement assessing a civil penalty in the amount of $10.00 per violation per day. The penalty for subsequent violations shall be $10.00 per day for each violation;
(d) Penalties will begin to accrue 10 weekdays following the official date of notice from the city and shall be paid to the city within 30 days of the date of issuance; and
(e) Notice of violation shall be served on the person or persons in violation of this chapter either personally or by mailing a copy of such notice by certified mail, postage prepaid, return receipt requested, to the person at his or her last known address. Service by mail shall be deemed completed upon the third day following the day the notice or order is deposited in the mail. Proof of personal service of the notice or order shall be made at the time of service by written declaration under penalty of perjury executed by the person effecting service, declaring the date, time and manner in which service was made.
(3) Civil Penalties. An employer shall not be liable for civil penalties if failure to implement an element of a CTR program was the result of an inability to reach agreement with a certified collective bargaining agent under applicable laws where the issue was raised by the employer and pursued in good faith. An employer of unionized or otherwise represented employees shall be presumed to act in good faith compliance if it:
(a) Proposes to a recognized union any provision of the employer’s CTR program that is subject to bargaining as defined by the National Labor Relations Act; and
(b) Advises the union of the existence of the statute and the mandates of the CTR program approved by the city and advises the union that the proposal being made is necessary for compliance with state law (RCW 70.94.531). (Ord. 1666 § 1 (Exh. A), 2010)
10.35.120 Exemptions and goal modifications.
(1) Grounds for Exemption. An affected employer may request the city to grant an exemption from all CTR program requirements or penalties for a particular worksite. The affected employer shall demonstrate that it would experience undue hardship in complying with the requirements of this chapter as a result of the characteristics of its business, its work force, or its location(s). An exemption may be granted if, and only if, the employer demonstrates that it faces extraordinary circumstances, such as bankruptcy, and is unable to implement any measures that could reduce the proportion of drive-alone trips and VMT per employee.
(a) Timing. Exemptions may be granted by the city at any time based on written notice provided by the affected employer. The notice should clearly explain the conditions for which the affected employer is seeking an exemption from the requirements of the CTR program. The city shall grant or deny the request within 30 days of receipt of the request.
(b) Annual Review. The city shall review annually all employers receiving exemptions and shall determine whether the exemption will be in effect during the following program year.
(c) Other Exemptions.
(i) Specific employees or groups of employees who are required to drive alone to work as a condition of employment may be exempted from a worksite’s CTR program.
(ii) Exemptions may also be granted for employees who work variable shifts throughout the year and who do not rotate as a group to identical shifts.
(iii) The city will use the criteria identified in the CTR board administrative guidelines to assess the validity of employee exemption requests.
(iv) The city shall review annually all employee exemption requests and shall determine whether an exemption will be in effect during the following program year.
(2) Modification of CTR Program Goals. An affected employer may request that the city modify its program goals. Such requests shall be filed in writing at least 60 days prior to the date the worksite is required to submit its program description and annual report. The goal modification request must clearly explain why the worksite is unable to achieve the applicable goal. The worksite must also demonstrate that it has implemented all of the elements contained in its approved CTR program. The city will review and grant or deny requests for goal modifications in accordance with procedures and criteria identified in the CTR board guidelines. An employer may not request a modification of the applicable goals until one year after the city approval of its initial program description or annual report. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.130 Hearing examiner.
(1) One or more hearing examiners shall be appointed by the city to hear appeals relating to the interpretation and/or enforcement of this chapter. Contracts may be entered into by the person or persons acting as hearing examiner, to be compensated as shall be provided therein and paid out of moneys made available and budgeted therefor.
(2) The hearing examiner shall hear all appeals from any affected employer from the following decisions or actions:
(a) Notice of civil violation; and
(b) Administrative decisions regarding exemptions, modification of goals and CTR program elements.
(3) Conduct of Appeal Hearing. The hearing officer shall hear evidence presented by the city. The hearing examiner shall likewise hear evidence presented by the person appealing the notice of violation or administrative decision. In the case of an appeal of a notice of civil violation, the burden of proof at the hearing shall rest with the city to show by a preponderance of the evidence that there is a violation as claimed. In the case of an appeal of an administrative interpretation, the hearing officer shall give substantial weight to the director’s interpretation and shall substitute his judgment only upon a showing by the appellant that the director’s interpretation is arbitrary and capricious. Formal rules of evidence need not be followed, but witnesses shall be sworn by the hearing officer and a written order issued. (Ord. 1666 § 1 (Exh. A), 2010)
10.35.140 Appeal procedure.
(1) Appeal Requirements. All appeals to the hearing officer as provided for in this chapter shall be filed in writing with the director or other such agency as the city may designate. All appeals must be filed within 10 workdays after the date of any notice or administrative decision or action and such notice, administrative decision or action must so state on its face. The notice or order shall further bear the notation:
Failure to respond to this notice of violation by timely payment of civil violation or by compliance with any order, or by timely appeal of the notice, is a misdemeanor punishable by a fine of not to exceed $1,000 and/or jail term not to exceed one year.
(2) Required Information. All appeals to the hearing officer shall contain the following:
(a) The name(s) of all parties participating in the appeal.
(b) A brief statement setting forth the action protested and the reasons why it is claimed such protested action should be reversed, modified or otherwise set aside.
(c) The signatures of all parties named and telephone numbers and mailing addresses.
(d) Verification (by declaration of the penalty of perjury) of at least one of the appellants of the truth of the matter stated in the appeal.
(e) Upon receiving the appeal, the director shall transmit the same to the hearing officer as provided herein.
(f) The failure of any person to file a timely appeal, or failure of any person who has filed an appeal to attend a scheduled hearing, shall constitute a waiver of his or her right to an appeal hearing.
(g) Filing of an appeal shall stay the enforcement of any notice of civil violation or other action during the pendency of such appeal except as otherwise provided.
(h) A copy of the final order of the hearing officer shall be mailed to the appealing party within three weekdays following the entry of a written order under this section. Unless otherwise stated in the order, this order shall be final and conclusive 10 days from the date of mailing thereof, unless any party of record makes application to a court of competent jurisdiction for judicial review and stay of enforcement. (Ord. 1666 § 1 (Exh. A), 2010)