14.06.070 SEPA and Agency Decisions | Moses Lake Municipal Code

14.06.070 SEPA and Agency Decisions:

A. Purpose and Adoption by Reference. This part contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This part also contains procedures for appealing SEPA determinations to agencies or the courts. The City adopts the following Washington Administrative Code sections by reference:

197-11-650 Purpose of This Part

197-11-655 Implementation

197-11-660 Substantive Authority and Mitigation10

197-11-680 Appeals

1. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the City of Moses Lake.

2. The City may attach conditions to a permit or approval for a proposal so long as:

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

b. Such conditions are in writing; and

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

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

e. Such conditions are based on one (1) or more policies in subsection (B)(4) of this section and cited in the license or other decision document.

3. The City may deny a permit or approval for a proposal on the basis of SEPA so long as:

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

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

c. The denial is based on one or more policies identified in subsection 4 of this section and identified in writing in the decision document.

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

a. The policies in the following City codes, plans, ordinances and resolutions:

1) The Comprehensive Plan of the City.

2) The City’s Zoning Code.

3) The City’s fire and building codes.

4) The City’s shoreline master program.

5) Any other policies of the City which have been incorporated in resolutions, regulations, ordinances, plans, or codes and which provide a reasonable basis for conditioning or denying a proposal in order to mitigate adverse environmental impacts.

b. 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:

1) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

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

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

4) Preserve important historic, cultural, and natural aspects of our national heritage;

5) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

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

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

c. 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.

C. Appeals. The City of Moses Lake establishes the following administrative appeal procedure under RCW 43.21C.075 and WAC 197-11-680:

1. Appeals under the provisions of this part shall be limited solely to those actions and/or determinations listed below. No administrative appeals shall be allowed for other actions and/or determinations taken or made pursuant to this chapter (such as lead agency determination, scoping, draft EIS adequacy, etc.)

a. Procedural appeals which shall consist of an appeal of the responsible official’s compliance with the provisions of SEPA, the SEPA rules, and this chapter with respect to the following:

1) Final determination of nonsignificance.

2) Final determination of significance.

3) Adoption or issuance of a Final Environmental Impact Statement.

b. Substantive appeals which shall consist of an appeal of an action or omission with respect to the conditioning or denying of a proposal under the substantive authority set forth in subsection B of this section.

2. Except as provided in subsection (C)(3) of this section, an appeal under this section shall consolidate any SEPA appeal with a hearing or appeal on the underlying governmental action in a single simultaneous hearing before one hearing officer or body. The hearing or appeal shall be one at which the hearing officer or body will consider either the City’s decision or a recommendation on the proposed underlying governmental action. If no hearing or appeal on the underlying governmental action is otherwise provided, then no SEPA appeal is allowed under this section, except as allowed under subsection (C)(3) of this section.

3. The following appeals of SEPA procedural or substantive determinations need not be consolidated with a hearing or appeal on the underlying governmental action:

a. An appeal of a determination of significance;

b. An appeal of a procedural determination made by the City when the City is a project proponent, or is funding a project, and chooses to conduct its review under this chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;

c. An appeal of a procedural determination on a non-project action.

4. All procedural and substantive SEPA appeals provided under this section shall be initiated by filing a written notice of SEPA administrative appeal with the Community Development Department, accompanied by the applicable appeal fee. No additional appellate fee shall be charged in conjunction with a hearing on the underlying permit or approval.

a. The notice of appeal required by this section shall include, at a minimum:

1) The name and mailing address of the party or agency filing the appeal and the name and address of his/her representative, if any;

2) An identification of the specific proposal and specific SEPA actions, omissions, conditions, or determinations for which appeal is sought;

3) A statement of the particular factual and legal grounds or reasons for the appeal;

4) The specific nature and intent of the relief sought;

5) A statement demonstrating standing to appeal;

6) A statement that the appellant has read the appeal and believes the contents to be true, followed by his/her signature and the signature of his/her representative, if any. If the appealing party is unavailable to sign the appeal, it may be signed by his/her representative.

b. The Community Development Director shall arrange to conduct the SEPA appeal in conjunction with a hearing or appeal on the underlying permit or approval, where required to consolidate the SEPA appeal with a hearing on the underlying governmental action. Where consolidation is not required, the Director shall schedule the hearing to be conducted within ninety (90) days of the date of filing the notice of appeal and payment of fee.

5. SEPA procedural appeals shall be initiated and conducted in the manner set forth below:

a. An appeal of issuance of a determination of non-significance (DNS) or mitigated determination of non-significance (MDNS), may be filed by any agency or aggrieved person as follows:

1) For proposals which may be approved by an administrative official without public hearing, an appeal shall be filed within fourteen (14) calendar days following the last day of the comment period. Such SEPA appeal shall be heard in conjunction with the appeal of the underlying permit or approval, where such appeal is allowed. Provided that, if no administrative appeal of the underlying permit or approval is otherwise provided for, and consolidation is not required by subsection 3 above, an appeal of the DNS shall be heard and decided in an open record hearing by the Hearing Examiner. The decision of the Hearing Examiner on the SEPA procedural appeal shall be final and not subject to further administrative appeal.

2) For proposals which may only be approved by open record hearing or open record pre-decision hearing (recommendation) before the Hearing Examiner, an appeal shall be filed within fourteen (14) calendar days following the last day of the comment period, or where no comment period is required, then within fourteen (14) days following the date of issuance or adoption of the DNS, and shall be heard and decided in open record hearing by the Hearing Examiner in conjunction with the decision or recommendation on the underlying proposal. The decision of the Hearing Examiner on the SEPA procedural appeal shall be final and not subject to further administrative appeal.

b. An appeal of a Determination of Significance (DS) may be filed by the applicant within fourteen (14) days of the issuance of the DS/scoping notice. The appeal shall be heard in open record hearing and decided by the Hearing Examiner, whose decision shall be final and not subject to further administrative appeal.

c. An appeal must be filed within seven (7) days of issuance of the Final Environmental Impact Statement (FEIS).

d. A SEPA procedural determination shall be deemed to be conclusively in compliance with SEPA, the SEPA rules, and the provisions of this chapter, unless a SEPA procedural appeal is filed in accordance with this part.

6. SEPA substantive appeals shall be initiated and conducted in the manner set forth below:

a. For proposals subject to final administrative action, approval, or recommendation by a nonelected administrative official for which no administrative appeal is otherwise provided, and for which consolidation is not required by subsection 3 of this section, any agency or aggrieved person may file a substantive SEPA appeal within fourteen (14) days of the issuance of the administrative decision approving, conditioning, or denying the proposal on the basis of substantive SEPA authority. Such substantive SEPA appeal shall be heard and decided by the Hearing Examiner in an open record hearing, unless the proposal is a project permit which has been subject to a previous open record hearing, in which case the SEPA appeal shall be a closed record appeal. The substantive SEPA appeal shall be heard in conjunction with any procedural SEPA appeal. The decision of the Hearing Examiner on the SEPA substantive appeal shall be final and not be subject to further administrative appeal.

b. For all proposals subject to final administrative action, approval, or recommendation, by a nonelected administrative official, for which an administrative appeal or further approval hearing is otherwise provided or required, any agency or aggrieved person may file a substantive SEPA appeal within fourteen (14) days of the issuance of the administrative decision approving, conditioning, or denying the proposal on the basis of substantive SEPA authority. Any substantive SEPA appeal shall be conducted in the same manner and with the same process as otherwise provided for the appeal or approval hearing of the underlying administrative action.

c. The SEPA substantive determination to condition or deny a proposal shall be deemed to be conclusively in compliance with SEPA, the SEPA rules, and the provisions of this chapter, unless a SEPA substantive appeal is filed in accordance with this part.

7. For any appeal under this subsection, the City shall provide for a record to be made at any hearing that shall consist of the following:

a. Findings and conclusions;

b. Testimony under oath; and

c. A taped or written transcript.

8. The City may require the appellant to provide a transcript at the appellant’s cost.

9. The procedural determination by the City’s responsible official shall carry substantial weight in any appeal proceeding, and the appellant shall bear the burden to establish a violation of SEPA, the SEPA rules, or the provisions of this chapter.

D. 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.

1. The City, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

2. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the Finance Director or County Auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 2949, 4/14/20; Ord. 2133, 11/11/03; Ord. 2028, 8/28/01; Ord. 1149, 1984)