Chapter 22.86
SEPA AND AGENCY DECISIONS

Sections:

22.86.010    Purpose of this chapter and adoption of WAC sections by reference.

22.86.020    Substantive authority.

22.86.030    Appeals.

22.86.040    Notice/statute of limitations.

22.86.010 Purpose of this chapter and adoption of WAC sections by reference.

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

WAC

(Statutory authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), WAC 173-806-155, filed 6/15/84. Formerly WAC 173-805-020.) (Ord. 1206 § 8, 1998).

22.86.020 Substantive authority.

(a) The policies and goals set forth in this title are supplementary to those in the existing authorization of the city of Fircrest.

(b) The city may attach conditions to a permit or approval for a proposal so long as:

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

(2) Such conditions are in writing; and

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

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

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

(c) The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

(1) A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this title; 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) The city adopts by reference the policies in the Fircrest comprehensive plan, land development code, and building and construction code.

(e) When any proposal or action not requiring a decision of the city council is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the city council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within 10 days of the decision being appealed. Review by the city council shall be on a de novo basis. (Statutory authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), WAC 173-806-160, filed 6/15/84. Formerly Chapter 173-805 WAC.) (Ord. 1206 § 8, 1998).

22.86.030 Appeals.

(a) SEPA appeals shall be limited to review of final threshold determinations, the adequacy of final environmental impact statements, mitigation or failure to mitigate environmental impacts, and project denials. Appeals of declarations of nonsignificance, EIS adequacy, mitigation and project denial, and open record public hearings for the underlying permit(s), as described in Chapter 22.05 FMC, shall be consolidated and heard together. Declarations of significance, issued before a decision on the underlying permit(s), may be appealed and heard before the consolidated open record public hearing on the permit and other SEPA issues.

(b) All SEPA appeals must be filed in writing with the responsible official within 14 calendar days after a notice of decision is issued pursuant to FMC 22.09.008 or after other notice that the decision has been made and is appealable; provided, that in order to allow public comment on a DNS prior to requiring an appeal to be filed, this appeal period shall be extended for an additional seven days. The hearing date for appeals of declarations of significance issued before a decision on the permit shall be not more than 45 days from the date the appeal is filed.

(c) On receipt of a written notice of appeal, the responsible official shall determine if the notice is timely. If the notice is untimely, the responsible official shall advise the person(s) who filed the notice that no appeal hearing will be scheduled because the notice was untimely. If the appeal is timely, the responsible official shall set a hearing date and transmit the appeal notice to the hearing examiner.

(d) Hearing examiner SEPA appeals, and any consolidated public hearings on the underlying permit, shall be open record hearings, as described in Chapter 22.09 FMC. The hearing examiner shall take sworn testimony, consider all relevant evidence and decide the issues de novo; provided, however, that the responsible official’s decision(s) shall be given substantial weight. The hearing examiner shall issue a written decision, which shall include specific findings of fact and conclusions of law, within 10 working days of the close of the hearing, unless a longer period is agreed to in writing by the applicant and the hearing examiner.

(e) The hearing examiner’s decision on threshold determinations and EIS adequacy shall be the final decision of the city. Appeals of the hearing examiner’s decision on these issues shall be filed in the Pierce County superior court. Appeals of the hearing examiner’s decision on SEPA mitigation and project denial shall be filed with the city council.

(f) Appeals to the city council of SEPA mitigation and project denial appeals shall be consolidated with decisions subject to city council review by Chapter 22.05 FMC. Decisions not subject to city council review may not be appealed to the city council as part of a SEPA mitigation or project denial appeal. In the appeal, the city council shall review the hearing examiner’s open record hearing decision in a closed record appeal as described in Chapter 22.10 FMC. The record on appeal shall consist of the hearing examiner’s findings of fact, conclusions of law, and decision; a taped or written transcript of the hearing; and any exhibits accepted into evidence at the hearing. No other evidence shall be considered unless it can be shown that the hearing examiner erred in excluding such evidence.

(g) The city council’s decision on project mitigation or denial, and the underlying permits, shall be the final decision of the city. Appeals of the city council’s decision shall be filed in the Pierce County superior court.

(h) If a time limit is established by statute or ordinance for commencing a judicial appeal of the project permit, the responsible official shall give official notice of the date and place for commencing the appeal. The notice shall include:

(1) Notice that any SEPA issues must be appealed within the time limit set by statute or ordinance for appealing the underlying governmental action;

(2) The time limit for commencing the appeal of the underlying governmental action and SEPA issues, and the statute or ordinance establishing the time limit; and

(3) Where the appeal may be filed.

Written notice shall be provided to the applicant, all parties to any administrative appeal, and all persons who have requested notice of decisions concerning the project. Such notice may be appended to the permit, the decision documents, the SEPA compliance documents, or may be printed separately.

(i) The time limitations and procedures for judicial appeals of decisions in this section shall be as set forth in WAC 197-11-680(4) and this title. Only a party to the proceeding appealed from may appeal the decisions set forth above. (Statutory authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), WAC 173-806-170, filed 6/15/84. Formerly Chapter 173-805 WAC.) (Ord. 1638 § 59, 2019; Ord. 1206 § 8, 1998).

22.86.040 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 city clerk, applicant or proponent pursuant to RCW 43.21C.080. (Statutory authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), WAC 173-806-173, filed 6/15/84. Formerly WAC 173-805-135.) (Ord. 1206 § 8, 1998).