HomeMy WebLinkAboutCity Council Committees - Planning and Economic Development Committee - 09/10/2001 •
KENT
WASHINGTON SPECIAL PLANNING COMMITTEE
COMMUNITY
DEVELOPMENT September 10, 2001
Mike H.Martin,Deputy
Chief Administrative Officer
PLANNING SERVICES
Fred N. Satteistrom,AIP
Manager The City Council Planning Committee will hold a special meeting in Council
Mailing Address Chambers East, Kent City Hall, 220 41h Avenue South, at 4:00 PM on Monday,
220 Fourth Ave.'S, September 10, 2001.
Kent,WA 98032-5896 i
Location Address:
400+West Gowe
Kent,WA 98032
Committee Members: Tom Brotherton, Chair Judy Woods Tim Clark
Phone:253-856-5464
Fax:253-866-6454
Action Sneaker Time
1. Approval of Minutes of August 6, 2001 YES
2. ESA Response Under SEPA YES Kim Marousek 20 min
3. Proposed Revisions to KCC Chapters: YES Kim Marousek 20 min
2.32, 11.03, 12.01, 14.01, 14.11 1;1).
,2
The Planning Committee meets the first Monday of each month at 4:00 PM in Chambers
East, Kent City Hall, 220 4`h Ave. South, unless otherwise noted. For agenda
information please call Jackie Bicknell at (253) 856-5712.
ANY PERSON REQUIRING A DISABILITY ACCOMMODATION SHOULD CONTACT THE
CITY CLERK'S OFFICE AT(253) 856-5725 IN ADVANCE. FOR TDD RELAY SERVICE CALL
THE WASHINGTON TELECOMMUNICATIONS RELAY SERVICE AT 1-800-833-6388.
SEPTEMBER 5, 2001
THE AGENDA COVER SHEET FOR THE 09/10/01
P; TNNING COMMITTEE MEETING (4:00 PM)
LE OF ITEM#1 ESA RESPONSE UNDER SEPA
ACTION ITEM: Forward draft resolution and ordinance implementing enhanced review procedures under
the State Environmental Policy Act in response to the listing of endangered, threatened,
and candidate species under the Endangered Species Act. to City Council with a
recommendation for approval.
BACKUP MATERIAL: Staff Report from Kim Marousek, Draft Ordinance, Draft Resolution, Comment Letters
from; Laura N.Whitaker w/Perkins Coie,Tony Roth w/AC Roth Environmental Services
PRESENTER: Kim Marousek, Senior Planner
TIME: 20 Minutes
+ TITLE OF ITEM#2 #ZCA-2001-3 PROPOSED REVISIONS TO KCC CHAPTERS: 2.32, 11.03, 12.01,
14.01, 14.11
ACTION ITEM: Staff is recommending forwarding draft ordinance changes to City Council, updating
code provisions relating to the administration of development regulations by amending
Chapter 12.01 of the Kent City Code, and related portions of Chapters 2.32, 11.03, 14.01,
and 14.11,with recommendations of approval.
BACKUP MATERIAL: Staff Report from Kim Marousek,Draft Ordinance
RESENTER: Kim Marousek, Senior Planner
,,JIME: 20 Minutes
SAPermiAPlanlPlanning Commi1tee1010910pc-cvrsht.doc
9/10/01
Planning Committee
Item#1
ESA RESPONSE UNDER SEPA
ACTION ITEM :
Forward draft resolution and ordinance implementing
enhanced review procedures under the State
Environmental Policy Act in response to the listing of
endangered, threatened, and candidate species under the
Endangered Species Act. to City Council with a
recommendation for approval.
i
COMMUNITY DEVELOPMENT
Fred N. Satterstrom, AICP, Acting Director
PLANNING SERVICES
Charlene Anderson,AICP,Acting Manager
KENT
WAS„,„GTON Phone:253-856-5454
Fax: 253-856-6454
Address: 220 Fourth Avenue S.
Kent,WA 98032-5895
September 4,2001
TO: CHAIR TOM BROTHERTON&PLANNING COMMITTEE MEMBERS
FROM: KIM MAROUSEK, SENIOR PLANNER
SUBJECT: ESA RESPONSE UNDER SEPA
PLANNING COMMITTEE MEETING OF SEPTEMBER 10, 2001
Introduction
At the July 2, 2001 Planning Committee meeting, staff presented an interim proposal to utilize the State
Environmental Policy Act(SEPA)review process to obtain additional studies and possibly require greater
mitigation to development in the Valley in an effort to provide protection for listed species under the
Endangered Species Act (ESA). This proposal was modeled after programs implemented by the City of
Everett and the City of Seattle and is meant to provide interim protective measures while the City pursues
• new Sensitive Area Standards as required under the GMA.
On August 16, staff held an informal public meeting to present the draft Fisheries Study annotated outline
and to answer questions posed by the public. The meeting announcement was published in local papers,
placed on the City's web page and mailed directly to developers who have completed SEPA review with
the City over the past year. The meeting was attended by City staff and approximately 12 interested
members of the public, largely from the development community. Additionally, interested parties were
given until August 31, 2001 to provide written comments on the draft proposal to the City. Two written
comments were received and are enclosed.
Discussion
Generally, issues of concern that were raised regarding this proposal included: treatment of "minor"
development projects, issues related to "ditches," and questions surrounding the inclusion of Coho, a
candidate species, within this proposal. As discussed in the attached draft resolution, the City has
retained the authority to exempt certain types of development from this requirement in cases where SEPA
review is required but where there will clearly be no impacts to salmonids (e.g., as interior tenant
improvements). With respect to ditches,the waterways included in this proposal are limited to those areas
identified on the City's Hazard Area Inventory Map as Major Creeks,Minor Creeks or ditches. This area
was selected for additional protection because the existing stream setback and buffer requirements are less
protective than in those areas recently annexed by the City. The City has retained the right to require a
Fisheries Study in areas not included on the Hazard Area Inventory if it is believed a development project
will result in significant impact to salmonids that would likely require mitigation beyond that which is
provided for in the Soos Creek Basin Overlay. Finally, the decision to include Coho within the bounds
of this proposal relates to the need to provide systematic water quality and habitat protection.
• Although Chinook are principally regarded as large river species, there is documented Chinook use in
areas of lower Mill Creek, Mullen Slough, Midway Creek and Springbrook Creek as well as the Green
Planning Comrnittee Meeting 9/10/01
ESA Response Under SEPA
Page 2
River system. Conversely, Coho primarily utilize smaller stream systems and have been documented
throughout all of the systems within Kent. In many areas these habitats overlap at various life stages for
both species of salmonids. further, the network of stream and drainage systems that comprise the
watershed collectively determine the overall quality of habitat for salmonid species. Upstream impacts to
smaller systems cumulatively degrade larger downstream systems by introducing sediments, increasing
water temperature, decreasing available dissolved oxygen and generally creating an inhospitable
enviromnent for insect life upop which salmon depend.
Section 9(a)(1) of the ESA prohibits "take" of a listed species. "Take" is further defined as activities that
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect species, or attempt to do any of
these. Further, impact on a protected species habitat may harm members of that species and, therefore,
constitute a"take"under ESA.:
This proposal will apply onlylin instances where development is large enough to trigger environmental
review pursuant to SEPA and tequires that an independent study be provided along with the development
proposal. This study will identify the direct and indirect effects of the proposed development upon to
affected species and will propose mitigation to minimize or offset these impacts. In cases where no
impact is identified between the development proposal and affected species, no additional mitigation
would be required. It is intended that these regulations will remain in place while the City pursues the
implementation of new Sensitive Areas Standards and will be replaced by the formal adoption of those
standards.
RECOMMENDATION:
Forward draft resolution and ordinance to Council with a recommendation of approval.
CAXMIpm S:IPermit0anlESA memo(2).l oc
cc: Mike Martin,Interim Cbie>Administrative Officer
Fred Satterstrom,Acting CD Director
Charlene Anderson,Acting Planning Manager
Tom Brubaker,Deputy City Attorney(with enclosures)
Bill Wolinski,Environmental Engineering Manager(with enclosures)
Simon Stocker,Assistant city Attorney(with enclosures)
Kelly Peterson,Wellhead Prot Engr(with enclosures)
Project file
i
ORDINANCE NO.
AN ORDINANCE of the City Council of the City
of Kent, Washington, amending Section 11.03.510(D)(3)
of the Kent City Code to include Resolution No. ,
which addresses impacts of development in relation to the
Endangered Species Act, under the City's substantive State
Environmental Policy Act authority.
WHEREAS, the State Environmental Policy Act ("SEPA") authorizes
cities to place mitigating conditions on certain development proposals; and
•
WHEREAS, pursuant to RCW 43.21 C.060, the City's substantive
authority to place conditions on a proposal must be based upon policies identified by
the governmental authority and incorporated into regulations,plans, or codes; and
WHEREAS, the policies identified by the City of Kent are set forth
under Section 11.03.510 Kent City Code; and
WHEREAS, subsequent changes in law and policy have made it
necessary to update the policies set forth in Section 11.03.510(D)(3) by adding a new
subsection 11.03.510(D)(3)(aa) regarding Endangered Species Act ("ESA") mitigation
measures;NOW THEREFORE,
• 1 Endangered Species Act
Mitigation Measures
THII CITY COUNCIL OF THE CITY OF KENT, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
SE TION I. Section 11.03.510(D)(3) of the Kent City Code is hereby
amended by adding a new subsection (aa)to read as follows:
Sec. 11.03.510. Substantive authority.
D. The city designates and adopts by reference the following additional policies as
the basis for the city's exercise of authority pursuant to this section:
3. The;city adopts by reference the policies in the following city codes,
ordinances, and resolutions:
a. The citywide comprehensive plan as prepared and adopted
pursuant to the State Growth Management Act and adopted on April 18, 1995 by the
Kent city council by Ordinance 3222 and its specific components and elements, and
including all amendments thereto.
b. Shoreline master program as adopted by the Washington State
Department of Ecology on June 16, 1992 and as adopted by the Kent city council on
July 21, 1992 by Ordinance 3056 and including all amendments thereto.
C. The surface water and drainage code, Ch. 7.07 KCC and
including all amendments thereto.
d. Underground installation of electrical or communications
facilities, Ch. 7.10!KCC and including all amendments thereto.
e. Transportation master plan (Resolution 1014 and amended by
Resolution 1032) and Green River Valley transportation action plan (Resolution 1127)
as may hereafter be amended and including all amendments thereto.
2 Endangered Species Act
Mitigation Measures
f. Wastewater facilities master plan, Ch. 7.09 KCC and`including
• all amendments thereto.
g. Comprehensive water plan (Ordinances 2829 and 2960) and
conservation element Resolution 1361 and including all amendments thereto.
h. Construction standards for public works, KCC 6.02.010 and
6.02.020 (Ordinance 3117) and including all amendments thereto.
i. Street use permit requirements, Ch. 6.07 KCC and including all
amendments thereto.
j. Flood hazard protection, Ch. 14.09 KCC and including all
amendments thereto.
k. Subdivisions, Ch. 12.04 KCC and including all amendments
thereto.
1. Mobile home parks, Ch. 12.05 KCC and including all
amendments thereto.
M. Valley studies (as adopted in Resolutions 920, 921, 922, 923,
and 924).
n. Noise control, Ch. 8.05 KCC and including all amendments
thereto.
o. State building code, together with the local implementing
ordinances, KCC Title 14 and including all amendments thereto.
P. State fire code, together with the local implementing ordinances,
KCC Title 13 and including all amendments thereto.
q. Zoning, KCC Title 15 and including all amendments thereto.
r. Recreational vehicle park, Ch. 12.06 KCC and including all
amendments thereto.
S. Water shortage emergency regulations, Ch. 7.13 KCC and
Water Conservation Ordinance 2227 and including all amendments thereto.
t. Required public improvements, Chs. 6.02 and 6.03 KCC and
including all amendments thereto.
• 3 Endangered Species Act
Mitigation Measures
U. Storm and surface water drainage utility, Ch. 7.05 'KCC and
including all ame#dments thereto.
V. !! Storm drainage policies (Ordinance 2547) and including all
amendments thereto.
W. Six (6) year transportation improvement plan (Resolution 1444)
and including all amendments thereto.
X. Comprehensive sewerage plan (Resolution 915) and including
all amendments tlhereto.
y. Fire master plan (Ordinance 2511) and including all
amendments thereto.
Z. Wetlands management (Ordinance 3109) and including all
amendments thereto.
aa, Endangered Species Act development policies (Resolution No.
including_01 amendments.
S CTION Z —Severability. If any one or more section, subsections, or
sentences of this:Ordinance are held to be unconstitutional or invalid, such decision
shall not affect the validity of the remaining portion of this ordinance and the same
shall remain in fuill force and effect.
UCTION 3. —Effective Date. This ordinance shall take effect and be
in force thirty(30) days from and after passage as provided by law.
JI1VI WHITE,MAYOR
ATTEST:
BRENDA JACO�BER, CITY CLERK
4 Endangered Species Act
Mitigation Measures
APPROVED AS TO FORM:
ROGER LUBOVICH, CITY ATTORNEY
PASSED: day of 12001.
APPROVED: day of , 2001.
PUBLISHED: day of , 2001.
I hereby certify that this is a true copy of Ordinance No.
passed by the City Council of the City of Kent, Washington, and approved by the
Mayor of the City of Kent as hereon indicated.
(SEAL)
BRENDA JACOBER, CITY CLERK
• rcaow....ws-amuwe.M......m.
5 Endangered Species Act
Mitigation Measures
RESOLUTION NO.
A RESOLUTION of the City Council of the
City of Kent, Washington, implementing enhanced
reviow procedures under the State Environmental Policy
Act in response to the listing of endangered, threatened,
and I candidate species under the Endangered Species
Act.
i
WHEREAS, the City of Kent is covered by a complex network of
permanent and intdrmittent streams that collectively form significant portions of the
drainage basins of the Green-Duwamish and Cedar River basins; and
WHEEREAS, because of shifting priorities, many prior developments
within the City have had the impact of degrading and otherwise adversely affecting
these streams and river drainage environments; and
WHEREAS, these degraded environments, both within the City of
Kent and within the western Washington region, have also degraded fisheries and
fisheries habitat, ir�ipacting the future viability of certain species; and
VMEREAS, on May 24, 1999, the National Marine Fisheries Service
(NMFS) formalized its listing of the Puget Sound Chinook Salmon as a threatened
species under the 9ndangered Species Act (ESA); and
WHEREAS, on or about May 24, 1999, NMFS also identified Coho
Salmon as a candidate for listing as a threatened species under the ESA; and
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WHEREAS, on December 1, 1999, the United States Fish and Wildlife
Service (USFWS) formally listed Bull Trout in Puget Sound as a threatened species
under the ESA; and
WHEREAS, on January 9, 2001, the USFWS further announced that it
is proposing to protect Dolly Varden char in the coastal Puget Sound region of
Washington under the "similarity of appearance"provision of the ESA, because Dolly
Varden so closely resemble Bull Trout; and
WHEREAS, the Washington State Department of Fish and Wildlife,
King County's Department of Natural Resources, the Muckleshoot Indian Tribe, and
City of Kent staff and consultants have all documented use by Chinook salmon of
various areas of streams within the City of Kent. These streams include the lower
reaches of Mill Creek, Mullen Slough, Midway Creek, and Springbrook Creek; and
WHEREAS, Bull Trout are known to use the lower reaches of the
• Duwamish River, which is part of the Green-Duwamish River basin; and
WHEREAS, a majority of the rivers, streams, and tributaries of the
Cedar and Green-Duwamish River basins in the City of Kent constitute viable
salmonid habitat; and
WHEREAS, salmonids are defined as members of the family
Salmonidae which includes salmon, trout, char and whitefish; and
WHEREAS, the entirety of these stream and river systems within the
City of Kent form an interconnected habitat critical for the survival of these salmonid
species. For example, the lower and middle reaches of these rivers and streams may
provide active habitat for mature adults; the middle and upper reaches of these rivers
and streams may provide habitat for spawners and fingerlings in juvenile phases; and
the further reaches of these streams may also form a complex assemblage of surface
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i
water drainage channels, springs, streams, and wetlands that determine the overall
quality of the habitat for salmonid species. In addition, although not directly used by
these salmonid species, the upper reaches of these intermittent and permanent streams
have a significant ;impact on water temperature, water quality, and food sources for
these affected sahnpnid species; and
WWREAS, Puget Sound Chinook are regarded as a large river system
species, and Coho are associated with smaller streams. As a result, in many areas
throughout the Green-Duwamish and Cedar watersheds, their various habitat needs
commonly overlap; at different life stages. Because of the complex interconnectivity
among these varicj s riverine environments and because of the overlapping habitat
concerns, it is ap*opriate to consider both listed and candidate salmonid species as
the City addresseIp impacts of the Endangered Species Act on its land use and
development practices, to the extent those practices affect this watershed environment;
and
VIMREAS, the condition of stream buffers, or riparian areas, has a
direct influence oh the quality and quantity of insect life, water temperature, and
dissolved oxygen Upon which all species of salmonids depend. Further, the conditions
of these buffers directly affects the amount and type of vegetation along these streams,
all of which have an interrelated and cumulative impact on the quality of these riparian
environments. The condition of upstream environments has a direct effect on
downstream environments and ultimately impacts the water quality of the Green,
Duwamish, and Cedar Rivers; and
VnOREAS, because past development practices resulted in ineffective
management of these riparian areas, widespread problems currently exist related to
temperature, watet quality(in particular, dissolved oxygen), and insect life throughout
the watershed; and
3 Enhanced Review Procedures—
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WHEREAS, the condition of these riparian buffer areas is recognized
as a critical limiting factor to salmon habitat quality and, ultimately, to salmon
survival; and
WHEREAS, the enforcement of the Endangered Species Act to protect
these candidate, threatened, and endangered species in western Washington makes it
appropriate for the City of Kent, at this time, to develop interim land use and
development regulatory procedures, under the authority of the State Environmental
Policy Act, to provide for further analysis and review of impacts to salmonid habitat
on all new development and redevelopment proposals; and
WHEREAS, other planning and regulatory concerns also make it
appropriate, at this time, to revise land use and development standards. Since 1999,
the City of Kent has actively participated in a regional cost sharing proposal to
develop Salmon Conservation Plans in the Green-Duwamish watershed and the Cedar
River watersheds. These Salmon Conservation Plans are directed toward the recovery
. of multiple species of salmonids. These plans utilize a "shared strategy," which
reflects a cooperative effort among federal agencies, tribal concerns, the State of
Washington, and environmental and business interests in the western Washington
region. Their purpose is to effectively coordinate salmon recovery planning
throughout the State of Washington, embracing a multiple species recovery plan; and
WHEREAS, as a requirement of the Federal Clean Water Act, the
amount of pollution that must be reduced to attain Federal Clean Water quality
standards must be determined. Water bodies that are not in compliance with these
standards have been identified by the United States Environmental Protection Agency.
Numerous stream reaches throughout the City of Kent are listed as inadequate for both
temperature and dissolved oxygen. The lower Green River and the Duwamish River
are also listed for temperature. The Washington State Department of Ecology is
developing a program to reduce pollution and improve water temperatures that will
4 Enhanced Review Procedures—
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also regulate development practices in riparian environments within the City of Kent;
and
WHEREAS, given the context of all the proceeding regulatory,
development, and (natural history, it is now appropriate to provide the following
interim review procedures to evaluate impacts to salmonids from proposed
development and redevelopment projects within the City of Kent; NOW
THEREFORE,
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals Incorporated. The foregoing recitals are
incorporated into the body of this Resolution.
SE TION 2. Purpose. The purpose of these guidelines is to provide
interim protection to listed salmonids and their habitat within the City of Kent. It is
anticipated that these interim measures will be superceded by more formal changes to
the City's codes. These changes, however, will take one to two years to fully
implement, and the City has a compelling interest to provide interim protection to
listed and candidate species and their habitat.
SECTION 3. Areas Affected—Management Zones. These policies
and procedures wi11 apply to all properties, projects or portions of projects that fall
within the 200 f, management zone adjacent to all rivers, streams, creeks and
tributaries located on the City's Hazard Area Inventory. The City's SEPA
Responsible Official may also apply these policies and procedures to major
development proposals within the City's Soos Creek Basin Overlay area, if it appears
that the development proposal may impact the 200 foot management zone adjacent to
all rivers, streams; and creeks within the Soos Creek Basin Overlay area. These
policies and procedures will apply, even though the affected river, stream, creek or
5 Enhanced Review Procedures—
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tributary may be intermittent or permanent and even though the course of the river,
stream or creek is in a natural, altered, or man-made condition. These policies and
procedures, however, will not apply to minor development proposals that do not
impact the 200 foot management zones (e.g., and without limitation, certain changes
in use, interior tenant improvements, above-ground storage tanks (1200 gallons or
under) that involve little or no paving, etc.)
SECTION 4. Procedure. This process will be included as part of the
City's State Environmental Policy Act ("SEPA") review under the City's substantive
SEPA authority.
SECTION S. Fisheries Study Required. Applicants will submit a
concise Fisheries Study that evaluates the likelihood of construction and/or operational
aspects of the project that may have adverse affects on salmonid habitat adjacent to the
project site. The Fisheries Study will be completed and submitted with the SEPA
Checklist for all projects that occur within the described management zone. The
iFisheries Study shall be prepared by a qualified engineer, hydrologist, biologist or
geomorphologist who understands the requirements for properly functioning
conditions for Bull Trout, Chinook and Coho salmon. The consultant must
demonstrate such expertise to the satisfaction of the City of Kent, which may require
the submittal of resumes, work examples or other information demonstrating
professional expertise on relevant fisheries issues. An annotated outline that describes
the Fisheries Study contents is provided below for guidance:
CONTENTS
1.0 INTRODUCTION — Identify the name of the applicant, date of
submission,property address, tax parcel number and project name.
2.0 PROJECT DESCRIPTION
2.1 Location of the Proiect and Action Areas - Provide a vicinity
map (with its own north arrow) which clearly shows the
• location of the development parcel with respect to public streets
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. l
and other parcels and developments. The map should identify
the locations of staging and work corridors associated with the
project The action area includes the project area and all areas
surrounding the development parcel up to where effects will no
longer be felt.
2.2 Project Description Provide a narrative description of the
proposed project and the project purpose. Describe the
construction methods and timing of construction to be
employed in building the project in sufficient detail to allow the
evaluation of potential impacts. The objective is to identify
both temporary and permanent actions that could affect
salmonid species or critical habitat. Consider actions such as,
but not limited to, vegetation removal, temporary or permanent
increases in noise level, temporary or permanent water quality
impacts associated with sedimentation, turbidity and/or erosion,
temporary or permanent channel modifications, temporary or
permanent hydrological or hydraulic alterations. The project
description should include secondary impacts such as access
roads,power lines, etc.
3.0 HABITAT DESCRIPTION
3.1 Existing Environmental Conditions
3.1.1 Biota — List all federally listed or proposed species
present in the vicinity of the project. Provide the species
listing status (threatened or endangered). Describe how
the listed species is currently utilizing the action area,
such as spawning, breeding, rearing, over-wintering, or
travel corridor.
3.1.2 Habitat — Describe the present condition of the habitat
elements essential for the listed or proposed species.
For a list of habitat elements essential for listed or
proposed salmonids in freshwater habitats, refer to the
Pathways and Indicator developed by the National
Marine Fisheries Service (NMFS) in "A Guide to
Biological Assessments (NMFS, March 1999), and the
US Fish and Wildlife Service (USFWS) document
entitled "A Framework to Assist in Making Endangered
Species Act Determinations of Effect for Individual or
Grouped Actions at the Bull Trout Subpopulation
Watershed Scale"(USFW,February 1998).
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i
3.1.3 Other Sensitive Areas — Identify and describe'all other
sensitive areas as defined by the Kent City Code and
reference all other environmental reports completed for
the project.
4.0 EFFECTS OF THE ACTION
4.1 Effects Analysis - These sections should describe the direct,
indirect, and secondary effects of the development project on
ESA listed or proposed species and their habitat. Direct effects
are defined as effects that may result from the project that
would directly affect the species. Indirect effects are effects
that may result from the project that would occur later in time.
4.1.1 Construction Disturbances — Describe any direct or
indirect effects resulting from project construction
activities within the action area. The evaluation of
construction effects should consider the construction
sequencing, site preparation, equipment used, materials
used, work corridor, staging areas and equipment wash
outs, stockpiling areas, running of equipment during
construction, soil stabilization, clean-up and re-
vegetation, project timing, and the duration of
construction.
4.1.2 Habitat - Describe any alterations to essential habitat
identified for the ESA listed or proposed species within
the action area. Include habitat alterations to essential
features such as spawning sites, over-wintering areas,
travel corridors, loss of prey or food sources, water
quality and quantity, and riparian vegetation. Address
the timing of disturbances to habitat relative to the life
history of the listed or proposed species within the
action area.
4.1.3 Biota - Describe any direct or indirect effects of the
development project on listed or proposed species
within the action area. Consider impacts to both
individuals and the population. Describe any project
effects relative to the life history of the species that may
be affected.
4.1.4 Net Effects of Action — Provide a summary of the
project impacts with a concluding statement for each
listed or proposed species of effect. Effect
i
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determinations should be selected from the following
three categories:
No Effect (NE) — no effect whatsoever for the listed
species or its required habitat;
May Affect Not Likely to Adversely Affect (NLAA)
effects to the listed species of required habitat are
insignificant. This determination would be made for
activities that have only a beneficial effect with no short-
or long-term adverse impacts;
Likely to Adversely Affect (LAA)— effects will result in
a short- or long-term adverse effect on the listed species
or their required habitat.
4.2 Conservation/ Mitigation Measures — Describe the
conservation/mitigation measures that will be taken to reduce or
eliminate the adverse impacts of the proposed project
development. Include a discussion of how construction
methods and/or site locations have minimized potential impacts
to listed species. These conservation/mitigation measures may
include alterations in the proposed activity such as timing
restrictions or changes in project features or location which are
intended to reduce impacts, or Best Management Practices
(BMPs) that will be implemented. The report shall clearly
propose on, and/or, off-site mitigation measures that will result
in protection of affected species.
4.2.1 Mitigation Plans — If applicable, conceptual mitigation
plans shall be appended to this report.
5.0 MERENCES—Provide a listing of the references cited in the report.
SECTION 6. Review and Approval. The City must review and
approve the Fisheries Study prior to issuing an Environmental Decision under SEPA.
In the event it determines that insufficient content exists or that additional content is
necessary to approjve the Fisheries Study, the SEPA Responsible Official may require
additional studies or additional supporting information.
SECTION 7. Severability. If any section, subsection, paragraph,
sentence, clause, or phrase of this resolution is declared unconstitutional or invalid for
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any reason, such decision shall not affect the validity of the remaining portions of this
resolution.
SECTION 8. Ratification. Any act consistent with the authority and
prior to the effective date of this resolution is hereby ratified and affirmed.
SECTION 9. Effective Date. This resolution shall take effect and be
in force immediately upon its passage.
PASSED at a regular open public meeting by the City Council of the City
of Kent,Washington,this day of
CONCURRED in by the Mayor of the City of Kent this day of
12001.
• JIM WHITE,MAYOR
ATTEST:
BRENDA JACOBER, CITY CLERK
APPROVED AS TO FORM:
ROGER A. LUBOVICH, CITY ATTORNEY
10 Enhanced Review Procedures—
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I heieby certify that this is a true and correct copy of Resolution No.
passed by the City Council of the City of Kent, Washington, the day
of 12001.
BRENDA JACOBER,CITY CLERK
P.'LS W'Ae W Om'ESA3PRiidue@s'N¢��I
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c
PERKINS COIE LLP
1201 THIRD AVENUE, SUITE 4800•SEATTLE,WASHINGTON 98101-3099
• TELEPHONE: 206 583-8888•FACSIMILE: 206 583-8500
Laura N.Whitaker
(206)583-8584
whitl@perkinscoie.com
August 31, 2001 RECEIVED
Via Facsimile and First Class Mail SEEP 0 4 2001
PTY LANNING S RV CES
Kim Marousek, Senior Planner
City of Kent
Planning Services
220 Fourth Avenue S.
Kent, WA 98032-5895
Re: Proposed Interim Salmon Protection Guidelines
Dear Ms. Marousek:
• This comment letter is submitted on behalf of Boeing Realty Corporation
("BRC") in response to the City of Kent's ("City") draft Interim Guidelines for
Evaluating Impacts to Salmonids From Proposed Development Projects
("Guidelines"). Drafted in response to the federal Endangered Species Act ("ESA"),
the Guidelines will amend the City's rules implementing the State Environmental
Policy Act ("SEPA"). BRC agrees that protection of salmonids is an important and
laudable planning objective. For the reasons that follow, however, BRC opposes the
Guidelines as currently written.
1. The Guidelines are unreasonable, not science-based and fail to
establish uniformity for land use decision-making.
The Guidelines propose two different standards for developments along
waterways within the City limits: the Soos Creek Basin Overlay standards, and those
contained within the Guidelines for watercourses where the Soos Creek standards do
not apply. With no scientific foundation or detailed explanation, the Guidelines assert
that "the setbacks and standards associated with the watercourses covered under the
Hazard Area Inventory may not provide adequate protection to sahnonid resources
that use these waters." Guidelines, Intro. On this basis, the Guidelines would apply a
• [03003-0106/SLO12430.0421
ANCHORAGE BELLEVUE BOISE DENVER HONG KONG LOS ANGELES MENLO PARK OLYMPIA PORTLAND SAN FRANCISCO SEATTLE SPOKANE TAIPEI WASHINGTON,D.C.
e
August 31, 2001
Page 2
"management zone" for,any proposed development within 200 feet of"all major or
minor creeks (as defined by KCC 15.02.092 and 15.02.093), ditches, and their
associated wetlands in areas the Soos Creek Basin Overlay standards do not apply."
Guidelines, Intro.
As further discu$sed below, the Guidelines establish an unreasonable and
potentially time-consuming study, review, and approval process for assessing and
mitigating potential imp acts to salmonids. The Guidelines state that "[t]hese
additional review requirements are specifically designed to increase protection of
salmonids recently listed and/or candidate species under the Endangered Species Act
(ESA)." Guidelines, Intro.
DOE regulations require that mitigation imposed pursuant to SEPA be based
on identifiable and pr4able adverse environmental impacts (WAC 197-11-660) and
that such mitigation be "reasonable". WAC 197-11-660. Similarly, the ESA requires
federal agencies to utilize the "best science or commercial data available" in reaching
ESA decisions. See, e.g., 16 U.S.C. § 1536(a)(2). We understand the establishment
of a special assessment;process to be a form of mitigation subject to the requirements
of WAC 197-11-660. Moreover, as ESA related concerns have been an important
factor in the establishmlent of the Guidelines, it would appear to follow that the
Guidelines should be based on a similar scientific foundation.
The Guidelines,!however, offer no scientific foundation or explanation for its
reasoning and conclusions. For example, why do salmonid non-bearing streams
receive the same level of analysis as salmonid streams? Are standards governing
developments outside the Soos Creek Basin significantly different than those within
the Basin? Why would salmon require a 100 foot buffer along salmon-bearing
streams within the Soot Creek Basin (see KCC 15.08.224(D)(3)(a)(2)(ii)) but need a
200 foot "managementjzone" along all watercourses (whether salmon bearing or not)
outside the Soos Creep Basin?' Why would "ditches" require a 10 foot buffer within
the Soos Creek Basin (see KCC 15.08.224(D)(3)(a)(2)(v)), but need a 200 foot buffer
elsewhere? Finally, it is not clear why wetlands "associated with ditches" should
require a 200 foot "management zone" when the City's wetland management rules
1 We also note that the City's Planning Department may increase the buffer widths within the
Soos Creek Basin only in aIccordance with"criteria set forth in administrative rules . . ."
KCC 15.08.224(1))(3)(a)(�). It is not apparent from the Code that such rules have been promulgated.
[03003-0106/SL012430.0421 8131/01
August 31, 2001
• Page 3
only prescribe 25 to 100 feet of buffers, depending on the wetland classification. See
KCC 11.05.110.
2. The scope of the Guidelines is excessive and vague.
As noted above, the Guidelines will apply to any proposed development within
200 feet of"all major or minor creeks (as defined by KCC 15.02.092 and 15.02.093),
ditches, and their associated wetlands in areas where the Soos Creek Basin Overlay
standards do not apply." Guidelines, Intro. The Guidelines alternatively refer to the
threshold area as a 200 foot "management zone." Guidelines, Approach. Except for
"major or minor creeks," however, the Guidelines do not define critical terms or cite
to existing definitions within the City's Municipal Code. Accordingly, it is not clear
what constitutes a "ditch" or an "associated wetland" for purposes of the Guidelines.
For example, is a biofiltration Swale unused by salmonids considered a "ditch"?
Would a wetland hydrologically linked underground to a stream or creek constitute an
"associated wetland"? Further, it is not clear what is intended to occur or not occur
within the "management zone."
• In contrast to the Guidelines, the Soos Creek Basin Overlay standards within
the City's Zoning Code are relatively clear in scope. "Ditches" within the Basin (to
which 10 foot buffers apply) are defined as:
irrigation ditches, canals, storm or surface water conveyance channels,
or other entirely artificial watercourses not utilized by salmonids.
Ditches do not include reaches of streams that have been relocated, or
otherwise created to reroute flows around developments or public works
facilities, but which carry flows from established creeks.
KCC 15.08.224(D)(2).
On the other hand the Soos Creek Basin overlay standards define the "streams"
(to which 25 to 100 foot buffers apply within the Basin) to reasonably exclude many
types of conveyances:
"those areas in Kent where surface waters flow sufficiently to produce a
defined channel or bed. A defined channel or bed is an area which
demonstrates clear evidence of the passage of water and includes, but is
not limited to bedrock channels, gravel beds, sand and silt beds and
• defined channel swales. This definition is not intended to include
103003-0106/SLA12430.0421 M1/01
August 31, 2001
Page 4
irrigation;ditches, canals, storm or surface water runoff devices or
other entirely artificial watercourses unless they are used by salmonids
or used to convey streams occurring prior to construction of such
watercourses, but is intended to include creeks, sloughs, and rivers.
The channel or bed of a stream does not have to contain water all year
long for the reach to be considered a stream.
KCC 15.08.224(D)(2) (;emphasis added).
In contrast to thO Soos Creek Basin Overlay standards, terms critical to
establishing the scope df the Guidelines are not clear. Further, the prescriptive
differences between the two standards further evidence an arbitrary and confusing
disparity between the Guidelines and the Basin Creek Overlay standards. The
Guidelines therefore require clarification and uniformity to fully and fairly evaluate its
scope and impacts to la�downers.
3. The Guidelines impose a cumbersome review and approval
process.
The Guidelines will require applicants for construction projects within the
proposed 200 foot "management zone" to submit a Fisheries Study evaluating the
potential impacts to fedjerally listed or candidate species. See generally Guidelines,
Contents. The format of the Fisheries Study appears to be modeled after a biological
assessment prepared by federal agencies for an ESA section 7 consultation.2 From the
standpoint of administr4tive efficiency and development predictability, this is
unfortunate: the sectioi 7 consultation process is a time-consuming process with little
certainty, clarity, or consensus, often taking years to complete.
Indeed, it appeals that the proposed Guidelines may require an even longer
completion time than section 7 consultation. For example, the Guidelines require an
analysis of"direct, indilrect, and secondary effects" of the development project on
ESA listed or proposed,species and their habitat. The ESA section 7 regulations
2 Under section 7(a)(2) of the ESA,federal agencies are required to consult with NMFS and/or
the USFWS, as appropriate,to "insure that any action authorized,funded, or carried out by such
agency . . . is not likely to j opardize the continued existence of any endangered species or threatened
species . . ." 16 U.S.C. § 1636(a)(2).
8l31/O1
[03003-0106/SL012430.0421 1
i
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August 31, 2001
Page 5
define "indirect effects" as those caused later in time by the proposed action, but still
"reasonably certain to occur." 50 C.F.R. § 402.02. In contrast, the Guidelines define
"indirect effects" as those that simply "may result from the project that would occur
later in time." Guidelines, Contents, section 4.1. Further, the Guidelines (nor the
ESA regulations) do not define what is intended by "secondary effects."
Unlike the ESA regulations, the Guidelines also do not provide for the concept
of an "environmental baseline" by which the "effects of the action" may be fairly
evaluated. See 50 C.F.R. § 402.02. Instead, the Guidelines merely provide that the
"direct, indirect, and secondary effects" of the proposed development will be
subsequently evaluated against the "present habitat conditions" without consideration
of other sources of impacts, such as earlier developments, federal actions, or natural
factors (example, flooding). Guidelines, Contents, section 3.1.2. This approach may
therefore unfairly impose more restrictive burdens on one project than another similar
development based on impacts other than those stemming from the later development.
Perhaps most importantly, the Guidelines provide no adequate standards,
timeframes, or constraints on the City to accept or reject any particular Fisheries
• Study. For example, the Guidelines suggest that "properly functioning conditions"
("PFC") may serve as the standard by which to evaluate impacts and suitable
mitigation. See, e.g., Guidelines, Qualifications. PFC is a concept for maintaining
and restoring ecological functions necessary for conservation of listed species. PFC,
however, is a concept developed in relatively pristine forest riparian conditions and
applied in the context of ESA protections relating to forest practices. Pacific Coast
Federation of fisherman's Assn v. AMFS, 71 F. Supp. 2d 1063, 1069 (W.D. Wash.
1999). Similar numeric standards have not been established for urban developed
conditions.
There is a strong public policy in this state supporting administrative finality in
land use decisions. Skamania County v. Columbia River Gorge Comm'n, 2001 Wash.
LEXIS 460, at *29 (Wash. 2001). One aspect of administrative finality and
predictability is that investment-backed expectations will be considered in a timely
manner according to principled, nonarbitrary standards. Cf. id. The Guidelines
violate this policy: as currently drafted, they are vague and unclear, lack uniformity,
and are not based on standards that are adequate or even meaningful in the context of
the development of urban land.
• [03 00 3-01 061SL012430.042] 8/31/01
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August 31, 2001
Page 6
4. The level!of protection afforded species under the Guidelines
far exceed that under the ESA.
Section 9 prohib0s the take of species listed as threatened or endangered under
the ESA. See 16 U.S.G{. § 1538(a)(1). Similarly, the consultation obligations of
federal agencies'under lection 7 of the ESA only applies to federally listed species.
See 16 U.S.C. § 1536(aj)(1)-(2). No similar protections apply to federally petitioned,
proposed, or candidate species.
The Guidelines ¢lo not differentiate between listed, proposed, or candidate
species. Thus, the Guidelines' obligations to conduct Fisheries Studies and avoid or
minimize impacts to fish and their habitat apply with equal force to both listed and
unlisted species. See, e.g., Guidelines, Intro. Therefore, Guideline requirements
exceed those established by ESA.
Additionally, th0 Guidelines will apply to the Dolly Varden, a species proposed
for listing under sectio* 4(e) of the ESA due to its similarity to the listed Bull Trout.
See 66 Fed. Reg. 1628 kJan. 9, 2001). While the "take" prohibitions under section 9
apply to species listed Oder section 4(e), the ESA does not extend the other
protections of the Act, including the duties of federal agencies under section 7 to
consult and avoid jeopdirdizing the species.3 In the absence of explanation or
scientific justification, the Guidelines should not impose burdens on private
landowners that exceed the scope of protections and obligations applicable to federal
agencies under the ESA.4
3 Accordingly, a federal agency could theoretically jeopardize a species listed under 4(e)
through habitat destruction;or modification without violating the ESA, as long as no species were
present at the time and the federal action did not result in"take".
4 We also question]whether the City is authorized by state law(SEPA or otherwise)to
implement the ESA by impbsing land use restrictions on private landowners that so closely mirror the
section 7 obligations for federal agencies. See e.g.,Ass'n of Wash Business v. State of Washington.
Dept. of Ecology, SHB Nod 00-37 (Aug. 27,2001) (invalidating Ecology's shoreline rules under the
Shoreline Management Act as improperly implementing the ESA).
[03003-0106/SLA 12430.0421 8/31/01
August 31, 2001
Page 7
5. The Guidelines may expose the citizenry to criminal and civil
liability under the ESA.
Section 9 of the ESA prohibits any person from "taking" any endangered
species.5 16 U.S.C. § 1538. Federal regulations extend the "take" prohibition to
species that, although not endangered, are listed as threatened. See, e.g., 50 C.F.R.
§§ 17.21, 17.31. The ESA defines "take or taking" as "to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such
conduct." 16 U.S.C. § 1532(19). NMFS defines "harm" as "any act which actually
kills or injures fish or wildlife. Such an act may include significant habitat
modification or degradation where it actually kills or injures fish by significantly
impairing essential behavioral patterns, including breeding, spawning, rearing,
migrating, feeding or sheltering."6 C.F.R. § 202.102.
The ESA authorizes criminal and civil penalties for specified violations with
requisite intent, including unauthorized and incidental "take." It states in part that,
"any person who knowingly violates any provision of this chapter, or any permit or
certificate issued hereunder, or any regulation . . . shall, upon conviction, be fined not
•
5 Under the ESA, a"person"is broadly defined as:
an individual, corporation, partnership,trust, association, or any other private
entity; or any officer, employee, agent, department, or instrumentality of the
Federal Government, of any State, municipality, or political subdivision of a
State, or of any foreign government; any State,municipality, or political
subdivision of a State; or any other entity subject to the jurisdiction of the
United States.
16 U.S.C. § 1532(13).
6 The regulations promulgated by the USFWS define harm to include"significant habitat
modification or degradation where it actually kills or injures wildlife by significantly impairing
essential behavior patterns, including breeding,feeding, or sheltering." 50 C.F.R. § 17.3. The
USFWS has defined"harass"means an intentional or negligent act or omission which creates the
likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal
behavioral patterns which include,but are not limited to, breeding, feeding, or sheltering." 50 C.F.R.
• § 17.3. NMFS has not yet defined "harass"yet through'a formal rule-making.
103003.0106/SLA12430.042] 8/31/01
♦ 1
August 31, 2001
Page 8
more than $50,000 or i�Lprisoned for not more than one year, or both . . ."7 Id. §
1540(b)(1). The ESA also has different levels of culpability for two tiers of civil
penalties.'
In addition to federal enforcement actions, citizen suits also may also be filed
to enjoin a pending lands use activity where it can be shown that the activity is
reasonably certain to inpure a listed species. See, e.g., American Bald Eagle v. Bhatti,
9 F.3d 163 (Is' Cir. 1903). In the Ninth Circuit, a citizen-suit plaintiff need only show
a 1freasonably certain threat of imminent harm" to a listed species to be entitled to an
injunction under the E$A. Marbled Murrelet v. Pacific Lumber, 83 F.3d 1060, 1066
(91h Cir. 1996).
Pursuant to the Guidelines, the City would require its citizenry to evaluate and
report the anticipated iip acts to fish and their habitat by construction projects within
the 200 foot "managemjent zone." Nowhere does the Guidelines provide notice that
violations of the ESA, given inadvertent and unintended, may result in significant
criminal or civil penalties, or risk injunction through a citizen suit. Further, NMFS
has not endorsed the Guidelines in the form of a section 10 incidental take
permit/habitat conserv4tion plan, a "4(d)" rule, or other ESA compliance tool that
insulates the City and its citizenry from ESA liability. Depending on the facts, a
Fishery Study could th$refore be deemed an admission of culpability and
subsequently used agaipst a developer or owner in an enforcement action or citizen
suit for the inadvertent stake from a construction activity or accident.
7 Courts have held that the ESA is a"general intent" statute. In other words,the government
may need only show that a defendant"knowingly" engaged in the conduct that resulted in the
unauthorized take and that the activity was the reasonable and proximate cause of the harm to the listed
species. See, e.g., United States v. McKittrick, 142 F. 3d 1170, 1177 (9"' Cir. 1998); United States v.
Imo, 949 F.2d 759 (5`h Cir; 1991); United States v. St. Onge, 676 F. Supp. 1044 (D. Mont. 1988).
'Non-knowing vio'lations of the ESA are punishable by a fine of up to$500 per violation. 16
U.S.C. § 1540(a)(1). "Knowing"violations of Section 9 may be punished by a fine of up to$25,000
per violation. Civil penaltiO are imposed by federal agencies in administrative proceedings. The
penalties are then enforced.Luid collected in federal district court.
[03003-0106/SLA 12430.042] 8/31/O1
August 31, 2001
• Page 9
6. The Guidelines may result in a taking of property rights
without compensation and due process.
Enactment of the Guidelines may constitute a compensable "taking" in
violation of the Fifth Amendment. The Taking Clause of the Fifth Amendment
provides that private property "shall not be taken for public use without just
compensation." One form of compensable taking may arise when a government's
regulation overly restricts the use to which an owner may put his all or part of his
property, especially if a public benefit is conferred. See, e.g., Lucas v. South Carolina
Council, 505 U.S. 1003 (1993); Penn Central Trance. Co. v. New York, 438 U.S. 104
(1978); Guimont v. Clarke, 121 Wash.2d 586 (1993); City of Seattle v. McCoy, 101
Wash. App. 815 (2000).
Designed to protect and benefit the public resources of fish and their habitat,
the Guidelines will mitigate on construction projects that are outside the Soos Creek
Basin and within the 200 foot "management zone." As currently drafted, the
Guidelines appear arbitrary and without scientific justification, will impose serious
economic impacts on landowners, and unreasonably interferes with legitimate
. investment-backed expectations. ESA-related concerns do not trump legitimate
property rights. See e.g., Tulare Lake Basin Water Storage Dist. v. United States,
No. 98-101 L (Fed. Cl. April 30, 2001). The Guidelines may therefore violate the
Fifth Amendment and result in a compensable taking of private property.
We appreciate the opportunity to comment on the Guidelines. Should you
have questions regarding this letter, please do not hesitate to contact me.
Sincerely yours,
Laura Whitaker
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August31, 2001
Page 10
cc: C. Temmink
G. Bresslour
G. Warden
Patrick Ryan
i
8/31/Ol
[03003-0106/SL012430.042]
AUG-31 -2001 09 :46 AM AC ROTH ENVIRONMNTL SUCS 206 783 2004 P. 01
' AC Roth`oth 115 North 49"'Street Seattle,Was 98103
ENVIRONMENTAL SERVICES 206.784.4753 FAX 206.789.0664
acroth8earthlink,net
Biological Evaluation Wetland Assessment
Endangered Species Act Documentation
Environmental Documentation and Permitting
August 31, 2001 File: 210042
Kim Marousek, Senior Planner
City of Kent
Planning Services
220 Fourth Avenue S,
Kent, WA 98032.5895
Ref: Comments for the Public Record, Proposed City of Kent Interim Guidelines For
Evaluating Impacts To Salmonids From Proposed Development Projects
Dear Ms. Marousek;
I want to thank you for this opportunity to comment on the Proposed Interim
Guidelines For Evaluating Impacts To Salmonids From Proposed Development
Projects (Guidelines).
As a candidate , pecies, coho salmon are not now afforded protection under the
Endangered Species Act (ESA). In the introduction to the Guidelines, the City of
Kent (City) has included coho salmon (Oncorhynchus kisutch) for increased
protection in the event that coho "should....become listed at some later date."
While stating that there is a potential that habitat degradation could be a major impact
on survival of native stocks of coho, a 1995 National Marine Fisheries document (NOAA
1995) evaluated the status of coho salmon in the Puget Sound Basin, and failed to
advance this species from candidate to proposed (threatened or endangered) status,
stating that:
"Cohn salmon within this ESU are abundant and, with some exceptions, run
sizes and natural spawning escapements have been generally stable.
"It Is difficult to identify self-sustaining, native stocks within this region.
"Recent droughts and change in ocean production have probably reduced run
sizes.
"Further consideration of this ESU Is warranted to attempt to clarify
uncertainties.
• According to NMFS, due to manpower constraints there is no schedule at this time for
final determination of the status of coho salmon in Puget Sound.
AUG-31-2001 09 :46 AM AC TROTH ENVIRONMNTL SUCS 206 783 2004 P . 02
Y
Ms, Kim Marousek Page 2
August 31, 2001
In essence, then, the City] is proposing to require applicants to incur costs for evaluation
of development-related impacts to an abundant species which is not currently listed,
may or may not be listed lin the near future on the basis of development impacts, and
which in many cases may be the only salmonld species in a project's vicinity.
Furthermore, by proposing to require that applicants address potential impacts to this
species, against a backdrop of budgetary constraints, the City is proposing to obligate
staff resources for review which might more reasonably be directed at projects with
potential impacts to those species which gre listed as either proposed, threatened, or
endangered. If pending SSA 4(d) rule changes are the impetus for proposing adoption
of standards of protection at this time, this latter approach appears to be in the best
interest of applicants andthe City.
Accordingly, should cohol become listed at a future date, the City could justify adoption
of measures for heightened protection of the species at that time.
Another comment includes the City's reference to noise levels for consideration under
the Guidelines. Unless 6-water work such as pile driving is proposed, the literature
suggests that temporary or permanent noise impacts to salmonids are insignificant to
minimal.
This concludes my comments to the Guidelines. Please include me on the contact list
for this proposal.
Sincerely,
AC Roth Environmental Services
Tony Roth
Senior Biologist
Reference:
NOAA. 1995. Status Review of Coho Salmon from Washington, Oregon, and
California. National Marine Fisheries 5ervlce, Northwest Fisheries Science
Center, Coastal Zonq and Estuarine Studies Division, Seattle, WA and National
Marine Fisheries Set ice Southwest Region, Protected Species Management
Division, Long Beach, CA. NOAA Technical Memorandum NMFS-NWFSC-24.
September 1995.
i
9/10/01
Planning Committee
4W#2
#ZCA=2001 =3 PROPOSED REVISIONS
TO KCC CHAPTERS : 2.32, 11 .037 12.011
14.01 , 14. 11
ACTION ITEM :
Staff is recommending forwarding draft ordinance changes
to City Council, updating code provisions relating to the
administration of development regulations by amending
Chapter 12.01 of the Kent City Code, and related portions of
Chapters 2.327 11 .03, 14.01 , and 14. 11 , with
recommendations of approval.
COMMUNITY DEVELOPMENT
Fred N. Satterstrom, AICP, Acting Director
PLANNING SERVICES
Charlene Anderson,AICP,Acting Manager
Phone:253-856-5454
KEN T Fax: 253-856-6454
WASHINGTON Address: 220 Fourth Avenue S.
Kent,WA 98032-5895
September 4, 2001
TO: CHAIR TOM BROTHERTON&PLANNING COMMITTEE MEMBERS
FROM: KIM MAROUSEK, SENIOR PLANNER
SUBJECT: #ZCA 2001-3 PROPOSED REVISIONS TO KCC CHAPTERS:232,11.03,12.01,14.01,14.11
PLANNING COMMITTEE MEETING OF SEPTEMBER 10, 2001
At the August 6 Planning Committee Meeting, staff presented proposed changes to the City's
permit processing guidelines. These changes primarily modify section 12.01 of the Kent City
Code but also amend related portions of 2.32, 11.03, 14.01, and 14.11. In general, these
revisions address sections of code conflict and provide clarifying language. The bulk of the
proposed revisions are minor in nature but there are some substantive changes proposed.
Planning has worked closely with the City Attorney's office to develop a draft ordinance, which
• incorporates the necessary changes in procedures, and it is attached to this report. Staff will
review the proposed ordinance changes with the Committee although some highlights are as
follows:
Appeal Process
One major part of this revision is to consolidate in the Code the process for appeals. This
effectuates changes in Chapters 11.03 and 12.01. These changes align the City Code with state
law requirements; however, they also delete the land use application appeal process before
Council. If accepted, these changes would require an applicant to appeal a hearing examiner
decision directly to Superior Court. In addition, these changes would eliminate the local
substantive appeal process to SEPA decisions.
Modifications to Chapter 14.01 and 14.11 (UBC and Vesting)
These changes principally serve to clarify in Chapter 14.01 those types of permits that are subject
to the processing requirements of Chapter 12.01 and those which are subject to processing and
expiration timelines set forth in the Uniform Building Code. In addition, language is added to
Chapter 14.11 to clarify permit vesting requirements.
RECOMMENDATION:
Forward draft ordinance changes to Council with recommendation of approval.
KM\pm S:\Permit\Plan\ZONECODEAMEND\2001\12.OIRevMemo(2).doc
cc: Fred N.Satterstrom,Acting CD Director
Charlene Anderson,Acting Planning Manager
Kim Adams-Pratt,Assistant City Attorney
Project file
i
I
i
ORDINANCE NO.
AN ORDINANCE of the City Council of the City
of Dent, Washington, updating code provisions relating to
the i administration of development regulations by
amonding Chapter 12.01 of the Kent City Code, and
related portions of Chapters 2.32, 11.03, 14.01, and 14.11.
WHEREAS, in 1998 the City Council enacted Chapter 12.01 of the
Kent City Code to',provide provisions for establishing a set of processes to be used for
land use and development proposals subject to review under the following portions of
the Kent City Code (KCC): Chapter 2.32 KCC, Office of Hearing Examiner; Chapter
11.03 KCC, Envirmnmental Policy; and Chapter 12.04 KCC, Subdivisions; and
WHEREAS, the City Council desires to update these processes and
related matters to provide for more effective and efficient processing of land use and
development proposals;NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
1 Permit Processing
SECTION 1. Section 2.32 of the Kent City Code, entitled, "Office of
the Hearing Examiner," is hereby amended to read as follows:
Sec. 2.32.150. Appeal of decision.
A. Any party who feels aggrieved by the hearing examiner's decision may submit
an appeal, if authorized by statute or Kent City Code, in. wMing to the eity ^ e;l
within twenty-one €elAtee 214-4) calendar days from the date the final decision of the
hearing examiner is rendered, u_e,,_.. of sueh ae-_.._..__ _^? h ess _»_ appeal
requesting
+ the 't eetine'1 is Y .d eh,de by fd;nanee „We unless an or-diflaflee r~ :de
appeals be made dir-e^t1 to the superior court or to another designated form.
B. The appeal shall-be , the r established made at the hear-in held h .the
�__ ___ �G11V L11 LL1111,_S L1V1V V,, G11V
1
heafifi , . 'ded, that new evidenee whieh was net available at the time-of
b
the hearingheld 1, the hee*amiaer- r be ineluded in „h appeal. The tefm eld by t
b ..
h examd shall et ifielude evidenee ,.hieh as available or „hieh .id
r-easonably have been available and was simply net pfeseated at the hearing fo
• whatevef reason.
G. The 't+ 1 hell -11- e e ifi effefs of faet_spe if ed.„a
, G��cc ilai Yrw�u ulu
er+ef.. ...........ons ffem the ___..`d errers --_ the interpretation of the eampfeh___'
1 or new 'd e „hieh was of m,ailable at the time of the he.,,ing held by the
VJ-CIIV LSV[L1 IS1C held G!f G
h
D. Upon sueh written. appeal being filed within the time pened allotted andupon
b shall be he4d by the eity eettReil. hearing Smueh
shall be held r—accm'uxicc=with Pca4 i«eeedafes . e„ted by ei t„ . ,.neil by
rcse letierr.
B. No appeal may be made from a recommendation of the hearing examiner.
Sec. 2.32.160. City council action.
A. Any application requiring action by the city council shall be taken by the
adoption of a motion, resolution or ordinance by the city council. When taking any
2 Permit Processing
. 1
such final action, the city council shall make and enter findings of fact from the record
and conclusions thOrefrom which support its action. The city council may adopt all or
portions of the hoafingexaminer's findings and conclusions from the hearing
examiner's recommendation.
B. In the case bf an ordinance for rezone of property, the ordinance shall not be
placed on the city council's agenda until all conditions, restrictions or modifications
which may have been stipulated by the city council have been accomplished or
provisions for compliance made to the satisfaction of the legal department.
C. The action; of the city council, approving, modifying, or rejecting a
recommendation 4-�Of the hearing examiner, shall be final and conclusive.
Appellants have, ^ , twenty-one (21) calendar days from e€the date of city
council action,to fie an appeal is-filed-with the Ssu nor Ccourt.
Sec. 2.32.170. City administrative staff are to be considered a person or
party. For the purpose of KCC 2.32.140 and 2.32.150, the city's administrative staff
shall be considered a "person" and/or "party" and shall have the same rights as any
other person or party to make requests for reconsideration tole} the hearing examiner
or to appeal decisions of the hearing examiner to the eity eeuneilsUerior court or to
another designated!forum.
SECTION 2. Section 11.03.520 of the Kent City Code, entitled
"Appeals," is hereby amended to read as follows:
Sec. 11.03.$20. Appeals.
A. Administrative appeals. The city establishes the following administrative
appeal procedures finder RCW 43.21C.075 and WAC 197-11-680:
1. Procedural appeals.
a. Any party of record may appeal the city's procedural
compliance with Chapter 197-11 WAC for issuance of the following:
3 Permit Processing
(1) A final determination of nonsignificance: Appeal of the
DNS must be made to the hearing examiner within fourteen (14) calendar days of the
date the determination of nonsignificance is final. Notice of the issuance of a final
DNS shall be provided in accordance with KCC 11.03.410(A)(2). Except as provided
in a)(3) of this subsection the appeal shall be consolidated with anv hearing or appeal
of the underlying permit.
(2) A determination of significance: -The-aAppeal of the DS
must be made to the hearing examiner within fourteen (14) calendar days of the date
the determination of significance is issued. Notice of the issuance of a determination
of significance shall be provided in accordance with KCC 11.03.410(A)(2). Au appeal.
is not required to be consolidated with a hearing or appeal on the underlying permit.
(3) Agency action: An appeal is not required to be
consolidated with a hearing or appeal on the underlying permit if it is an appeal (i) of a
procedural determination made by the city when the cityis 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-, (ii) of a procedural determination made by an agency on a nouroiect
action• and (iii) to the city council under RCW 43.21C.060 or other applicable state
statute.
b. The decision of the land use hearing examiner shall be final,
pursuant to RCW 43.21C.075(3)(a). No right to appeal the decision of the hearing
examiner is granted by this section.
C. The procedural determination by the city's responsible official
shall carry substantial weight in any appeal proceeding.
2. Substantive appeals. Exe ept f. pefmits and vafianees _sued par-suan
There shall be no administrative
appeal when any proposal or action a deeisieft of the eity eeanei'_ is
conditioned or denied on the basis of State Environmental Policy Act by a nonelected
official_,
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pufsuanE to CCh.22.12 KC;G and Ch. 12.01 KGQ Appeals to the eity eetmeil'frofn the
3. No other appeal provided. Except as provided in subsections (A)(1)
and-(A)(2}-above, or as otherwise provided by law,no right to appeal is created by this
section. 1 7
B. Judicial appeals.
1. No eight to judicial review or appeal, which does not now exist, is
created by this chapter. The decision by the city to issue or deny nonexempt permits
or licenses shall $e final. As authorized in 43.21C.075(5), judicial review with
superior court^ wfit e f .e..;o.„ must be sought within fet )-twenty-one (21)
calendar days of �he issuance or denial of the permit or license, if at all, by an
aggrieved party or'person. RCW 43.21C.075(5). .
, issides O to t4is . ur w..
2. The;city shall give official notice under WAC 197-11-680(5) whenever
it issues a permit dr approval for which a statute or ordinance establishes a time limit
for commencing judicial review.
SECLT QN 3. Chapter 12.01 of the Kent City Code, entitled
"Administration of Development Regulations,"is hereby amended to read as follows:
CHAPTER 12.01 ADMINISTRATION OF DEVELOPMENT REGULATIONS
Sections:
12.01.010 Purpose and applicability.
12.01.020 Definitions.
12.01.030 Application processes and classification.
12.01.040 Project permit application framework.
12.01.050 Exgmptions from project permit application processing.
12.01.060 Joint public hearings.
12.01.070 Process VI legislative actions.
12.01.080 Pre+application conference.
12.01.090 Project permit applications.
12.01.100 Submission and acceptance of application.
5 Permit Processing
12 01.l 05 Application vesting.
12.01.110 Procedure for complete, but"incorrect applications".
12.01.120 Referral and review of project permit applications.
12.01.130 Public notice—Generally.
12.01.140 Notice of application.
12 01 145 Notice of public hearing.
12.01.150 Consistency with development regulations and SEPA.
12.01.155 Code of Conduct.
12.01.160 Open record hearings.
12.01.170 Notice of decision.
12.01.180 Time limitations.
12.01.190 Open record appea]Q ' " " ' "'"n4"'�_""'®'l.s-
a
12 01.195 Closed record appeal.
12.01.200 Judicial appeals.
Sec. 12.01.010. Purpose and applicability. The purpose of this chapter is to
establish a set of processes to be used for land use and development proposals subject
to review under the following portions of the Kent City Code:
A. Ch. 2.32 KCC, Office of Hearing Examiner;
B. Ch. 11.03 KCC, Environmental Policy;
C. Ch. 12.04 KCC, Subdivisions;-ate
D. Ch 14.01 KCC Building Codes; and
DE. KCC Title 15, Zoning.
Sec. 12.01.020. Definitions.
Unless the context clearly requires otherwise, the definitions in this section
apply throughout this chapter.
A. Closed record appeals are administrative appeals under Chapter 36.70B RCW
which are heard by the city council or hearing examiner, following an open record
hearing on a project permit application when the appeal is on the record with no or
limited new evidence or information allowed to be submitted and only appeal
arguments allowed.
B. Judicial appeals are appeals filed by a party of record in King County superior
court.
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1
C. Open recor4 hearing means a hearing held under Chapter 36.70B RCW and
conducted by the K.bnt hearing examiner who is authorized by the city to conduct such
hearings, that creatos the city's record through testimony and submission of evidence
and information, under procedures prescribed by the city by ordinance or resolution.
An open record heajring may be held prior to the city's decision on a project permit to
be known as an "open record pre-decision hearing." An open record hearing may be
held on an appeal, to be known as an "open record appeal hearing," if no open record
pre-decision hearing has been held on the project permit.
D. Parties of record means:
1. The p1pplicant;
2. The property tax payer as identified by the records available from the
King County assessor's office;
3. Any; person who testified at the open record public hearing on the
application and/or;
4. Anyi person who submitted written comments during administrative
review or has submitted written comments concerning the application at the open
record public hearing (excluding persons who have only signed petitions or
mechanically produced form letters).
E. Project per#tit means any land use or environmental permit or license required
from the city of Kent for a project action, including but not limited to building permits,
site development permits, land use preparation permits, subdivisions, binding site
plans, planned unitl developments, conditional uses, shoreline substantial development
permits, development plan review, site specific rezones authorized by the
comprehensive plan; but excluding adoption or amendment of the comprehensive plan
and development rIbgulations, zoning of newly annexed land, area-wide rezones, and
zoning map amendments except as otherwise specifically included in this subsection.
F. Planning director means the director of the planning department of the city of
Kent or his/her designee.
G. Public meeting means an informal meeting, hearing, workshop, or other public
gathering of persons to obtain comments from the public or other agencies on a
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i
proposed project permit prior to the city's decision. A public meeting may`include,
but is not limited to, a design review meeting, a special committee meeting, such as
the short subdivision committee, or a scoping meeting on a draft environmental impact
statement. A public meeting does not include an open record hearing. The
proceedings at a public meeting may be recorded and a report or recommendation may
be included in the city's project permit application file.
See. 12.01.030. Application processes and classification.
A. Application processes. Project permit applications for review pursuant to this
chapter shall be classified as a Process I, Process H, Process III, Process IV, or Process
V action. Process VI actions are legislative. Project permit applications and decisions
are categorized by type as set forth in KCC 12.01.040.
B. Determination of proper process type. The planning dinanager shall
determine the proper Process t)pespreeedafe for all applications. If there is a question
as to the appropriate Process type of pr-eeed ufe, the planning direeter-manager shall
• resolve it in favor of the higher Processpr-eeedure type number. Process I is the lowest
and Process VI is the highest.
C. Optional consolidated permit processing. An application that involves two (2)
or more Process typespeeedufes- may be treated eessed collectively under the
highest numbered Process typepre�eeldue required for any part of the application or
treatedpfeeessed individually under each Process typeef the eedufe identified by
the chapter. An applicant may ask that his or her application be treatedpfeeessed
collectively or individually. If the application is administeredpFeeessed under the
individual Processpreeedur-e option, the highest numbered pProcess procedure must be
finalized sled prior to the subsequent lower numbered Process being
finalizedpreeedtr-e. If the application is processed under the individual procedure
option there shall be no more than one (1) open record hearing and no more than one
(1) closed record appeal for all application Processes Open records hearing and
closed record appeals must be consolidated under the higher Process type number.
8 Permit Processing
D. Decision m�ker(s). Applications processed in accordance with subsection (C)
of this section which have the same highest numbered Process type�e but are
assigned different �earing bodies shall be heard collectively by the highest decision
maker(s). The city council is the highest, followed by the hearing examiner, and then
the short subdivision committee and the downtown design review committee. Joint
public hearings with other agencies shall be processed according to KCC 12.01.060,
Joint public hearin�s.
E. Environmental review. Process I, II, III, IV, and V permits which are subject
to environmental review under SEPA (Chapter 43.21C RCW) are subject to the
provisions of this, chapter. An environmental checklist shall be submitted in
conjunction with the submittal of a project permit application. One (1) environmental
threshold determination shall be made for all related project permit applications. The
city will not issue a threshold determination, other than a DS, prior to the submittal of
a complete project permit application and the expiration of the public comment period
fori-n the notice ofapplication pursuant to KCC 12.01.140, but may utilize the public
notice procedures �s outlined in KCC 11.03.410(A)(1)to consolidate public notice.
Sec. 12.01.040. Project permit application framework.
A. Process types. The following table lists the Process types; the corresponding
a!plications• and parenthetically, the corresponding final decision maker and appellate
body.
9 Permit Processhig
Process I Process II Process III Process IV Process V Process VI
Applications: }3evel ntentplar+ Administrative Conditional user Planned unit Final plat(3)(6) Zoning o newly
atad-iZoning design review(1) permit(4)U(7-) development 10 annexed ands
permit (6)() (10) ($)((6J(810)with (�6)($0
review(1)(6)D change of use
Performance Shoreline Signvanance Area-wide rezones
standards substantial (4)i?)(10 ci
8) y p l ent new
procedures(l) development typoli 'es(3)(6j
(6�7 permit(1)(7+(9) (810)
Sign pemilt(l) Accessory Special home Rezone H)(6) ComprelFsive plan
(6)(7) dwelling unit occupation permit (810) amendm is(3)(61
permit(1)(6)L7) (4)(5)(199) W08)
Lot line Administrative Variance(=H(5) Develop ent
adjustment(1) variance(1)((rl(7_) (�8) regulatio s(5)(�
(F>)L�1
Wig)
Administrat ve Downtown design Shoreline Zoning map
interpretation(1) review,all except conditional use amendm nts Ft)(G)
({ (7) for minor permit(4)ff)(7) (»)
remodels(2k3) (9)
(&X7)
Application Downtown design Shoreline variance Zoning t xt
conditional certifi- review,only minor (4)15)4g)(9� amendm nts (i
cation muli-farmly remodels(1) (Log)
tax exemption, WO
LL(?1 all other
multi-family tax
llevelgpnoentplan Multifamily Preliminary plat
review(planning design review(1) (4-)(5)(7)1S)
manager building (6)U7
official,or public
works director(7)
Administrative Bindingsiteplan
approval/WTF(1) 40)( 172(7)
7
Short subdivision Planned unit
(3iL)( 3(Zl development
(4)()(4) 10
without a change
of use
(1)Final decision made by planning direetermanager. Q6)Appeal to hearing examiner.
(2)Final decision by binding site plan committee (8+)Appeal to city council.
(32)Final decision made by downtown design review committee. (&}.'tippea14e-sa3eriereouft
(43)Final decision made by short subdivision committee. (9)Appeal to shoreline hearings board.
(54)Final decision made by hearing examiner. (}8)-Final deE si ttrby butt}ts g s to plan eemmitt
(6S)Final decision made by city council. 00)No administrative appeals.
10 Permit Processing
i
i
B. Process proce uresdedyieiis. The following_table lists the Process type and
the corresponding procedures.
Project PeI Applications(Processes I—V) Legislative
Process I Process II Process III Process IV Process V Process VI
Requires pre- Yes,for proje is Yes,for projects Yes,for projects Yes No No
application requiring SEPA requiring SEPA requiring SEPA
conference: review review review
i
Notice of Yes,for projects Yes,for projects Yes Yes No No
application: requiring SEPA requiring SEPA
review review,short plans
and shoreline sub-
substantial de-
velopment permits
Recommendation N/A N/A N/A Hearing examiner N/A Land use and
made by: planning board
Final decision Planning Planning Hearing examiner City council based City council City council
made by: direstarmma •'a -'�:nana2er, anon record made
buildin oftici I downtown design before hearing
or ublic«ors rev ew comet ttee, examiner
director as binding site plan
applicable I committee or short
subdivision com-
mittee,as noted in
KCC 12.01.140
rpen feeei-d Only if appeal dj n..,, if appealed, Ves-befa^re Yes..befefe Ne Yes,befefe
heaiing,Vepzn then bz€ore the»befbrelrear»g I eaFtnaexam nee hear r g-dxanr par and-pl:tnnirt Boar[}..
reeord appeal v to_,�. _a,,,.,,.1 to make [[take
beating: decision reeornntendation ition
Open record Yes,if appealed, Yes,if annealed, No No No No
appeal: then before then before hearing
hearing examiPer examiner
Open record No No Yes,before Yes,before No Yes,before land use
hearing: hearing examiner hearing examiner and planningboar
oard
to make final to make to make
decision recommendation recommendation to
to council city council,and
before ci council
Reconsideration: No No Yes,of hearing Yes,of hearing No No
examiner's examiner's
decision recommendation
Final Only if a eal f NeOnly if atmealed, Only if appealed, N "--�4)ef0rI Now N_
deeisienfeClosed denial of multi- then before the then before the eeuneti-fe rendeF `efefe-ei") eeamil eau d hold
record appeal: family I shortline hearings shoreline hearings final decision aeun e l-to
its GA%he iffg
conditional board if applicable board if applicable render-finel
certifcatz,then s W-C-oxne+k de w+
before the citW ex�ept sp=eeW
council Ne hoir&-oeeuNtion
Judicial appeal: Yes Yes Yes Yes Yes Yes
11 Permit Processing
Sec. 12.01.050. Exemptions from project permit application processing.
A. General exemptions. The following permits or approvals are specifically
excluded from the procedures set forth in this chapter:
1. Landmark designations;
2. Street vacations; and
3. Street use permits.
4. Pursuant to RCW 36.70B.140(62), boundary line adjustments, building
permits, and other construction permits, which are categorically exempt from
environmental review under SEPA or that do not require street improvements;
permits.
5. Administrative approvals which are categorically exempt from environmental
review under SEPA (Chapter 43.21C RCW) and the city's SEPA/environmental
policy ordinance, Ch. 11.03 KCC, or for which environmental review has been
completed in connection with other project permits.
See. 12.01.060. Joint public hearings.
A. Planning dii,eetermana 's decision to hold joint hearing. The planning
dir-eetermanager may combine any public hearing on a project permit application with
any hearing that may be held by another local, state, regional, federal, or other agency,
on the proposed action, as long as:
1. The other agency consents to the joint hearing;
2. The other agency is not expressly prohibited by statute from doing so;
3. Sufficient notice of the hearing is given to meet each of the agencies'
adopted notice requirements as set forth in statute, ordinance, or rule;
4. The agency has received the necessary information about the proposed
project from the applicant in enough time to hold its hearing at the same time as the
local government hearing; and
5. The hearing is held within the Kent city limits.
B. Applicant's request for a joint hearing. The applicant may request that the
public hearing on a permit application be combined as long as the joint hearing can be
12 Permit Processing
held within the tie periods set forth in this chapter. In the alternative, the'applicant
may agree to a particular schedule if additional time is needed in order to complete the
hearings.
Sec. 12.01.070. Process VI legislative actions.
A. Legislative actions. The following Process VI actions are legislative, and are
not subject to the procedures in this chapter, unless otherwise specified:
1. Zoning newly annexed lands;
2. Area-wide rezones and zoning map amendments to implement city
policies;
3. Coi$iprehensive plan amendments;
4. Development regulations and zoning text amendments; and
5. Oth,pr similar actions that are non-project related.
Sec. 12.01.080. Pre-application conference.
A. Applicability. The purpose of a pre-application conference is to provide city
staff with a sufficiont level of detail about a proposal so that the city staff can acquaint
the applicant ean �e ^^quaint"' with the requirements of the Kent City Code. Pre-
application conferences are required for Process 1, lI, III, and IV permits which require
environmental review. Only one (1) pre-application conference shall be required for
all project permit applications related to the same project. Pre-application conferences
shall precede the submittal of any project permit application, including an
a feet,.
environmental checklist. The plamung manager f-may waive in writing the
requirement for a pre-application conference for proposals that are determined not to
be of a size and, complexity to require the detailed analysis of a pre-application
conference.
B. Pre-application conference initiation. To initiate a pre-application conference,
an applicant shall;submit a completed form provided by the city and all information
pertaining to the proposal as prescribed by administrative procedures of the planning
department. Fail4re to provide all pertinent information may prevent the city from
13 Permit Processing
identifying all applicable issues or providing the most effective pre-application
conference.
C. Scheduling. A pre-application conference may be conducted at any point prior
to application for a project permit. A pre-application conference shall be scheduled by
the city within five (5) working days of a completed pre-application conference
request. The pre-application conference shall be held within thirty (30) calendar days
of the receipt of a completed request, unless the applicant agrees to an extension of
this time.period in writing.
D. At the conference the applicant may request the following information be
provided:
1. A form which lists the requirements of a complete project permit
application;
2. A general summary of the procedures to be used to process the
application;
3. The references to the relevant code provisions on development; and
4. The city's design guidelines.
E. It is impossible for the conference to be an exhaustive review of all potential
issues. The discussion at the conference or the form sent to the applicant under
12.01.080(D)(1) shall not bind or prohibit the city's future application or enforcement
of the applicable law.
Sec. 12.01.090. Project permit applications.
A. Required materials. Applications for all project permits shall be submitted
upon forms provided by the city.
See. 12.01.100. Submission and acceptance of application.
A. Determination of completeness. Within twenty-eight (28) calendar days after
receiving a project permit application for review for completeness, the city shall mail
or personally provide a written determination of completeness to the applicant, which
14 Permit Processing
i
to the extent known by the city, identifies other agencies with jurisdiction'over the
project permit application, and states either:
1. That!the application is complete; or
2. That,the application is incomplete and what is necessary to make the
application complete.
If the city does not provide a written determination to the applicant that the
application is incomplete, the application shall be deemed complete. The time period
guidelines for review of project permit applications begin following the determination
of a complete application.
B. Additional information for "complete applications." A determination of
completeness shall be made when an application is sufficient for continued processing
even though additional information may be required or project modifications may be
undertaken subsequently. The city's determination of completeness shall not preclude
the city from requesting additional information or studies either at the time of the
notice of completeness or at some later time, if new information is required or where
there are substantial changes in the proposal.
C. Procedure for "incomplete applications."
1. Prio$ to a determination of a complete application, if the applicant
receives a written determination from the city that an application is not complete, the
applicant shall have up to ninety (90) calendar days to submit the necessary
information to the i city. Within fourteen (14) calendar days after an applicant has
submitted the requested additional information, the city shall make the determination
of completeness as described in KCC 12.01.100(A) above, and notify the applicant in
the same manner.
2. If the applicant either refuses in writing to submit additional
information or does not submit the required information within the ninety (90)
calendar day period, the application shall lapse because of a lack of information
necessary to complete the review.
15 Permit Processing
D. Date of acceptance of application. When the project permit application is
determined to be complete, the planning direeterimana¢er shall accept it and note the
date of acceptance.
E. Project review. Following a determination that an application is complete, the
city shall begin project review.
Sec. 12.01.105. Application vesting. A project permit application shall vest
Won the submission of a fully completed project permit application as defined in
KCC 12 01 100 Vesting shall apply to land use regulations in effect on the land at the
time a fully completed project permit application has been accepted as complete
pursuant to 12.01.100(D).
Sec. 12.01.110. Procedure for complete, but"incorrect applications".
A. Following a determination of a complete application and the commencement
of project review, the city may make a determination in writing that some information
is incorrect, and that corrected information be submitted. The applicant shall have up
to ninety(90) calendar days to submit corrected information.
B. The city shall have fourteen (14) calendar days to review the submittal of
corrected information. If the corrected information is still not sufficient, the city shall
notify the applicant in writing that the submitted information is incorrect, and the time
period set forth in subsection (A) shall be repeated. This process may continue until
complete or corrected information is obtained.
C. If the applicant either refuses in writing to submit corrected information or
does not submit the corrected information within the ninety (90) calendar day period,
the application shall lapse.
D. If the requested corrected information is sufficient, the city shall continue with
project review, in accordance with the time calculations exclusions set forth in KCC
12.01.180.
16 Permit Processing
Sec. 12.01.120. Referral and review of project permit applications. Within
ten (10) calendak days of accepting a complete application, the planning
direetennanager shjall do the following:
A. Transmit a!copy of the application, or appropriate parts of the application, to
each affected agency and city department for review and comment, including those
responsible for determining compliance with state, federal and county requirements.
The affected agencies and city departments shall have fifteen (15) calendar days to
comment. The reforral agency or city department is presumed to have no comments if
comments are not received within the specified time - period. The planning
direetermanager shall grant an extension of time only if the application involves
unusual circumstances. Any extension shall only be for a maximum of three (3)
additional calendar days.
i
Sec.12.01.130. Public notice—Generally.
The availaljle records of the King County assessor's office shall be used for
determining the property taxpayer of record. Addresses for mailed notice shall be
obtained from the' county's real property tax records. All public notices shall be
deemed to have been provided or received on the date the notice is deposited in the
mail or personally delivered, whichever occurs first. Failure to provide the public
notice as described in this chapter shall not be grounds for invalidation of any permit
decision.
Sec. 12.01.140. Notice of application.
A. Notice of application. A notice of application shall be issued for Process I and
Process 11 permits requiring SEPA review, short plats, shoreline substantial
development pern:Vits, and all Process III and Process IV applications within fourteen
(14) calendar daysjafter the city has made a determination of completeness pursuant to
KCC 12.01.100(AG); provided, that if any open record hearing is required for the
requested project permit(s), the notice of application shall be provided at least fifteen
(15) calendar days',prior to the open record hearing. One (1) notice of application will
17 Permit Processing
be done for all permit applications related to the same project at the time of the earliest
complete permit application.
B. SEPA exempt projects. A notice of application shall not be required for project
permits that are categorically exempt under SEPA, unless a public comment period or
an open record pre-decision hearing is required.
C. Contents. The notice of application shall include:
1. The case file number(s), the date of application, the date of the
determination of completeness for the application and the date of the notice of
application;
2. A description of the proposed project action and a list of the project
permits included in the application and, if applicable, a list of any studies requested by
the review authority pursuant to RCW 36.70B.070;
3. The identification of other permits not included in the application, to
the extent known by the city;
4. The identification of existing environmental documents that evaluate
the proposed project, and, if not otherwise stated on the document providing notice of
application,the location where the application and any studies can be reviewed;
5. A statement of the limits of the public comment period, which shall be
not less than fourteen (14) nor more than thirty (30) calendar days following the date
of notice of application, and statements of the right of any person to comment on the
application, receive notice of and participate in any hearings, request a copy of the
decision once made, and any appeal rights;
6. The tentative date, time, place and type of hearing. The tentative
hearing date is to be set at the time of the date of notice of the application;
7. A statement of the preliminary determination of consistency, if one has
been made at the time of notice, and of those development regulations that will be
used for project mitigation and of consistency as provided in KCC 12.01.150;
8. The name of the applicant or applicant's representative and the name,
address and telephone number of a contact person for the applicant, if any;
18 Permit Processing
r
9. A description of the site, including current zoning and nearest road
intersections,reasonably sufficient to inform the reader of its location; and
10. Any!other information determined appropriate by the city, such as a
DS, if complete at' the time of issuance of the notice of application or the city's
statement of intent to issue a DNS pursuant to the optional DNS process set forth in
WAC 197-11-355.
D. Mailing of notice of application. The city shall mail a copy of the notice of
application to the fallowing:
1. Agencies with jurisdiction; and
2. Any, person who requests such notice in writing delivered to the
planning services office-
and Applicant.
E. Public comMent on the notice of application. All public comments received on
the notice of application must be received by the planning department by 4:30 p.m. on
the last day of the comment period. Comments may be mailed, personally delivered
or sent by facsimile{. Comments should be as specific as possible.
F. Posted notice of application. In addition to the mailed notice of application,
the city will o�stp ide notice of application at Kent City Hall, and in the register for
public review at the planning services department office. The applicant shall be
responsible for potting the property for site-specific proposals with notice boards
provided by the city. Public notice shall be accomplished through the use of a four(4)
by four (4) foot plywood face generic notice board to be issued by the planning
services office dement as follows: the applicant shall apply to the city for issuance
of the notice board, and shall pay to the a e& wi# he—planning services office
the amount of money on the fee schedule currently approved by the city
hundred a fifty a llafs ($15G�
council and available at the planning services office.�r=�=«-��e__��� �W-���•
geed eondition b
refunded to the apo heaot,
19 Permit Processing
i
i
1. Posting. Posting of the property for site-specific proposals shall consist
of one (1) or more notice boards as follows:
a. A single notice board shall be placed by the applicant in a
conspicuous location on a street frontage bordering the subject property.
b. Each notice board shall be visible and accessible for inspection
by members of the public.
C. Additional notice boards may be required when:
(1) The site does not abut a public road; or
(2) Additional public notice boards are required under other
provisions of the Kent City Code; or
(3) The planning managerdifeeteq_determines that additional
notice boards are necessary to provide adequate public notice.
d. Notice boards should be:
(1) Maintained in good condition by the applicant during
the notice period;
(2) In place at least fifteen (15) calendar days prior to the
end of any required comment period; and
(3) Removed by the applicant after expiration of the
applicable notice period. and retiamed te the city` iffi _ (7) Bale-du-" days '1'�-
e. Notice boards that are removed, stolen, or destroyed prior to the
end of the notice period may be cause for discontinuance of the departmental review
until the notice board is replaced and remains in place for the specified time period.
The city shall notify the applicant when it comes to their attention that notice boards
have been removed prematurely, stolen, or destroyed.
f. An affidavit of posting shall be submitted by the planning
direeetrnanager at least seven (7) calendar days prior to the hearing. If the affidavits
are not filed as required, any scheduled hearing or date by which the public may
comment on the application, may be postponed in order to allow compliance with this
notice requirement.
i20 Permit Processing
1
g. Notice boards shall be constructed and installed in accordance
with specifications determined by the planning diree4e-manaQer.
h. SEPA information shall be added by the city to the posted sign
within applicable !deadlines. An affidavit of posting shall be submitted by the
planning 44eetel--m a er.
G. Published notice of application. Published notice of application in an official
newspaper of genetal circulation in the area where the proposal is located is required
for Process I and ITpennits requiring SEPA review, short plats,and ill-Process III, IV,
and all PF eessV hermits, except subdivision final plat; applications. Published notice
shall include at least the following information:
1. Project location;
2. Project description;
3. Typo of permit(s)required;
4. Conpment period dates; and
5. Location where the complete application may be reviewed.
given
.
Th f th 1'
cl �. �
i
b. Desefiptiea— the affi��ed
, vA.eh
f 'tt a vieia"r leeatiefi 1 t 1. ,.:tte, des Nt' tt. th legal
or- a
deseriptier ,
e The date, tifne, ,t plaee f the hearing;
e. A t t + that all interested persons
rr
testi l an-Y,
fl. When and where klfeFmation may be exainined, and when
21 Permit Processing
nthmbar- 1,efe .7.7't' 1 infeffnatiefi may be obtained;
h. That a err,,, eF tlthe1; atie all de nts and v;,7e _
r�
ees
t d ill 1, :.7e.7 .,t the s of eduet;., ,.7
r t erg
} Tl, t a p . eF the staff repeh„gill he available f r ;n ti eeen .,t
r J�
ne t t least five !Cl 1 .7 days^ prior to the hearing and eepies will be „ r:,i e.7
J
at the eost eFr eduef:e„_
2. Aa 'e,4 netiee er19atblie hearing. Mailed aetiee of the publie hear;shall be provided by the eity as fellews:
a. 'mess 4 11 an '—V aefixms. r,e ..ubli, etieer-equir-
beeause 7
meetings
rrT
'thi t h ,7. 7 '(20 11 F t S efei:,,e permit natives sha l be i er.7.,«ee
rromcrr-vr -acaxaxoa , ovr xccc ycxox cxxxxc-pczxxxic
'tl the fequif eme«ts of W A C, 1 72.77 110.
b. Preeess W and JIB' aetieils The .,eti,.e of publi., hearing shall
be mailed
and
applieatietr
e. Aeeess !lzpr-e!kii iw!yj9 N aetiens. h addition to thegen
el
shall be provided as fellows;
1\ l: t' eF the filing of., eli.., n.,r„pla4 F ., e.,e.7
_ _____ __ ____ U�Vl U VIVVVVVQ
' - - V 1 / • a a
given
T •t t' l+ must, ...7 , .;tl,i fifteen (1 5) eele...7.,.•darn e f sl, .,.,et;
is22 Permit Processing
i
t
r2 c ..1 et:.. of the heafing shall be givei + !1'cv uu�ue�ient
i�
ewffers are the a F .,l ert. as shown h., the efe .-.1s of the King Ge ,+. .
rY�Y J, J
assessor-, leeated within three htmdfed (300) feet of an),poftien of the boundary of the
add .+th endpY{.IiSJ.
e1..
d Qp eess V�f aetions Weeess V! legislative actiens the eity
d.
a Posted t' f th-e 1 hl' is H -e,a r all P,.eeess M
mid Tl/ aetions. Thb posted t' f he shall
sigff J pest
b -Published t' f the r hl' h i C allWeeess-
ill and 13.1 pfee Pdd r-es shall be published newspaper- of
general eir-ettlationwithin the ;t, and .Main the following ,F a
(1) Pfejeet ioe ikon;
(4)Ce imefA per-ied dates3 and
Yeviewed-.
cr ,
AT t' h ll h 'I d + ,l .l first ...l.,hi:sh of less thaft
he }
23 Permit Processing
H1. Shoreline master program permits.
1. Notice of the application of a permit under the purview of the city's
shoreline master program shall be given in accordance with the requirements of Ch.
11.04 KCC, the Kent shoreline management master program.
Sec. 12.01.145. Notice of public hearing.
A Notice of public hearing for all types of applications. The notice given of a
public hearing required in this chapter shall contain:
1 The name of the applicant or the applicant's representative-
2 Description of the affected property, which may be in the form of either
a vicinity location sketch or written description, other than a legal description;
3 The date time and place of the hearing;
4 The nature of the proposed use or development;
5 A statement that all interested persons may ppear and provide
testimony
6 When and where information may be examined, and when and how
written comments addressingfindings Windings required for a decision by the hearing body may
be submitted;
7 The name of a city representative to contact and the telephone number
where additional information may be obtained;
8 That a copy of the application all documents and evidence relied upon
b the he applicant and applicable criteria are available for inspection at no cost and will
be provided at the cost of reproduction; and
9 That a copy of the staff report will be available for inspection at no cost
at least five (5) calendar days prior to the hearing and copies will be provided at the
cost provided for in the city's Public Record Disclosure Policy.
B. Mailed notice of public hearing. Mailed notice of the public hearing shall be
provided b the city as follows:
1 Process I II and V actions. No public notice is required because no
public hearing is held. Notice for short plat meetings is mailed to property owners
• 24 Permit Processing
i
within two hundrej (200) feet Shoreline permit notices shall be in accordance with
the requirements ofi WAC 173-27-110.
2 Process III and IV actions. The notice of public hearing shall be
mailed to:
(a) The applicant
(b) All owners of real property as shown by the records of the
county assessor's office within three hundred(300) feet of the subject property; and
(c) Any person who submits written comments, delivered to the
planning services offifices regarding the project permit.
3 Pro�e ss IV preliminary plat actions. In addition to the general notice
of public hearing requirements for Process IV actions above, additional notice shall be
provided as follow$:
(a) Notice of the filing of a preliminary plat of a proposed
subdivision locate adjacent to the right-of-way of a state highway or within two (2)
miles of the boundary of a state or municipal airport shall be given to the Secretary of
Transportation whp must respond within fifteen(15) calendar days of such notice.
(b) Special notice of the hearing shall be given to adjacent land
owners by any other reasonable method the city deems necessary. Adjacent land
owners are the owters of real propeerty, as shown by the records of the King County
assessor, located within three hundred (300) feet of any portion of the boundary of the
proposed subdivision If the owner of the real property which is proposed to be
subdivided owns 4nother parcel or parcels of real property which lie adjacent to the
real property_proppsed to be subdivided notice under RCW 58.17.090(1)(b) shall be
given to owners rof real property_located within three hundred (300) feet of such
adjacently owned parcels.
4 Pr ess VI actions For Process VI legislative actions, the city shall
publish notice as idescribed in subsection (M(3) of this section, and use all other
methods of notice 0 required by RCW 35A.12.160.
C. Procedure for posted or published notice ofpublic hearing.
25 Permit Processing
1 Posted notice of the public hearing is required for all Process III and IV
actions The posted notice of hearing shall be added to the sign already posted on the
property pursuant to subsection(F) of this section.
2 Published notice of the public hearingis s required for all Process III and
IV procedures The published notice shall be published in a newspaper of general
circulation within the city and contain the following information:
(a) Project location;
(b) Project description;
(c) Type of permit(s)required;
(d) Comment period dates; and
(e) Location where the complete application may be reviewed.
D. Time and cost of notice ofpublic hearing.
1 Notice shall be mailed posted and first published not less than ten (10)
calendar days prior to the hearing date Any posted notice shall be removed by the
gpplicant within seven(7) calendar days following the conclusion of public hearing(s).
Sec. 12.01.150. Consistency with development regulations and SEPA.
A. Purpose. When the city receives a project permit application, consistency
between the proposed project and the applicable regulations and comprehensive plan
should be determined through the process in this chapter and the city's adopted SEPA
ordinance, Ch. 11.03 KCC.
B. Consistency. During project permit application review, the city shall
determine whether the items listed in this section are defined in the development
regulations applicable to the proposed project. In the absence of applicable
development regulations, the city shall determine whether the items listed in this
section are defined in the city's adopted comprehensive plan. This determination of
consistency shall include the following:
1. The type of land use permitted at the site, including uses that may be
allowed under certain circumstances, if the criteria for their approval have been
satisfied;
26 Permit Processiag
2. The aevel of development, such as units per acre, density of residential
development in urb4n growth areas, or other measures of density;
3. Availability and adequacy of infrastructure, including public facilities
and services identified in the comprehensive plan, if the plan or development
regulations provide for funding of these facilities as required by Chapter 36.70A
RCW; and
4. Chatacteristics of the development, such as development standards.
5. In deciding whether a project is consistent, the determinations made
pursuant to KCC 11.01.150(B) shall be controlling.
6. Nothing in this section limits the city from asking more specific or
related questions in subsections (1)through(5) of this section.
C. Initial SEPA analysis. The city shall also review the project permit application
under the requirertients of the State Environmental Policy Act (SEPA), Chapter
43.21C RCW,the EPA Rules, Chapter 197-11 WAC, and Ch. 11.03 KCC.
1. This SEPA analysis shall:
a. Determine whether the applicable federal, state and local
regulations require studies that adequately analyze all of the project permit
application's specific probable adverse environmental impacts;
b. Determine if the applicable regulations require measures that
adequately addressisuch environmental impacts;
C. Determine whether additional studies are required and/or
whether the project permit application should be conditioned with additional
mitigation measures; and
d. I Provide prompt and coordinated review by government
agencies and the public on compliance with applicable environmental laws and plans,
including mitigation for specific project impacts that have not been considered and
addressed at the pl4n or development regulation level.
2. In its review of a project permit application,the city may determine that
the requirements for environmental analysis, protection and mitigation measures in the
applicable development regulations, comprehensive plan and/or in other applicable
27 Permit Processing
local, state or federal laws provide adequate analysis of and mitigation for the specific
adverse environmental impacts of the application.
3. A comprehensive plan, development regulation or other applicable
local, state or federal law provides adequate analysis of and mitigation for the specific
adverse environmental impacts of an application when:
a. The impacts have been avoided or otherwise mitigated; or
b. The city has designated as acceptable certain levels of service,
land use designations, development standards or other land use planning required or
allowed by Chapter 36.70A RCW.
4. The city's determination of consistency with the items identified in
KCC 12.01.150(B) shall not prohibit the city from denying, conditioning, or
mitigating impacts due to other aspects of the project.
5. In its decision whether a specific adverse environmental impact has
been addressed by an existing rule or law of another agency with jurisdiction with
environmental expertise with regard to a specific environmental impact, the city shall
consult orally or in writing with that agency and may expressly defer to that agency. In
making this deferral, the city shall base or condition its project approval on
compliance with these other existing rules or laws.
6. Nothing in this section limits the authority of the city in its review or
mitigation of a project to adopt or otherwise rely on environmental analyses and
requirements under other laws, as provided by Chapter 43.21C RCW.
7. The city shall also review the application under Ch. 11.03 KCC, the
city's environmental policy provisions.
D. Categorically exempt actions. Actions categorically exempt under RCW
43.21C.110(1)(a) do not require environmental review or the preparation of an
environmental impact statement. An action that is categorically exempt under the
rules adopted by the Department of Ecology (Chapter 197-11 WAC) may not be
conditioned or denied under SEPA.
28 Permit Processing
E. Planned actions. A planned action does not require a threshold determination
or the preparation df an environmental impact statement under SEPA, but is subject to
environmental review and mitigation under SEPA.
1. A"planned action"means one (1) or more types of project action that:
a. Are designated planned actions by an ordinance or resolution
adopted by the city;
b. Have had the significant impacts adequately addressed in an
environmental impact statement prepared in conjunction with:
(1) A comprehensive plan or subarea plan adopted under
Chapter 36.70A RCW; or
(2) A fully contained community, a master planned resort, a
master planned development or a phased project;
C. Are subsequent or implementing projects for the proposals
listed in KCC 12.0 150(E)(1)(b) above;
d. Are located within an urban growth area, as defined in RCW
36.70A.030;
e. Are not essential public facilities, as defined in RCW
36.70A.200;
f. Are consistent with the city's comprehensive plan adopted
under Chapter 36.10A RCW.
2. Thy city shall limit planned actions to certain types of development or
to specific geographical areas that are less extensive than the jurisdictional boundaries
of the city, and may limit a planned action to a time period identified in the
environmental impact statement or in the ordinance or resolution designating the
planned action under RCW 36.70A.040.
3. During project review, the city shall not reexamine alternatives or hear
appeals on the itlems identified in KCC 12.01.150(B) except for issues of code
interpretation, the process for which is outlined in KCC 15.09.060.
4. Project review shall be used to identify specific project design and
conditions relating to the character of development, such as the details of site plans,
29 Permit Processing
curb cuts, drainage swales, the payment of impact fees, or other measures to mitigate a
proposal's probable adverse environmental impacts.
Sec. 12.01.155. Code of Conduct.
A General The following shall ap_pltoopen record appeal hearings in KCC
12 01 160 open record appeals in KCC 12.01.190 and the closed record appeals in
12.01.195.
B. Conflict of interest The hearing body shall be subject to the code of ethics and
prohibitions on conflict of interest as set forth in RCW 35A.42.020 and Chapter 42.23
RCW as the same now exists or may hereafter be amended.
C. Ex parte communications.
1 No member of the hearing body may communicate, directly or
indirectly regarding any issue in a proceeding before him or her, other than to
participate in communications necessary to procedural aspects of maintaining an
orderly process unless he or she provides notice and opportunity for all parties to
participate; except as provided in this section:
• a The hearing body may receive advise from legal counsel-, or
b The hearing body may communicate with staff members
(except where the proceeding relates to a code enforcement investigation or
prosecution).
2 If before serving as the hearing body in a quasi-judicial proceeding,
any member of the hearing body receives an ex parte communication of a type that
could not properly be received while serving the member of the hearing body,
promptly after starting to serve shall disclose the communication as described in KCC
12.01.160(D)(3)below.
3 If the hearing body receives an ex parte communication in violation of
this section he or she shall place on the record:
a. All written communications received;
b. All written responses to the communications;
30 Permit Processing
i
c. The substance of all oral communications received and all
responses made: an
d The identity of each person from whom the hearing body
received any ex pane communication.
The hearing body shall advise.-all parties that these matters have been placed on
the record Upon etc nest made within ten (10) calendar days after notice of the ex
pane communicatign Mparty desiring to rebut the communication shall be allowed
to place a rebuttal statement on the record.
D. Disqualif tcglion.
1 AMember of the hearing body who is disqualified may be counted for
purposes of forming a quorum Any member who is disqualified may be counted only
by making full gisclosure to the audience abstaining from voting on the
disqualification y4cating the seat on the hearing body and physically leaving the
hearing.
2. If ajl members of the hearing body are disqualified, all members
present after stating their reasons for disqualification shall be re-qualified and shall
proceed to resolve he issues.
3 Excgpt for Process VI actions a member absent during the presentation
of evidence in a hh aring may not participate in the deliberations or decision unless the
member has revie) jed the evidence received.
Sec. 12.0660. Open record pub-lie hearings.
A. General. Open record hearings shall be conducted in accordance with this
section.
B. Responsibility of the planning manager direete for hearing. The planning
direetofmana er shall:
1. Schodule an application for review and public hearing;
2. Give notice (applicant responsible for some of the notice
requirements);
31 Permit Processing
3. Prepare the staff report on the application, which shall be' a single
. report stating all of the decisions made as of the date of the report, including
recommendations on project permits in the consolidated permit process that do not
require an open record pre-decision hearing. The report shall state any mitigation
required or proposed under the development regulations or the city's authority under
SEPA. If the threshold determination other than a determination of significance has
not been issued previously by the city, the report shall include or append this
determination. In the case of a Process I or II project permit application, this report
may be the permit; and
4. Prepare the notice of decision, if required by the hearing body, and/or
mail a copy of the notice of decision to those required by this code to receive such
decision.
G. t iet of intepest. The h body shall be s .1.' et to the eede of ethics an(t
rn�cai"arm wa.�� .,..j.". . .. ... .. .... »....
pFe
hib bens o nfliet of inte..est ., set f,-th in oCW -15A 42 020 and Chaptef 42.23
RGW, as the same new exists er-may her-eafter-be amended.
i. Ne meffibef of the Bearing body eate,, dir-eoayof
...7: etl. fdi ed before him e- he ..the than
+..
eanyissue �'� nxra vi iivr, v�..uvr uiun w
efder-ly process, unless he or- she pfevides fietiee and eppeAunity fer- all parties
a. The hearing he Eb,may re e e ad-vise from lega4 e sel- e
members
h. hear-if.b.. body may e ..to with st FF
v
(exeept NN-here the b
use*
2. if, befefe nb s the hearing hedyin a quasi ,,diesel eed'
b�
h F the h bed), _ .�*te niea't.on of'� ♦)Te 41.nt
�i�-iiicnivcrvrcncZxca�vaTrcc.".i:w ..... ..: 1".. .. .,.........,... .gyp.. ....»
eoul1 not—p.pefly be eeeived while ng the naher F the h ng 1.edy,
pr-em..tly after-staffing to s shell diselese the c e tie as .ieser-ibed in
1 n n1 1 6nmv3)below.
32 Permit Processing
TF tha h body b J r
this t' he of � o ..hall ,.1.. o tho_feeer�she
b. Ali vafiAefi responses to the e
6 The h tanee F ll or-a1 eoaffnunieMiens Feeeivedand—ill
resperses made; wo
d The identity F eaeh Yefsen r 1 the t - - bady
The hearing h .1J tt L,shall .1 all pai4ies thatthese been 1 a enthe Y-eeefd. Upon fequest made within ten (10) ealendaf days after- notiee of the eK
0
L.
t A no hef of the h body whois disqualified may be meted F
o
diq---1;9-A Ile eaunted only
, abstaining ffam b
f the seat en the b
e
all meffibefs
preeeed to r-eselveithe issues.
&fi,Ig the
fne- t- 1- reviewed the iden e fee wd.
CR Burden and nature of proof. Except for Process VI actions, the burden of
proof is on the pr�ponent. The project permit application must be supported by proof
that it conforms to the applicable elements of the city's development regulations,
comprehensive plqn and that any significant adverse environmental impacts have been
adequately addres$ed.
33 Permit Processing
DG. Order of proceedings. The order of proceedings for a hearing will depend in
. part on the nature of the hearing. The following shall be supplemented by
administrative procedures as appropriate.
1. Before receiving information on the issue, the following shall be
determined:
a. Any objections on jurisdictional grounds shall be noted on the
record and if there is objection, the hearing body has the discretion to proceed or
terminate; and
b. Any abstentions or disqualifications shall be determined.
2. The presiding officer may take official notice of known information
related to the issue, such as:
a. A provision of any ordinance, resolution, rule, officially
adopted development standard or state law; and
b. Other public records and facts judicially noticeable by law.
3. Matters officially noticed need not be established by evidence and may
be considered by the hearing body in its determination. Parties requesting that a
• matter be officially noticed shall do so on the record;however, the hearing body, on its
own accord, may take notice of matters listed in subsections (G)(1) and (G)(2) of this
section if stated for the record. Any matter given official notice may be rebutted.
4. The hearing body may view the area in dispute with or without
notification to the parties, but shall place the time, manner, and circumstances of such
view on the record.
5. Information shall be received from the staff and from proponents and
opponents. The presiding officer may approve or deny a request from a person
attending the hearing to ask a question. Unless the presiding officer specifies
otherwise, if the request to ask a question is approved, the presiding officer will direct
the question to the person submitting testimony.
6. When the presiding officer has closed the public hearing portion of the
hearing, the hearing body shall openly discuss the issue and may further question a
person submitting information or the staff if opportunity for rebuttal is provided.
is34 Permit Processing
7. When the hearing bodyexafiliaff is unable to formulate a
recommendation oii a project permit, the hearing bodye fixer may decide to forward
the project permit to the city council to render a decision without a recommendation.
ER. Recommendation/decision. The hearing body shall issue a recommendation or
decision, as applicabble,within fourteen(14) calendar days of the record being closed.
FT. Reconsideration by hearing examiner. Reconsideration is not authorized for
Process I and Process II applications. A party of record may ask for a reconsideration
of a decision by the hearing examiner for a Process III action or a recommendation by
the hearing examiner for a Process IV action. A reconsideration may be requested if
either:
1. A specific error of fact or law can be identified; or
2. New evidence is available which was not available at the time of the
hearing.
A request for reconsideration shall be filed by a party of record within five (5)
working days of the date of the initial decision/recommendation. Any reconsideration
request shall cite 4pecific references to the findings and/or criteria contained in the
ordinances governing the type of application being reviewed. A request for
reconsideration temporarily suspends the appeal deadline. The hearing examiner shall
promptly review the reconsideration request and within five (5) working days issue a
written response, dither approving or denying the request. If the reconsideration is
denied, the appeal jdeadline of the hearing examiner's decision shall recommence for
the remaining number of days. If a request for reconsideration is accepted, a decision
is not final until after a decision on reconsideration is issued.
Sec. 12.01J70. Notice of decision.
A. Following p decision one€ a project permit by the applicable decision-maker,
the city shall provide a notice of decision that also includes a statement of any
threshold determination made under SEPA(Chapter 43.21C RCW) and the procedures
for appeal.
35 Permit Processing
B. The notice of decision shall be issued within one hundred and twenty (120)
calendar days, as calculated by KCC 12.01.180, after the city notifies the applicant
that the application is complete. The 6iHe ffame^ set f fth i this seetie^ shall ply to
C. The notice of decision shall be provided to the applicant and to any person
who, prior to the rendering of the decision, requested notice of the decision or
submitted substantive comments on the application.
D. Notice of the decision shall be provided to the public as set forth in KCC
12.01.140(H)(2)(b)(1) and (3). Affected property owners may request a change in
valuation for property tax purposes. The city shall provide notice of the decision to
the county assessor's office in which the property is locate
E. Pursuant to RCW 36.70B.1.40 1 building ermit rantin ermits and civil
construction permits are exempt from the requirements ins ction (C.), except for
the applicant, and subsection (D.) above.
l;F. If the city is unable to issue its final decision on a project permit application
within the time limits provided for in this chapter, it shall provide written notice of this
• fact to the parties of record. The notice shall include a statement of reasons why the
time limits have not been met and an estimated date for issuance of the notice of
decision.
Sec. 12.01.180. Time limitations.
A. Calculation of time periods for issuance of notice of final decision. In
determining the number of calendar days that have elapsed after the city has notified
the applicant that the application is complete for purposes of calculating the one
hundred and twenty (120) daytime limit in KCC 12.01.070 for issuance of the notice
of decision,the following periods shall be excluded:
1. Any period during which the applicant has been requested by the city to
correct plans, perform required studies, provide additional required information, or
otherwise requires the applicant to act. The period shall be calculated from the date
the city notifies the applicant of the need for additional information until the earlier of
• 36 Permit Processing
the date the local government determines whether the additional information satisfies
the request for Wormation or fourteen (14) calendar days after the date the
information has be$n provided to the city;
2. Any period during which the city determines that the information
submitted by the applicant under KCC 12.01.100 and 12.01.110 is insufficient or
incorrect and has rqc uested the applicant to provide sufficient or correct information;
3. Any period during which an environmental impact statement is being
prepared following a determination of significance pursuant to Chapter 43.21C RCW,
if the city by ordinance has established time periods for completion of environmental
impact statements, or if the city and the applicant in writing agree to a time period for
completion of an e$ivirorunental impact statement;
4. Any period for administrative appeals of project permit applications, if
an open record appeal hearing or a closed record appeal, or both, are allowed. The
time period for consideration and decision on appeals shall not exceed:
a. Ninety(90) calendar days for an open record appeal hearing; or
b. Sixty(60) calendar days for a closed record appeal.
The parties+may agree to extend these time periods; and
5. Any extension of time mutually agreed upon by the applicant and the
local government.
B. Time limit exceptions. The time limits established in this section do not apply
if a project permit Opplication:
1. Requires an amendment to the comprehensive plan or a development
regulation;
2. Requires approval of the siting of an essential public facility as
provided in RCW P6.70A.200; or
3. Is substantially revised by the applicant, in which case the time period
shall start from the date at which the revised project application is determined to be
complete pursuant to KCC 12.01.100.
C. Failure to meet time limit. If the city is unable to issue its final decision within
the time limits provided in this chapter, it shall provide written notice of this fact to the
37 Permit Processing
project applicant. The notice shall include a statement of reasons why the time limits
• have not been met and an estimated date for issuance of a final decision. The city is
not liable for damages due to the city's failure to make a final decision within the time
limits established in this chapter.
Sec. 12.01.190. Open record appealClesed reeerd 'tear ngs ^"
A. . This section allows forffist,-ati-ve—open record
appeals as provided in the framework in KCC 12.01.040. " .rye Open record
appeals are heard by the hearing examiner., de ...teA% a^^;b r^ ^ ttee
B. Consolidated appeals.
1. All open record appeals on a of-project permit application decisions,
other than an appeal of determination of significance (DS), shall be considered
together in a consolidated open record appeal.
2. Appeals of environmental determinations under SEPA, Ch. 11.03 KCC,
including administrative appeals of a threshold determination shall proceed as
provided in that chapter.
C. Initiation of." '"' pis .' appear. Only parties of record may initiate an
adistfa�appeal on a project permit application.
D. Time to file. An appeal must be filed within fourteen (14) calendar days
following issuance of the notice of decision. Appeals must be delivered to the
planning department by mail, personal delivery or received by fax before 4:30 p.m. on
the last business day of the appeal period.
appeal, the administnAive appeal of the deeisien ,+.1 ofan, ^tnl
detefmination issued a! the same time as the pfejeet deeision shall be filed %4thi
twenty (21) ..1,.nda a^ afte the, ot:.. of de n h been ad _ .1 is
___ _ __________ _ _ ____ �IfLILLJ Vl Vll 111GilfV LL11LL LJ
appea4ablo-.
E. Computation of time. For the purposes of computing the time for filing an
appeal, the day the notice of decision is rendered shall not be included. The last day of
• 38 Permit Processing
the appeal period sljall be included unless it is a Saturday, Sunday, a day designated by
RCW 1.16.050 or py the city's ordinances as a legal holiday, then it also is excluded
and the filing must be completed on the next business day(RCW 35A.28.070).
F. Content of appeal. Appeals shall be in writing, be accompanied by an appeal
fee as set by the city council, and contain the following information:
1. Appellant's name, address and phone number;
2. Appellant's statement describing his or her standing to appeal;
3. Identification of the application which is the subject of the appeal;
4. Appellant's statement of grounds for appeal and the facts upon which
the appeal is based;'
5. The relief sought, including the specific nature and extent; and
6. A statement that the appellant has read the appeal and believes the
contents to be true,'followed by the appellant's signature.
G. Effect. The timely filing of an appeal shall stay the effective date of the
decision until such time as the appeal is adjudicated by the hearing examiner,
.
H. Notice of a4hnimisttw6ve appeal. Public notice of the appeal shall be given as
provided inKCC 1,,2.01.140(H)(2)(b)(1) and (3).
er�
be �' ♦ a The f i�g subsehaptef shall rr
ly te
rr
I
3 D;squali fieat�,
Sri
4 i nT T 60(t) n N * e rroi
(3) (4) and (6) n a a fn..eeeedings; and-
6. 12 01 170 AT tiee rDee
I Burden of Proof The burden of proof is on the appellant.
39 Permit Processing
• Sec. 12.01.195. Closed record appeal.
A This section shall allow for closed record appeals as provided in the framework
of KCC 12 01 040 A closed record appeal hearings shall be on the record before the
hearing body and no new evidence may be presented unless the new evidence is
limited to information that could not have been placed on the record previously.
B. Administrative appeals Only parties of record may initiate an administrative
appeal on a project permit application.
C. Time to file An appeal must be filed within fourteen (14) calendar days
following issuance of the notice of decision Appeals must be delivered to the
planning department by mail personal delivery or received by fax before 4:30 p.m. on
the last business day of the appeal period If an applicant initiates an administrative
appeal the administrative appeal of the project decision and of any environmental
detennination issued at the same time as the project decision shall be filed within
twenty-one (21) calendar days after the notice of decision has been made and is
appealable.
D. Computation of tirne For the pumoses of computing the time for filing an
appeal the day the notice of decision is rendered shall not be included. The last day of
the appeal period shall be included unless it is a Saturday Sunday, a day designated by
RCW 1 16 050 or by the city's ordinances as a legal holiday, then it also is excluded
and the filing must be completed on the next business day(RCW 35A.28.070).
E. Content of appeal Appeals shall be in writing be accompanied by an appeal
fee as set by the city council and contain the following infonnation:
1 Appellant's name address and phone number:
2 Appellant's statement describing his or her standing to appeal;
3 Identification of the application which is the subject of the appeal;
4 Appellant's statement of grounds for appeal and the facts upon which
the appeal is based;
5 The relief sought including the specific nature and extent; and
. 40 Permit Processing
6 A statement that the appellant has read the appeal and believes the
contents to be true,!followed by the appellant's signature.
F. Effect. Thy timely filing of an appeal shall stay the effective date of the
decision until such i ime as the appeal is adjudicated by the hearing examiner.
G. Order-ofPiLoceedin2s The closed weal shall only be oven for oral argument
by the parties to th¢ appeal.
II Burden o hoof The burden of proof is on the appellant.
Sec. 12.01.200. Judicial appeals.
A. Appeal. The city's final decision or appeal decision on a Process I, H, III, IV,
or V application mjay be appealed by a party of record with standing to file a land use
petition in King Cdunty superior court.
B. Petition peV iod. A land use petition must be filed within twenty-one (21)
calendar days of is of the notice of decision or appeal decision.
C. Filing and content of a land use petition. A land use petition shall be filed
according to the procedural standards outlined in Chapter 36.70C RCW, Judicial
Review of Land Use Decisions, also known as the"Land Use Petition Act".
SECTION 4. Section 14.01.020 of the Kent City Code, entitled
"Amendments to Uniform Building Code,"is hereby amended to read as follows:
Sec. 14.0110020. Amendments to Uniform Building Code. The following
amendments to the Uniform Building Code adopted in KCC 14.01.010 are hereby
adopted.
A. Building node appendices adopted. Divisions 1, 11, and IV of Chapter 3,
Chapter 15 and Chapter 33 of the Appendix of the Uniform Building Code, 1997
Edition (as adopted in KCC 14.01.010), are adopted, except that the director of public
works shall have the authority to enforce and interpret Chapter 33 of the Appendix of
the Uniform Building Code, 1997 Edition, and accordingly, all references to the
41 Permit Processing
"building official" in Chapter 33 of the Appendix shall be substituted with the words,
• "Director of Public Works"
B. Lot lines and setback lines. Notwithstanding the authority of the building
official to administer and enforce the building code, the building official shall have no
duty to verify or establish lot lines or setback lines. No such duty is created by this
chapter, and none shall be implied. The location of lot lines and/or setback lines at a
development and construction related thereto shall be the responsibility of the
applicant/owner.
C. Expiration o Proiect Permit Application.
1. Project permit applications that are not subject to Ch. 12.01 KCC and
that do not require SEPA review, shall expire by limitation if no permit
is issued within one hundred and eighty (180) dqys after the
determination that a fully complete project permit application, as
defined in KCC 14.11.020, has been submitted. Plans and other data
submitted for review may thereafter be returned to the applicant or
destroyed by the building official. The building official may extend the
time for action on the permit application for a period not exceeding one
hundred and eighty (180) days upon request by the applicant showing
that circumstances beyond the control of the applicant have prevented
action from being taken. An application shall not be extended more
than once. In order to renew action on an expired application, the
applicant shall resubmit plans and pay a new review fee.
2. Project permit applications subject to Ch. 12.01 KCC are not subject to
the expiration dates above. Said project permit applications shall be
subject to the deadlines in Ch. 12.01 KCC.
SECTION S. Chapter 14.11 of the Kent City Code, entitled"Vesting of
Development Permit Applications,"is hereby amended to read as follows:
• 42 Permit Processing
CH. 14.11. VESTING OF DEVELOPMENT PERMIT APPLICATIONS
Sec. 14.11.010. Vesting. Vesting of ru oject4evelopffient permit applications
occur upon the determination that a fully completed rp ojectdevelepment
permit application as defined in KCC 12.01.100 has been submitted. Vesting shall
only apply to land [use regulations in effect on the land at the time a fully completed
application has bean submitted. A rp ojectdeve1epffwfA permit application shall be
reviewed under the land use regulations in effect at that time. To establish a vested
right, the applicant shall file an application on a form furnished by the l rwcity
official, which form may be amended from time to time. Every application shall, at a
minimum, provide!the information required by the
for filing of pMiec permit applications " as other '' '"`""""'
as set forth in the application form and applicable
codes.
Sec. 14.11020. Completed application. In order to be accepted as fully
completed herein, an application for a develepnwnt-permit shall be reviewed by the
building official, or his/her designee, to verify that all information required has been
provided in a clear and usable format. Once it has been determined that all required
information has been provided, the building official, or his/her designee, shall accept
the filed applicatign and determine the date the application is considered complete and
therefore vested.
See. 14.11 a030. Other.
A. A completed developffwntproject permit application, as defined herein, does
not mean or imply approval of the project.
B. A completeed deve ent r�olect permit application herein may not necessarily
constitute a competed application for the purpose of processing the same. Additional
43 Permit Processing
A f
information, steps or procedures may need to be taken or completed in order to process
• and obtain the requested permit.
C. Vesting hereunder shall apply only to the scope of the project applied for under
the permit application.
D. Vesting under this chapter expires with the expiration of the
,rev rp oject permit application or with the expiration of a permit issued
pursuant to an application.
SECTION 6. —Severability. If any one or more section, subsections, or
sentences of this Ordinance are held to be unconstitutional or invalid, such decision
shall not affect the validity of the remaining portion of this ordinance and the same
shall remain in full force and effect.
SECTION 7. — Effective Date. This ordinance shall take effect and be
in force thirty(30) days from and after passage as provided by law.
JIM WHITE, MAYOR
ATTEST:
BRENDA JACOBER, CITY CLERK
APPROVED AS TO FORM:
ROGER LUBOVICH, CITY ATTORNEY
PASSED: day of , 2001.
• 44 Permit Processing
APPROVED: day of , 2001.
PUBLISHED: day of , 2001.
I hereby cedify that this is a true copy of Ordinance No. passed by
the City Council of the City of Kent, Washington, and approved by the Mayor of the
City of Kent as hereon indicated.
(SEAL)
BRENDA JACOBER, CITY CLERK
P.Liil`OrJimee`RmtiPameR-T.<kN CEu{u+oc
45 Permit Processing
• KENT
WASHINGTON
CITY OF KENT
PLANNING COMMITTEE
NOTICE OF MEETING
SEPTEMBER 10, 2001
NOTICE IS HEREBY GIVEN that the City of Kent Planning Committee will hold a
meeting to consider the following:
#ZCA 20013 PROPOSED REVISIONS TO KCC CHAPTERS:23411.03,12.01,14.01 AND 14.11
The Planning Committee will review and consider proposed Ordinance revisions relating to the
administration of development regulations by amending Chapter 12.01 of the Kent City Code,
and related portions of Chapters 2.32, 11.03, 14.01, and 14.11.
NOTICE IS FURTHER GIVEN that the City of Kent Planning Committee will hold
this meeting on Monday, September 10, 2001 in the City Council Chambers East, City Hall,
220 S. Fourth Avenue, Kent, WA 98032.
. There will be no public testimony at this meeting. However, the public is invited to attend.
For further information or a copy of the staff report or the text of the proposed amendment,
contact the Planning Services office at (253) 856-5454.
Any person requiring a disability accommodation should contact the City in advance for more
information. For TDD relay service for Braille, call 1-800-833-6385,for TDD relay service
for the hearing impaired, call 1-800-833-6388 or call the City of Kent Planning Services office
directly at(253) 856-5499 (TDD) or the mail line at(253) 856-5454.
Dated: September 4, 2001
Charlene Anderson, AICP, Acting Planning Manager
FOR PUBLICATION IN THE SOUTH COUNTY JOURNAL
RIDAY, SEPTEMBER 7, 2001
/pm S:IPermitlPlanOanning Committee1010910pcNtc.doc