Title 15
BUILDINGS AND CONSTRUCTION

Chapters:

15.04 Uniform Codes

15.08 Fire Code

15.10 Addresses

15.12 Environmental Policy

15.13 Impact Fees

15.14 Interim Regulations for Critical Drainage Area and Traffic Safety Problem Area

15.15 Regulations for Critical Areas

15.16 Requirements for Building and Land Use Permit Applications

15.17 Interim Regulations for Critical Drainage Area

15.18 School District Impact Fees

15.19 Repealed

Appendix A Impact Fees

Chapter 15.04
UNIFORM CODES

Sections:

15.04.010 Title.

15.04.020 Codes and standards designated – Adopted by reference.

15.04.030 Electrical standards and inspection – State responsibility.

15.04.040 Administration and enforcement of chapter provisions.

15.04.050 Uniform codes – Copies on file.

15.04.060 Mobile homes.

15.04.070 Factory-built housing.

15.04.075 Premises identification.

15.04.080 Violations – Penalty.

15.04.010 Title.

This chapter shall be known as the “building code of the city of Burlington.” (Ord. 969 § 1, 1981).

15.04.020 Codes and standards designated – Adopted by reference.

A. International Building Code, 2006 Edition, published by the International Code Council, together with all supplements thereto, mandated amendments and subject to modifications set forth by the state of Washington in chapter 51-50 WAC;

B. International Residential Code, 2006 Edition, published by the International Code Council, together with all supplements thereto, excluding Appendix F and subject to the modifications set forth by the state of Washington in chapter 51-51 WAC;

C. International Mechanical Code, 2006 Edition, published by the International Code Council, together with all supplements thereto, and subject to the modifications set forth by the state of Washington in chapter 51-52 WAC;

D. Uniform Plumbing Code, 2006 Edition, published by the International Association of Plumbing and Mechanical Officials, together with all supplements and amendments thereto, and subject to the modifications set forth by the state of Washington in chapters 51-56 and 51-57 WAC;

E. International Fuel Gas Code, 2006 Edition, published by the International Code Council, together with standards NFPA 58 and NFPA 54;

F. The Uniform Code for the Abatement of Dangerous Buildings, 1997 Edition, published by the International Conference of Building Officials;

G. The Washington State Energy Code, 2006 Edition, and Reference Standard 29 developed by the Washington State Building Code Council, and set forth in chapter 51-11 WAC;

H. The Washington State Ventilation and Indoor Air Quality Code, 2006 Edition, as set forth in chapter 51-13 WAC, effective July 1, 2007;

I. Installation of factory built housing and commercial structures, RCW 43.22.460 together with WAC 296-150C-0540, 296-150F-0540 and the installation of manufactured and mobile homes, RCW 43.22.440 and WAC 296-150M-0650. (Ord. 1625 § 1, 2007).

15.04.030 Electrical standards and inspection – State responsibility.

The city relinquishes to the state all responsibilities for electrical construction standards and electrical inspection, heretofore assumed by the city under the provisions of laws of the state, RCW 19.28.010 through 19.28.210. (Ord. 668 § 1, 1965).

15.04.040 Administration and enforcement of chapter provisions.

A. The building official as appointed by the mayor shall act as the building code administrator. The building code administrator shall administer and enforce the provisions of this chapter. The building code administrator shall establish a schedule of permit fees and shall use the most current edition of the Building Standards Magazine published by the International Conference of Building Officials to establish the valuation for new construction.

B. The building code administrator shall use all provisions as contained in Chapters 1 and 2 of the Uniform Administrative Code to effectively administer all technical codes adopted by this chapter. The city council and mayor shall, if necessary, designate such governmental subdivision, agency, firm, or individuals to assist in the administration, inspection and enforcement of the building codes. (Ord. 1211 § 3, 1992; Ord. 969 § 6, 1981).

15.04.050 Uniform codes – Copies on file.

At least one copy of the codes set forth in BMC 15.04.020 will be kept on file in the office of the city clerk-treasurer, and be available for public inspection during business hours. (Ord. 1040 § 2, 1984; Ord. 969 § 3, 1981).

15.04.060 Mobile homes.

Mobile homes conforming to ASA Standards, and bearing the seal of acceptance of the Mobile Home Manufacturers Association and the Trailer Coach Association, shall be permitted in those areas zoned for mobile homes in BMC Title 17, the zoning ordinances of the city. Those mobile homes meeting the criteria of this section shall be deemed to meet the building code requirements of this chapter. For the purposes of this chapter, a “mobile home” is defined as a dwelling unit, factory prefabricated, designed for being transported along the highway on its own wheels, and arriving at the site where it is to be occupied, complete and ready for occupancy except for assembly, furnishing, location upon foundation or supports and connection to utilities. (Ord. 969 § 4, 1981).

15.04.070 Factory-built housing.

Factory-built housing, defined as any structure designed primarily for residential occupancy by human beings, other than a mobile home, the structure or any room of which is either entirely or substantially prefabricated or assembled at a place other than a building site, if such structure bears an insignia of approval of the Washington State Department of Labor and Industries, shall be deemed to meet the provisions of the building code adopted in this chapter, for on-site as well as factory-built housing. (Ord. 969 § 5, 1981).

15.04.075 Premises identification.

Section 502, Premises Identification, of the Uniform Building Code is hereby amended to read as follows:

Approved numbers or addresses shall be provided for all new buildings in such a position as to be plainly visible and legible from the street or road fronting the property, and shall conform to the standards of Burlington Municipal Code Chapter 15.10.

(Ord. 1403 § 2, 1999).

15.04.080 Violations – Penalty.

A. It shall be unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy, or maintain any building or structure in the city, or cause the same to be done, in violation of any of the provisions of this chapter. The violation of the provisions of this chapter or failure to comply with any of its requirements constitutes a misdemeanor and such violation shall be punishable according to the provisions of BMC 1.24.020. Each day such violation continues shall be considered a separate offense.

B. The owner or tenant of any building, structure, premises, or part thereof, or any architect, builder, contractor, agent or other person who commits, participates in, assists in or maintains such violation may each be found guilty of a separate offense and suffer the penalties provided in this chapter.

C. Nothing contained in this chapter shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation. (Ord. 969 § 7, 1981).

Chapter 15.08
FIRE CODE

Sections:

15.08.010 International Fire Code adopted by reference.

15.08.020 Bureau of fire prevention established – Enforcement authority.

15.08.030 New materials, processes or occupancies which may require permits.

15.08.040 Storage of explosives and fireworks.

15.08.050 Storage of flammable/combustible liquids and liquefied petroleum gas.

15.08.060 Repealed.

15.08.070 Explosives and blasting agents – Vehicle transportation route establishment.

15.08.080 Hazardous materials – Vehicle transportation route establishment.

15.08.085 Premises identification.

15.08.090 Appeals.

15.08.100 Violation – Penalty.

15.08.110 Applicability.

15.08.010 International Fire Code adopted by reference.

The International Fire Code, 2006 Edition, published by the International Code Council, including Appendix Chapters B through G, mandated state amendments, local administrative rules and subject to modifications as set forth by the state of Washington in chapter 51-54 WAC, is adopted as the official fire code of the city of Burlington. (Ord. 1625 § 2, 2007; Ord. 1554 § 1, 2004).

15.08.020 Bureau of fire prevention established – Enforcement authority.

A. The fire code shall be enforced by the bureau of fire prevention in the fire department of the city which is established and which shall be operated under the supervision of the chief of the fire department.

B. The chief of the fire department may detail such members of the fire department as inspectors as shall be necessary. The chief of the fire department may deploy technical inspectors within the limits of the fire department’s annual budget appropriations.

C. A report of the bureau of fire prevention shall be made annually to the mayor and the report shall contain such information and recommendations as the chief of the fire department considers necessary to properly advise the city on matters concerning fire prevention. (Ord. 1293 § 2, 1995; Ord. 1039 § 2, 1984; Ord. 970 § 2, 1981).

15.08.030 New materials, processes or occupancies which may require permits.

The city supervisor, the chief of the fire department and the assistant fire chief shall act as a committee to determine and specify, after giving affected persons an opportunity to be heard, any new materials, processes or occupancies which shall require permits, in addition to those now enumerated in the code. The fire chief shall post such list in a conspicuous place in his office, and distribute copies thereof to interested persons. (Ord. 970 § 9, 1981).

15.08.040 Storage of explosives and fireworks.

The storage of explosives, fireworks and blasting agents is prohibited in all areas of the city except those areas designated M-1 on the Burlington zoning map and meeting the approval of the fire marshal. (Ord. 1554 § 2, 2004).

15.08.050 Storage of flammable/ combustible liquids and liquefied petroleum gas.

The bulk storage, as defined by the fire code, of flammable or combustible liquids and of liquefied petroleum gas in aboveground tanks is prohibited in all areas of the city except areas designated M-1 on the Burlington zoning map and meeting the approval of the fire marshal. (Ord. 1554 § 3, 2004).

15.08.060 Liquefied petroleum gas storage – District limit establishment.

Repealed by Ord. 1554. (Ord. 1039 § 5, 1984; Ord. 970 § 5, 1981).

15.08.070 Explosives and blasting agents – Vehicle transportation route establishment.

Vehicles transporting explosive materials shall be routed, where practicable, to avoid congested traffic and heavily populated areas. The fire chief is authorized to designate such routes of travel and the times of use. (Ord. 1296 § 3, 1995; Ord. 1039 § 6, 1984; Ord. 970 § 6, 1981).

15.08.080 Hazardous materials – Vehicle transportation route establishment.

Vehicles transporting hazardous materials shall be routed, where practicable, to avoid congested traffic and heavily populated areas. The fire chief is authorized to designate such routes of travel and the times of use. (Ord. 1296 § 4, 1995; Ord. 1039 § 7, 1984; Ord. 970 § 7, 1981).

15.08.085 Premises identification.

Section 505, Premises Identification, of the International Fire Code is hereby amended to read as follows:

Approved numbers or addresses shall be provided for all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property and shall conform to the standards of Burlington Municipal Code Chapter 15.10.

(Ord. 1554 § 5, 2004).

15.08.090 Appeals.

Whenever the chief of the bureau of fire prevention disapproves an application or refuses to grant a permit applied for, or when it is claimed that the provisions of the code do not apply or that the true intent and meaning of the code has been misconstrued or wrongly interpreted, the applicant may appeal from the decision of the chief of the bureau of fire prevention to the city council within 30 days from the date of the decision appealed. The applicant aggrieved by the decision of the city council shall appeal same to the Superior Court of Skagit County within 10 days of the date of the decision. (Ord. 970 § 8, 1981).

15.08.100 Violation – Penalty.

It is unlawful for any person, firm or corporation to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or structure in the city, or cause the same to be done, or to transport or store any material or substance, contrary to or in violation of any of the provisions of this chapter. Any person, firm or corporation violating any of the provisions of this chapter is guilty of a separate offense for each and every day or portion thereof during which any violation of any of the provisions of this chapter is committed, continued or permitted, and upon conviction of any such violation, such person shall be punishable by a fine of not more than $500.00 or by imprisonment for not more than six months, or by both such fine and imprisonment. (Ord. 970 § 10, 1981).

15.08.110 Applicability.

It is not the purpose of this chapter to create any special class of citizens to be benefited by the adoption of the ordinance codified in this chapter. (Ord. 1554 § 6, 2004).

Chapter 15.10
ADDRESSES

Sections:

15.10.010 Purpose.

15.10.020 Definitions.

15.10.030 Planning department to assign address numbers.

15.10.040 Numbering system prescribed.

15.10.050 Way-of-travel names.

15.10.060 Building owner to post and maintain address signs.

15.10.070 Enforcement.

15.10.010 Purpose.

The purpose of this chapter is to establish a uniform methodology for assigning way-of-travel names and building address numbers under the administration of the planning and community development department permit center, and to establish the authority to retroactively remedy incorrect addresses, and improve signage for existing building and premises identification. (Ord. 1403 § 4, 1999).

15.10.020 Definitions.

The following words or phrases, whenever used in this chapter, shall have the following meanings, unless, where used, the context clearly indicates to the contrary:

“Alley” means a public or private way-of-travel 16 feet or less in width not designated or improved for general travel and used as a secondary means of access to the rear of residential, business or other property.

“Avenue” means a way-of-travel which runs generally east and west.

“Boulevard” means a way-of-travel that extends north and south through the commercial and industrial district.

“Court” means a way-of-travel under two grid blocks long.

“Department” means the department of planning and community development for the city.

“Designate” means to name a way-of-travel whether by name or number.

“Drive” means a way-of-travel.

“Lane” means a way-of-travel one block long.

“Place” means a way-of-travel.

“Road” means a way-of-travel which heretofore has been designated a road.

“Street” means a way-of-travel which generally runs north and south.

“Way” means a way-of-travel.

“Way-of-travel” means a roadway of whatever sort, including but not limited to, avenues, boulevards, courts, drives, lanes, loops, places, tracts and ways, which is capable of carrying vehicular traffic. (Ord. 1403 § 4, 1999).

15.10.030 Planning department to assign address numbers.

The department shall determine the address of any property in the city in accordance with the numbering system established in this chapter.

Whenever the irregularity of plats, the changing direction of streets, avenues, or other highways, the interruption of the continuity of highways or any other condition causes doubt or difference of opinion as to the correct number of any piece or property or any building thereon, the number shall be determined by the department. The department shall be guided by the specific provisions of this chapter as far as they are applicable, and on the recommendations of the fire and police departments. (Ord. 1403 § 4, 1999).

15.10.040 Numbering system prescribed.

A. The numerical designation of all doorways and entrances to buildings, lots, yards and grounds fronting upon the several ways, avenues, streets, drives and places of the city are established in accordance with the following system:

1. Except where otherwise specified, 100 numbers are allotted to each block in accordance with Exhibit A, the city of Burlington addressing grid map, to be spaced evenly along the grid with 50 numbers on each side of the street or way in each grid line. The grid has been adjusted in areas of the city where the blocks differ in length. Even numbers shall be used on the southerly side of avenues or ways extending in an easterly and westerly direction

and on the easterly side of streets or ways extending in a northerly and southerly direction; odd numbers shall be used on the northerly side of avenues or ways extending in an easterly and westerly direction and on the westerly side of streets or ways extending in a northerly and southerly direction.

2. In the case of irregular drives, places, streets, ways or avenues, the frontages shall be numbered as near as may be possible, according to the uniform series of block numbers with which they most nearly correspond.

B. For new buildings, a site plan showing the footprint of the building, all front door entrances, location and name of adjoining street or way and a north arrow is required. The number for new buildings is assigned according to this section as follows:

1. If the project is multifamily with multiple entrances, each building receives an address and numbering is assigned for that building with the first floor having the 100 series, the second floor 200 series, the third floor 300 series.

2. A single entrance for a multiple tenant building receives one common number, with each tenant receiving a separate suite number. Separate entrance doors receive a separate address.

New addresses are added to the address data base, mapped and copies distributed to emergency service agencies, utilities, the post office and city departments. (Ord. 1403 § 4, 1999).

15.10.050 Way-of-travel names.

A. The department shall designate all public or private ways-of-travel, now existing or hereafter created; provided, that a name shall be designated that is different than any existing way-of-travel name currently in the address system and that will not be easily confused with an existing name.

B. The baseline for ways-of-travel shall be Fairhaven Avenue and shall bear the suffix “E” (east) on the east side of Burlington Boulevard and the suffix “W” (west) on the west side of Burlington Boulevard.

C. The meridian line for ways-of-travel, running generally north-south shall be Burlington Boulevard and shall bear the suffix “N” (north) on the north side of Fairhaven Avenue and the suffix “S” (south) on the south side of Fairhaven Avenue. (Ord. 1403 § 4, 1999).

15.10.060 Building owner to post and maintain address signs.

The owner of any building or other structure shall maintain the street number of each building and structure in a conspicuous place over or near the principal street entrance, or in another conspicuous places so that the address may be easily seen from the street.

It shall be the responsibility of the owner of any new building to obtain and post an approved sign as required by this chapter. It shall be the responsibility of the city to provide an approved sign for existing buildings on a one-time basis. The owner of an existing building shall be responsible to post it as provided in this chapter.

EXCEPTION: Where there are multiple buildings on a site, the department may waive the requirement for posting an address on appurtenant or accessory buildings where individual identification of each building is not essential. Where a property has frontage along more than one named street or for any other property where there may be confusion regarding the address of a building or structure, the department may require the complete address, including street number and street name to be conspicuously posted.

Numbers and letters shall be of approved reflective material that is easily legible and shall have a high contrast with the background color. Letters and numbers shall be white reflective material and shall not be less than five inches (76 mm) in height. The sign background shall be blue reflective material. The department shall maintain a list of vendors approved to make address signs. (Ord. 1403 § 4, 1999).

15.10.070 Enforcement.

Should the department find that any building, structure or premises is not provided with numbers as herein required, or is not correctly numbered, the department shall notify the owner, agent or tenant of the correct street number and shall require that the same shall be properly placed, in accordance with the provisions of this chapter, within a reasonable length of time. It shall be a civil infraction for any person to fail to comply with such notice and such violation shall be punishable by a monetary penalty of $20.00. Each day such violation continues shall be considered a separate offense.

Buildings served by a private road or a common driveway shall post their address number(s) at the head of the road or driveway in a manner that can be easily read from the intersecting street. This posting requirement shall be in addition to the requirement to post the number on the building itself. Where the existing street grid may not adequately allow for the assignment of street addresses which will promote the easy locating of such addresses, or for any other reason consistent with the intent of this chapter, the department may assign a name to the private road or common driveway which shall be used for addressing purposes. The department shall assign a name to the private road or common driveway when there are four or more parcels served by it. In addition, one or more property owners along the road or driveway may be required to post a sign displaying the assigned name at a location near the intersection of the road or driveway with a named public street. (Ord. 1403 § 4, 1999).

Chapter 15.12
ENVIRONMENTAL POLICY

Sections:

Article I. Relationship to the Growth Management Act and Authority

15.12.010 Relationship to the Growth Management Act.

15.12.015 Authority.

Article II. General Requirements

15.12.020 Purpose of this part and adoption by reference.

15.12.030 Additional definitions.

15.12.040 Designation of responsible official.

15.12.050 Lead agency determination and responsibilities.

15.12.053 Repealed.

15.12.055 Additional consideration in time limits applicable to the SEPA process.

Article III. Categorical Exemptions and Threshold Determinations

15.12.065 Purpose of this part and adoption by reference.

15.12.070 Flexible thresholds for categorical exemptions.

15.12.080 Use of exemptions.

15.12.090 Environmental checklist.

15.12.100 Mitigated DNS.

Article IV. Environmental Impact
Statement (EIS)

15.12.110 Purpose of this part and adoption by reference.

15.12.120 Preparation of EIS – Additional considerations.

15.12.125 Additional elements to be covered in an EIS.

Article V. Commenting

15.12.128 Adoption by reference.

15.12.130 Public notice.

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

Article VI. Using Existing
Environmental Documents

15.12.150 Purpose of this part and adoption by reference.

Article VII. SEPA and Agency Decisions

15.12.155 Purpose of this part and adoption by reference.

15.12.160 Substantive authority.

15.12.170 Appeals.

15.12.171 Planned action.

15.12.173 Notice/statute of limitations.

Article VIII. Definitions

15.12.175 Purpose of this part and adoption by reference.

Article IX. Agency Compliance

15.12.185 Purpose of this part and adoption by reference.

Article X. Forms

15.12.205 Adoption by reference.

Article I. Relationship to the Growth Management Act and Authority

15.12.010 Relationship to the Growth Management Act.

A. Comprehensive plans and development regulations adopted by the city under chapter 36.70A RCW and environmental laws and rules adopted by the state and federal government have addressed a wide range of environmental subjects and impacts. These plans, regulations, rules and laws often provide environmental analysis and mitigation measures for project actions without the need for an environmental impact statement or further project mitigation.

B. Existing plans, regulations, rules or laws provide environmental analysis and measures that avoid or otherwise mitigate the probable specific adverse environmental impacts of proposed projects should be integrated with, and should not be duplicated by, environmental review under chapter 43.21C RCW and this code.

C. Proposed projects should continue to receive environmental review, which should be conducted in a manner that is integrated with and does not duplicate other requirements. Project-level environmental review should be used to: (1) review and document consistency with comprehensive plans and development regulations; (2) 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 plan or development regulation level; and (3) ensure accountability by local government to applicants and the public for requiring and implementing mitigation measure.

D. When a project permit application is filed, the responsible official should analyze the proposal’s environmental impacts, as required by applicable regulations and the environmental review process required by this chapter, in one project review process. The review process is specified in chapter 17.68 BMC. The project review process includes land use, environmental, public, and governmental review, as provided by the applicable regulations and the rules adopted under this chapter, so that documents prepared under different requirements can be reviewed together by the public and other agencies. This project review will provide the city with the information necessary to make a decision on the proposed project.

E. Through this project review process: (1) if the applicable regulations require studies that adequately analyze all of the project’s specific probable adverse environmental impacts, additional studies under this chapter will not be necessary on those impacts; (2) if the applicable regulations require measures that adequately address such environmental impacts, additional measures would likewise not be required under this chapter; and (3) if the applicable regulations do not adequately analyze or address a proposal’s specific probable adverse environmental impacts, this chapter provides the authority and procedures for additional review.

F. A primary role of environmental review is to focus on the gaps and overlaps that may exist in applicable laws and requirements related to a proposed action. Environmental review is integrated with project review in chapter 17.68 BMC. The State Environmental Policy Act review is not a substitute for other land use planning and environmental requirements.

G. If the requirements of subsection H in this section are satisfied, the responsible official reviewing a project action may determine that the requirements for environmental analysis, protection, and mitigation measures in the city’s development regulations and comprehensive plans adopted under the Growth Management Act, and in other applicable local, state or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply.

H. The responsible official may make the determination provided for in subsection G above if:

1. In the course of project review, including any required environmental analysis, the responsible official considers the specific probably adverse environmental impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements of the comprehensive plan or other local, state, or federal rules or laws; and

2. The responsible official bases or conditions its approval on compliance with these requirements or mitigation measures.

I. If the city’s comprehensive plans and development regulations adequately address a project’s probable specific adverse environmental impacts, as determined under subsections A and B of this section, the city shall not impose additional mitigation under this chapter during project review. Project review shall be integrated with environmental analysis under this chapter, as further provided in chapter 17.68 BMC.

J. A comprehensive plan or development regulation shall be considered to adequately address an impact if the city, through the planning and environmental review process under the Growth Management Act and this chapter, has identified the specific adverse environmental impacts and:

1. The impacts have been avoided or otherwise mitigated; or

2. The city council has designated as acceptable certain levels of service, land use designations, development standard other land use planning required or allowed by the Growth Management Act.

K. In deciding 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.

L. Nothing in this section limits the authority of an agency in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by this chapter. (Ord. 1309 § 1, 1995).

15.12.015 Authority.

A. The city adopts the ordinance codified in this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA rules, WAC 197-11-904.

B. This chapter contains the city’s SEPA procedures and policies.

C. The SEPA rules, chapter 197- 11 WAC, must be used in conjunction with this chapter. (Ord. 1309 § 1, 1995).

Article II. General Requirements

15.12.020 Purpose of this part and adoption by reference.

This part contains the basic requirements that apply to the SEPA process. This city adopts the following sections of chapter 197-11 WAC by reference:

WAC

197-11-040 Definitions.

197-11-050 Lead agency.

197-11-060 Content of environmental review.

197-11-070 Limitations on actions during SEPA process.

197-11-080 Incomplete or unavailable information.

197-11-090 Supporting documents.

197-11-100 Information required of applicants.

197-11-158 GMA project review – Reliance on existing plans, laws, and regulations.

197-11-210 SEPA/GMA integration.

197-11-220 SEPA/GMA definitions.

197-11-228 Overall SEPA/GMA integration procedures.

197-11-230 Timing of an integrated SEPA/GMA process.

197-11-232 SEPA/GMA integration procedures for preliminary planning, environmental analysis, and expanded scoping.

197-11-235 Documents.

197-11-238 Monitoring.

197-11-250 SEPA/Model Toxics Control Act integration.

197-11-253 SEPA lead agency for MTCA actions

197-11-256 Preliminary evaluation.

197-11-259 Determination of nonsignificance for MTCA remedial actions.

197-11-262 Determination of significance and EIS for MTCA remedial actions.

197-11-265 Early scoping for MTCA actions.

197-11-268 MTCA interim actions.

(Ord. 1397 § 1, 1999; Ord. 1309 § 1, 1995).

15.12.030 Additional definitions.

In addition to those definitions contained within WAC 197-11-700 through 197-11-799 and 197-11-220, when used in this chapter, the following terms shall have the following meanings, unless the context indicates otherwise:

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

B. “Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures).

C. “City department” means any division, subdivision or organizational unit of the city established by ordinance, rule or order. (Ord. 1397 § 2, 1999; Ord. 1309 § 1, 1995).

15.12.040 Designation of responsible official.

A. For those proposals for which the city is the lead agency, the responsible official shall be the director of planning and community development or any other such person as the director may designate in writing.

B. For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules that were adopted by reference in BMC 15.12.020.

C. The city shall retain all documents required by the SEPA rules (chapter 197-11 WAC) and make them available in accordance with chapter 42.17 RCW. (Ord. 1309 § 1, 1995).

15.12.050 Lead agency determination and responsibilities.

A. If the city receives an application for or initiates a proposal that involves a nonexempt action, the city shall determine the lead agency for that proposal under WAC 197-11-050, 197-11-253, and 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the city is aware that another agency is in the process of determining the lead agency.

B. When the city is not the lead agency for a proposal, the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. The city shall not prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the city may conduct supplemental environmental review under WAC 197-11-600.

C. If the city receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-253 or 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the city may be initiated by the responsible official.

D. The city is authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, that the responsible official and any city department that will incur responsibilities as the result of such agreement approve the agreement.

E. The city, in making a lead agency determination for a private project, shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is: which agencies require nonexempt licenses?).

F. When the city/county is lead agency for a MTCA remedial action, the Department of Ecology shall be provided with an opportunity under WAC 197-11-253(5) to review the environmental documents prior to public notice being provided. If the SEPA and MTCA documents are issued together with one public comment period under WAC 197-11-253(6). the city/county shall decide jointly with Ecology who receives the comment letters and how copies of the comment letters will be distributed to the other agency. (Ord. 1397 § 3, 1999; Ord. 1309 § 1, 1995).

15.12.053 Transfer of lead agency status to a state agency.

Repealed by Ord. 1397. (Ord. 1309 § 1, 1995).

15.12.055 Additional consideration in time limits applicable to the SEPA process.

Time estimates contained in this section (expressed in calendar days) shall apply when the city processes licenses for all private projects and those governmental proposals submitted to the city by other agencies. The actual time may vary with the complexity of the project, availability of staff, cooperation of agencies with jurisdiction or expertise, etc. The time estimates contained herein shall not be construed to be mandatory. Time periods for making threshold determinations shall commence upon payment of fees.

A. Categorical Exemptions. The city will normally identify whether an action is categorically exempt within seven days of receiving a completed application.

B. Threshold Determinations.

1. The city will normally complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within 15 days of the date an applicant’s completed application and completed checklist are submitted.

2. When the responsible official requires further information from the applicant or consultation with other agencies with jurisdictions:

a. The city will normally request such further information within 15 days of receiving a completed application and completed environmental checklist;

b. The city will normally wait no longer than 30 days for a consulted agency to respond;

c. The responsible official will normally complete the threshold determination within 15 days of receiving the requested information from the applicant or the consulted agency.

3. When the city must initiate further studies, including field investigations, to obtain the information to make the threshold determination, the city will normally complete the studies within 30 days of receiving a completed application and a completed checklist.

4. The city will normally complete threshold determinations on actions where the applicant recommends in writing that an EIS be prepared, because of the probable significant adverse environmental impact(s) described in the application, within 15 days of receiving a completed application and completed checklist. (Ord. 1309 § 1, 1995).

Article III. Categorical Exemptions and Threshold Determinations

15.12.065 Purpose of this part and adoption by reference.

This part contains the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This part also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections by reference, as supplemented in this part:

WAC

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination required.

197-11-315 Environmental checklist.

197-11-330 Threshold determination process.

197-11-335 Additional information.

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

197-11-350 Mitigated DNS.

197-11-355 Optional DNS process.

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

197-11-390 Effect of threshold determination.

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 1397 § 5, 1999; Ord. 1309 § 1, 1995).

15.12.070 Flexible thresholds for categorical exemptions.

A. Categorical exemptions are adopted by reference under BMC 15.12.180. The city establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(b) based on local conditions:

1. For residential dwelling units in WAC 197-11-800(1)(b)(i): nine units;

2. For agriculture structures in WAC 197-11-800(1)(b)(ii): 10,000 square feet;

3. For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii): 4,000 square feet and 20 parking spaces;

4. For parking lots in WAC 197-11-800(1)(b)(iv): 20 parking spaces;

5. For landfills and excavations in WAC 197-11-800(1)(b)(v): 500 cubic yards;

6. Demolition of any structure or facility up to the maximum exempt level provided in WAC 197-11-800;

7. Replacement, addition of up to 20 percent of gross floor area, alteration or modification of an existing commercial structure, up to 12,000 square feet.

B. The city shall send the new exempt levels established under this section to the Department of Ecology, Headquarters Office, Olympia, Washington, 98504, under WAC 197-11-800(1)(c). (Ord. 1504 § 1, 2002; Ord. 1404 § 1, 1999; Ord. 1309 § 1, 1995).

15.12.080 Use of exemptions.

A. Upon receiving an application for a license or, in the case of governmental proposals, initiating the proposal, the city shall determine whether the license and/or the proposal is exempt. The city’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter shall apply to the proposal.

B. In determining whether or not a proposal is exempt, the city shall make certain the proposal is properly defined and shall identify the governmental licenses required. (WAC 197-11-060) If a proposal includes exempt and nonexempt actions, the city shall determine the lead agency, even if the license application that triggers the city’s consideration is exempt.

C. If a proposal includes both exempt and nonexempt actions, the city may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

1. The city shall not give authorization for:

a. Any nonexempt action;

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

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

2. The city may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved.

D. Proposed short subdivision of land that is adjacent to previous short subdivisions or adjacent to land on which a subdivision is pending shall not be exempt if adjacent subdivisions share any improvements or access easements. In such cases, the proposed short plat will be considered physically or functionally related regardless of ownership. (Ord. 1309 § 1, 1995).

15.12.090 Environmental checklist.

A. Except as provided in subsection C of this section, a completed environmental checklist (or a copy), in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in this chapter; provided, that a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The city shall use the environmental checklist to determine the lead agency.

B. For private proposals, the city will require the applicant to complete the environmental checklist, providing assistance as necessary. For city proposals, the applicant shall complete the environmental checklist for that proposal.

C. For projects submitted as planned actions under WAC 197-11-164, the city shall use its existing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. The modified environmental checklist form may be prepared and adopted along with or as part of a planned action ordinance; or developed after the ordinance is adopted. In either case, a proposed modified environmental checklist form must be sent to the Department of Ecology to allow at least a 30-day review prior to use. (Ord. 1397 § 6, 1999; Ord. 1309 § 1, 1995).

15.12.100 Mitigated DNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.

B. An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

1. Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the city is lead agency; and

2. Precede the city’s actual threshold determination for the proposal.

C. The responsible official should respond to the request for early notice within 15 working days. The response shall:

1. Be written;

2. State whether the city currently considers issuance of a DS likely and, if so, indicate the general or specific areas of concern that are leading the city to consider a DS; and

3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

D. As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

E. When the applicant submits a changed or clarified proposal along with a revised or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal.

1. If the city indicated specific mitigation measures in its response in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a DNS under WAC 197-11-340(2).

2. If the city indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate.

3. The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent stormwater runoff”, to “muffle machinery to X decibel” or “construct 200-foot stormwater retention pond at Y location” are adequate.

4. Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

F. A mitigated DNS is issued either under WAC 197-11-340(2), requiring a 14-day comment period and public notice, or under WAC 197-11-335, which may require no additional comment period beyond the comment period on the notice of application.

G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city. Failure to comply with the designated mitigation measures shall be grounds for suspension and/or revocation of any issued license or permit.

H. If the city’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the city should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (Withdrawal of DNS).

I. The city’s written response under subsection B of this section shall not be construed as a determination of significance. In addition, preliminary discussions of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city to consider the clarifications or changes in its threshold determination. (Ord. 1397 § 7, 1999; Ord. 1309 § 1, 1995).

Article IV. Environmental Impact Statement (EIS)

15.12.110 Purpose of this part and adoption by reference.

This part contains the rules for preparing environmental impact statements. The city adopts the following sections by reference, as supplemented by this part:

WAC

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping.

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

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

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

197-11-444 Elements of the environment.

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

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 1309 § 1, 1995).

15.12.120 Preparation of EIS – Additional considerations.

A. Preparation of draft and final EIS’s (DEIS and FEIS) and draft and final supplemental EIS’s (SEIS) is the responsibility of the city under the direction of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and chapter 197-11 WAC.

B. The DEIS and FEIS or draft and final SEIS shall be prepared by city staff, the applicant, or by a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

C. The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.)

D. The environmental impact statement may be combined with the recommendation or report on the proposal or issues as a separate document. The substantive decisions or recommendations shall be clearly identifiable in the combined document. (Ord. 1309 § 1, 1995).

15.12.125 Additional elements to be covered in an EIS.

The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this chapter:

A. Economy of the area;

B. Social policy analysis;

C. Cost-benefit analysis;

D. Such other elements as may be required by the responsible official. (Ord. 1309 § 1, 1995).

Article V. Commenting

15.12.128 Adoption by reference.

This part contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The city adopts the following sections by reference, as supplemented in this part:

WAC

197-11-500 Purpose of this part.

197-11-502 Inviting comment.

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

197-11-508 SEPA register.

197-11-510 Public notice.

197-11-535 Public hearings and meetings.

197-11-545 Effect of no comment.

197-11-550 Specificity of comments.

197-11-560 FEIS response to comments.

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

(Ord. 1397 § 8, 1999; Ord. 1309 § 1, 1995).

15.12.130 Public notice.

Whenever the city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the city shall give public notice as required by chapter 17.68 BMC. (Ord. 1309 § 1, 1995).

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

A. The responsible official shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.

B. The responsible official shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate city departments. (Ord. 1309 § 1, 1995).

Article VI. Using Existing
Environmental Documents

15.12.150 Purpose of this part and adoption by reference.

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

WAC

197-11-164 Planned actions – Definition and criteria.

197-11-168 Ordinances or resolutions designating planned actions – Procedures for adoption.

197-11-172 Planned actions – Project review.

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

197-11-610 Use of NEPA documents.

197-11-620 Supplemental environmental impact statement – Procedures.

197-11-625 Addenda – Procedures.

197-11-630 Adoption – Procedures.

197-11-635 Incorporation by reference – Procedures.

197-11-640 Combining documents.

(Ord. 1397 § 9, 1999; Ord. 1309 § 1, 1995).

Article VII. SEPA and Agency Decisions

15.12.155 Purpose of this part and adoption by reference.

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

WAC

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 1309 § 1, 1995).

15.12.160 Substantive authority.

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

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

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

2. Such conditions are in writing; and

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

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

5. Such conditions are based on one or more policies in subsection D of this section.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. The city adopts by reference the policies in the following:

a. Burlington Municipal Code, including all other chapters contained in Title 15, Buildings and Construction, as may be further amended;

b. Burlington Comprehensive Plan dated June, 1994, and map, as may be further amended;

c. Shoreline Management Act, as may be further amended;

d. Growth Management Act, as may be further amended;

e. Forest Practice Act and Regulations as may be further amended. (Ord. 1309 § 1, 1995).

15.12.170 Appeals.

A. Any person may appeal the issuance of:

1. A determination of nonsignificance; and

2. A final environmental impact statement.

B. An appeal must be filed in writing with the responsible official within 15 calendar days of the date the decision becomes final. The appeal shall identify the decision, contain a summary of the grounds for the appeal and be accompanied by an appeal fee in an amount established by resolution of the city council. Following receipt of the appeal and the fee, the responsible official shall transmit a copy of the appeal to the city council.

C. Because a major purpose of this chapter is to combine environmental considerations with public decisions, any appeal brought under this chapter shall be linked to a specific governmental action. The State Environmental Policy Act provides a basis for challenging whether governmental action is in compliance with the substantive and procedural provisions of this chapter. The State Environmental Policy Act is not intended to create a cause of action unrelated to a specific governmental action.

D. Unless otherwise provided by this section:

1. Appeals under this chapter shall be of the governmental action together with its accompanying environmental determinations.

2. Appeals of environmental determination made (or lacking) under this chapter shall be commenced within the time required to appeal the governmental action which is subject to environmental review.

E. Only one appeal proceeding on a procedural determination (the adequacy of a determination of nonsignificance or of a final environmental impact statement). Such appeals shall also be allowed for a determination of nonsignificance which may be issued by the agency after supplemental review.

F. The appeal shall consolidate an appeal of procedural issues and of substantive determinations made under this chapter (such as a decision to require particular mitigation measures or to deny a proposal) with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing before the city council to consider the decisions on a proposal and any appealable environmental determinations made under this chapter as defined in subsection A above.

G. Shall provide for the preparation of a record for use in any subsequent appeal proceedings, and shall provide for any subsequent appeal proceedings to be conducted on the record, consistent with other applicable law. An adequate record consists of findings and conclusions, testimony under oath, exhibits and taped or written transcript. An electronically recorded transcript will suffice for purposes of review under this subsection.

H. Shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight.

I. If a person aggrieved by an agency action has the right to judicial appeal and if an agency has an appeal procedure, such person shall, prior to seeking any judicial review, use such agency procedure if any such procedure is available, unless expressly provided otherwise by state statute.

J. The city council shall consider the appeal at a public hearing, the date and time of which shall be fixed at a meeting of the city council. Notice of the date and time of the public hearing shall be published once and mailed to the appellant and the responsible official at least 15 days before the public hearing. The city council shall consider the appeal on the record and on written appeal statements and arguments of the appellant and the city. The city council may allow the city and the appellant to make oral argument based on the record, may visit the site and may permit the record to be supplemented. Any additional testimony shall be taken under oath and the meeting shall be tape recorded. After consideration of the record, written appeal statements and arguments, and additional evidence and oral argument, if any, the city council shall enter its own findings of fact, conclusions of law and a decision, which may adopt in whole or in part by reference the decision entered by the responsible official. In rendering a decision, the city council shall give substantial weight to the decision of the responsible official. The decision of the city council is final unless an appeal is filed with the superior court.

K. The city shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (Ord. 1309 § 1, 1995).

15.12.171 Planned action.

A. A planned action, as provided for in subsection B of this section, does not require a threshold determination or the preparation of an environmental impact statement under this chapter, but is subject to environmental review and mitigation as provided in this chapter.

B. 1. For purposes of this section, a planned action means one or more types of project action that:

a. Are designated planned actions by an ordinance or resolution adopted by a county, city or town planning under RCW 36.70A.040;

b. Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with (i) a comprehensive plan or subarea plan adopted under chapter 36.70A RCW, or (ii) a phased project;

c. Are subsequent or implementing projects for the proposals listed in (1)(b) of this subsection;

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; and

f. Are consistent with the comprehensive plan adopted under chapter 36.70A RCW.

2. A county, city, or town shall limit planned actions to certain types of development or to specific geographical areas that are less extensive than the jurisdictional boundaries of the county, city, or town and may limit a planned action to a time period identified in the environmental impact statement or the ordinance or resolution adopted under this subsection. (Ord. 1309 § 1, 1995).

15.12.173 Notice/statute of limitations.

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

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk or county auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1309 § 1, 1995).

Article VIII. Definitions

15.12.175 Purpose of this part and adoption by reference.

This part contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by BMC 15.12.040:

WAC

197-11-700 Definitions.

197-11-702 Act.

197-11-704 Action.

197-11-706 Addendum.

197-11-708 Adoption.

197-11-710 Affected tribe.

197-11-712 Affecting.

197-11-714 Agency.

197-11-716 Applicant.

197-11-718 Built environment.

197-11-720 Categorical exemption.

197-11-721 Closed record appeal.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/city.

197-11-730 Decision maker.

197-11-732 Department.

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

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

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Non-project.

197-11-775 Open record hearing.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-786 Reasonable.

197-11-788 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

(Ord. 1397 § 10, 1999; Ord. 1309 § 1, 1995).

Article IX. Agency Compliance

15.12.185 Purpose of this part and adoption by reference.

This part contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating categorical exemptions which do not apply within critical areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The city adopts the following sections by reference:

WAC

197-11-900 Purpose of this part.

197-11-902 Agency SEPA policies.

197-11-916 Application to ongoing actions.

197-11-920 Agencies with environmental expertise.

197-11-922 Lead agency rules.

197-11-924 Determining the lead agency.

197-11-926 Lead agency for governmental proposals.

197-11-928 Lead agency for public and private proposals.

197-11-930 Lead agency for private projects with one agency with jurisdiction.

197-11-932 Lead agency for private projects requiring licensing from more than one agency, when one of the agencies is county/city.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.

197-11-936 Lead agency for private projects requiring licenses from more than one state agency.

197-11-938 Lead agencies for specific proposals.

197-11-940 Transfer of lead agency status.

197-11-942 Agreements on lead agency status.

197-11-944 Agreements on division of lead agency duties.

197-11-946 DOE resolution of lead agency disputes.

197-11-948 Assumption of lead agency status.

(Ord. 1397 § 11, 1999; Ord. 1309 § 1, 1995).

Article X. Forms

15.12.205 Adoption by reference.

The city adopts the following forms and sections by reference.

WAC

197-11-960 Environmental checklist.

197-11-965 Adoption notice.

197-11-970 Determination of non-significance (DNS).

197-11-980 Determination of significance and scoping notice (DS).

197-11-985 Notice of assumption of lead agency status.

197-11-990 Notice of action.

(Ord. 1309 § 1, 1995).

Chapter 15.13
IMPACT FEES

Sections:

15.13.010 Findings and authority.

15.13.020 Definitions.

15.13.030 Findings of adequacy.

15.13.040 Assessment of impact fees.

15.13.050 Exemptions.

15.13.060 Credits.

15.13.070 Tax adjustments.

15.13.080 Appeals.

15.13.090 Establishment of impact fee accounts.

15.13.100 Refunds.

15.13.110 Use of funds.

15.13.120 Review.

15.13.130 Impact fees and administrative fees.

15.13.140 Independent fee calculations.

15.13.150 Existing authority unimpaired.

15.13.160 Authority of planning commission to hear impact fee appeals.

15.13.010 Findings and authority.

The city council of the city of Burlington (the “council”) hereby finds and determines that growth and development activity in the city will create additional demand and need for public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities in the city, and the council finds that growth and development activity should pay a proportionate share of the cost of such planned facilities needed to serve the growth and development activity. Therefore, pursuant to chapter 82.02 RCW the council adopts this chapter to assess impact fees for planned facilities. The provisions of this chapter shall be liberally construed in order to carry out the purposes of the council in establishing the impact fee program. (Ord. 1347 § 2, 1997).

15.13.020 Definitions.

The following definitions shall apply for purposes of this chapter unless the context clearly requires otherwise. Terms otherwise not defined herein shall be defined pursuant to RCW 82.02.090, or given their usual and customary meaning.

1. “Act” means the Growth Management Act, Chapter 17, Laws of 1990, 1st Ex. Sess., chapter 36.70A RCW et seq., and Chapter 32, Laws of 1991, 1st Sp. Sess., as now in existence or as hereafter amended.

2. “Boundary line adjustment” shall have the same meaning as set forth in BMC Title 16.

3. “Building permit” means an official document or certification which is issued by the building official and which authorizes the construction, alteration, enlargement, conversion, reconstruction, remodeling, rehabilitation, erection, demolition, moving or repairing of a building or structure.

4. “Capital facilities” means the facilities or improvements included in a capital budget.

5. “Capital facilities plan” or the “plan” means the capital facilities plan adopted by the council as part of the capital facilities element of the comprehensive plan for Burlington.

6. “City” means the city of Burlington.

7. “City engineer” means the officially appointed and acting public works director for the city, also referred to herein as a “department head”.

8. “Council” means the city council of the city of Burlington.

9. “County” means Skagit County.

10. “Department” means the city planning department.

11. “Developer” means an individual, group of individuals, partnership, corporation, state agency, or other person undertaking development activity, and their successors and assigns.

12. “Development activity” means any construction or expansion of a building or structure; or the siting of a mobile home; or any change in use of a building or structure or mobile home; or the subdivision of land; or the seeking of plat approval, binding site plan approval, mobile home park approval, boundary line adjustment, or conditional use permit approval; or any change in use of land that creates additional demand and need for public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities.

13. “Development approval” means any written authorization from the city, other than a building permit, which authorizes the commencement of a development activity, including, but not limited to, plat approval, binding site plan approval, boundary line adjustment, and a conditional use permit.

14. “Encumbered” means to reserve, set aside, or otherwise earmark the impact fees in order to pay for commitments, contractual obligations, or other liabilities incurred for planned facilities.

15. “Feepayer” is a person, corporation, partnership, an incorporated association, or any other similar entity, or department or bureau of any governmental entity or municipal corporation commencing a development activity which creates the demand for planned facilities, and which requires development approval and/or the issuance of a building permit. “Feepayer” includes an applicant for an impact fee credit.

16. “Fire chief” means the officially appointed and acting chief of the fire department of the city, also referred to herein as a “department head”.

17. “Fire impact fee” means the impact fee designated to pay for fire protection facilities.

18. “Impact fee” means a payment of money imposed by the city on development activity pursuant to this chapter as a condition of granting development approval and/or a building permit in order to pay for the planned facilities needed to serve new growth and development activity. “Impact fee” does not include a reasonable permit fee, an application fee, the administrative fee for collecting and handling impact fees, the cost of reviewing independent fee calculations, or the administrative fee required for an appeal pursuant to BMC 15.13.080.

19. “Impact fee account” or “account” means the account or accounts established for the planned facilities for which impact fees are collected. The accounts shall be established pursuant to BMC 15.13.090, and comply with the requirements of RCW 82.02.070.

20. “Independent fee calculation” means the impact calculation, and/or economic documentation prepared by the feepayer, to support the assessment of an impact fee other than by the use of the schedules attached as Appendix A to this chapter, on file in the office of the city clerk, or the calculations prepared by the planning director or city engineer where none of the impact fee categories or impact fee amounts in Appendix A accurately describe or capture the impacts of the development activity on public streets and roads, publicly owned parks, open space and recreational facilities, and fire protection facilities.

21. “Owner” means the owner of record of real property, or a person with an unrestricted written option to purchase property; provided, that if the real property is being purchased under a recorded real estate contract, the purchaser shall be considered the owner of the real property.

22. “Parks director” means the recreation coordinator of city parks and recreation department, also referred to herein as a “department head”.

23. “Parks impact fee” means the impact fee designated to pay for publicly owned parks, open space and recreation facilities.

24. “Planned facilities” shall mean public streets and roads, publicly owned parks, open space and recreation facilities, and fire protection facilities included in the capital facilities element of the comprehensive plan for Burlington.

25. “Planning director” means the director of the department of planning and community development.

26. “Standard of service” means the quantity and quality of service which the city council has determined to be appropriate and desirable for the city. A measure of the standard of service may include, but is in no way limited to, maximum levels of congestion on city streets and roads, maximum commute times, maximum wait at stops, maximum fire department response time, minimum fire suppression capabilities, minimum park space per capita for a variety of types of parks, minimum distance from residences to parks, and any other factors the city council may deem appropriate.

27. “State” means the state of Washington.

28. “Transportation impact fees” means the impact fee designated to pay for public streets and roads.

29. “Unit” means any building or portion thereof which contains living facilities including provisions for sleeping, cooking, eating, and sanitation, as required by the city, for not more than one family and including site built buildings, mobile/manufactured homes and modular homes.

30. “Voluntary agreement” means an agreement between the developer and the city as authorized by RCW 82.02.020. (Ord. 1347 § 2, 1997).

15.13.030 Findings of adequacy.

A. Prior to approving proposed plats, binding site plans, or granting other development approvals, the council or administrative personnel, as appropriate, shall make written findings that appropriate provisions are made for planned facilities. Findings of adequacy shall be based on the city’s standard of service.

B. Compliance with this requirement shall be sufficient to satisfy the requirements of RCW 58.17.110, 58.17.060, and the Growth Management Act. The findings shall be made at the time of preliminary plat, binding site plan or other development approval.

C. The city shall not approve applications for preliminary plats, binding site plans, or grant other development approvals, unless the city is able to make the finding of adequacy; provided, that if the feepayer opts to dedicate land, to provide improvements, and/or construction consistent with the requirements of BMC 15.13.060 governing credits, where appropriate, the city may make such findings.

D. If any party for any reason is able to exempt itself from the operation of this chapter, the city reserves the right to review its land use plan in conjunction with its capital facilities plan in order to ensure adequacy. In the event that the impact fees that might have been paid would have been an integral part of the financing to ensure adequacy, the city reserves the right to deny approval for the development on these grounds. (Ord. 1347 § 2, 1997).

15.13.040 Assessment of impact fees.

A. The city shall collect impact fees, based on the schedules in Appendix A, 1999 Update, as further amended by the 2004 Transportation Impact Fee Update, from any applicant seeking a building permit from the city.

B. Except as may be due to exemptions or credits provided pursuant to BMC 15.13.050 or 15.13.060, pursuant to an independent fee calculation accepted by the planning director pursuant to BMC 15.13.140, or impact fees imposed by the planning director pursuant to BMC 15.13.140, the city shall not issue a building permit(s) unless and until the impact fees set forth in the schedules in Appendix A, 1999 Update, as further amended by the 2004 Transportation Impact Fee Update, attached to the ordinance codified in this section, to this chapter have been paid. (Ord. 1533 § 1, 2004; Ord. 1446 § 1, 2000; Ord. 1410 § 1, 1999; Ord. 1347 § 2, 1997).

15.13.050 Exemptions.

A. The following shall be exempted from the payment of all impact fees:

1. Replacement of a structure or mobile home with a new structure or mobile home of the same use at the same site or lot when such replacement occurs within 12 months of the demolition or destruction of the prior structure or the removal of the mobile home.

2. Alterations or expansion or enlargement or remodeling or rehabilitation or conversion of an existing unit where no additional units are created and the use is not changed.

3. The construction of accessory structures that will not create significant impacts on planned facilities.

4. Miscellaneous improvements, including but not limited to fences, walls, swimming pools, and signs.

5. Demolition or moving of a structure.

B. Except as otherwise provided pursuant to the terms of a voluntary agreement entered into between the city and a developer, the payment of fees, the dedication of land, or the construction of planned facilities by the developer pursuant to the terms of a voluntary agreement negotiated with the city with specific reference to the improvements identified in the capital facilities plan and in anticipation of the imposition of impact fees, and entered into between the city and a developer prior to the effective date of the ordinance codified in this chapter shall be deemed to be complete mitigation for the impacts of the specific development on the planned facilities. The units in such development may be charged a reduced fee pursuant to an independent fee calculation under BMC 15.13.140. The developer shall provide to the planning director documentation demonstrating compliance with the terms of the voluntary agreement.

C. Except as otherwise provided pursuant to the terms of a plat condition or a SEPA mitigation condition, the payment of fees, the dedication of land, or the construction of planned facilities by the developer pursuant to the terms of a plat condition or a SEPA mitigation condition negotiated with the city with specific reference to the improvements identified in the capital facilities plan and in anticipation of the imposition of impact fees, and imposed prior to the effective date of the ordinance codified in this section shall be deemed to be complete mitigation for the impacts of the specific development on the planned facilities. The units in such development may be charged a reduced fee pursuant to an independent fee calculation under BMC 15.13.140. The developer shall provide to the planning director documentation demonstrating compliance with the terms of the plat condition or SEPA mitigation condition.

D. The planning director shall be authorized to determine whether a particular development activity falls within an exemption identified in this section, in any other section, or under other applicable law. Determinations of the planning director shall be in writing and shall be subject to the appeals procedures set forth in BMC 15.13.080. (Ord. 1533 § 2, 2004; Ord. 1347 § 2, 1997).

15.13.060 Credits.

A. Credit Available. After the effective date of the ordinance codified in this chapter, credit against the amount of the impact fees for developer dedications of land for planned facilities or construction of planned facilities, or improvements to planned facilities shall be governed by this section. This section allows for the provision of reasonable credit to a feepayer for the value of any dedication of land for, improvements to or new construction of planned facilities by a feepayer, pursuant to RCW 82.02.060(3), as further provided herein. The amount of the credit for a particular improvement or facility shall be limited to the cost of that improvement or facility as set forth in Appendix A to this chapter, on file in the office of the city clerk, as now or hereafter amended. Credits shall be specific to the type of improvements or dedications made, such that dedications of land for, construction of or improvements to publicly owned parks, open space or recreational facilities shall be applicable only to the parks impact fee; dedications of land for, construction of, improvements to public bridges shall be applicable only to the transportation impact fee; and dedications of land for, construction of or improvements to fire protection facilities shall be applicable only to the fire impact fee. Credit shall not include increased housing density.

B. Application for Credit/Determination of Suitability of Land, Improvements, Construction. The feepayer applying for credit (hereinafter, “the applicant”) shall direct the request for a credit or credits to the planning director, who shall refer the request to the city engineer, the fire chief and/or the parks director as appropriate. The appropriate department head shall first determine the general suitability of the land, improvements, and/or construction for city purposes. The planning director shall then determine whether the land, improvements, and/or the facilities constructed are included within the city’s adopted capital facilities plan or the planning director may make the finding that such land, improvements, and/or facilities would serve the goals and objectives of the city’s capital facilities plan. The planning director shall adopt the determination of the appropriate department head as to the general suitability of the land, improvements and/or construction for city purposes. In all cases, the planning director shall inform the applicant, in writing, of the adoption of the determination.

C. Determination of Credit Amounts. For each request for credit, once the city has determined that the land, improvements, and/or construction would be suitable for city purposes, the planning director shall determine the amount of the credit. The applicant shall be entitled to a credit for a reasonable value of the land, improvements, and/or construction that is made or dedicated, based upon the actual cost of improvements and/or construction, or the agreed upon or actual predevelopment value of land dedicated. In the event an appraisal is necessary to determine the value of land dedicated, an appraiser shall be designated by the city and the full cost of such appraisal shall be paid by the applicant; provided, however, that if the applicant disagrees with the appraisal, and hence the determination of the value of the credit by the planning director, the applicant may appeal under the appeals procedure set forth in BMC 15.13.080. Upon reaching a determination of the total value of credits available to the applicant, the planning director shall notify the applicant in writing of the determination (the “determination of value”). The planning director shall then issue a credit certificate in the amount of the determination of value.

D. Use of Credits. The applicant, upon receipt of a credit certificate shall have the right to use the certificate to offset any future impact fee assessed for any development activity that will be required to pay impact fees. The administration and application of the credit certificates will be as described in subsection E of this section. The application of any credit certificate will be specific to either the transportation impact fee, the park impact fee or the fire impact fee.

E. Credit Certificates/Administration. After determining the amount of the credit, the planning director shall issue and provide the applicant with a document hereinafter known as a credit certificate, setting forth the dollar amount of the credit, the date of issuance of the credit certificate, the date of expiration of the credit and the credit certificate, the reason for the credit, the legal description of the property donated, and/or the improvement or construction for which was the basis the credit certificate is registered (the “credit holder”). The applicant must sign and date the credit certificate, and return such signed credit certificate to the planning director for filing in the city’s credit certificate registry before the credit will be awarded. The failure of the applicant to sign, date, and return the credit certificate within 60 calendar days shall nullify the credit. The original credit certificate shall be kept registered in the city’s records, and the credit holder shall be provided a duplicate copy. The planning director shall develop reasonable rules and regulations for the administration of the credit certificate program, including the calculation of credits, and including procedures for use of credits and application of credits to particular parcels of land which may be by recorded document, and including the ability to levy an administrative fee in an amount sufficient to cover actual costs to the city.

F. Transfer of Credit/Partial Use of Credit. Credit certificates may be transferred or sold to third parties by the credit holder; provided, that in order to transfer credits to another party, the current credit holder shall register the transfer with the city in accordance with the procedures for registration of credit transfers developed by the planning director. Only the credit holder who is reflected on the city’s registration system pursuant to the city’s registration system may utilize the credit. Registration with the city of credit certificates shall be conclusive evidence of credit ownership. To the extent that a credit holder wishes to utilize only a portion of the credit reflected on the credit certificate against impact fees due on a particular project, the planning director shall develop procedures for reducing the amount of credit reflected on the credit certificate accordingly or issuing a new credit certificate with the remaining credit amount.

G. Limitations on Utilization of Credits. Utilization of credit against payment of impact fees must in all cases be made prior to payment of the impact fee. No reimbursement of impact fees will be made for credit not utilized at the time the impact fee was due. In no event shall the city be under any obligation to advise any applicant for a building permit or other development approval of the existence or possible existence of the availability of credits. The burden of investigating and determining if credits may be available shall rest solely with such applicant. Credit utilized shall never exceed the amount of the impact fee due.

H. Credit for Significant Past Tax Payments. For each request for a credit for significant past tax payments made for particular improvements or land acquisitions, the feepayer shall submit proof of payments and calculation of past tax payments earmarked for or proratable to the particular improvements or land acquisitions. The planning director shall establish procedures for determining the amount of credit for significant past tax payment made for particular improvements or land acquisitions.

I. Appeals. Determinations made by the planning director pursuant to this section shall be subject to the appeals procedures set forth in BMC 15.13.080.

J. Expiration of Credits. Credits shall expire, and credit certificates shall become null and void, on a date six years from the date of issuance of the original credit certificate by the planning director. Transfer of credits or partial use of credits which may involve reissuance of credit certificates shall in no event extend the expiration date of those credits. (Ord. 1347 § 2, 1997).

15.13.070 Tax adjustments.

Pursuant to and consistent with the requirements of RCW 82.02.060, the capital facilities plan has provided adjustments for future taxes to be paid by the developer which are earmarked or proratable to the planned facilities which will serve the development activity. The impact fee schedules in Appendix A, on file in the office of the city clerk, have been reasonably adjusted for taxes and other revenue sources which are anticipated to be available to fund particular planned facilities. (Ord. 1347 § 2, 1997).

15.13.080 Appeals.

A. Any feepayer may pay the impact fees imposed by this chapter under protest in order to obtain the development approval and/or a building permit. Appeals regarding the impact fees imposed on any development activity may only be taken by the feepayer of the property where such development activity will occur. No appeal shall be permitted unless and until the impact fees at issue have been paid.

B. The planning director’s determinations with respect to the applicability of the impact fees to a given development approval and/or building permit, the availability of an exemption, the availability or value of a credit, or the planning director’s decision concerning the independent fee calculation which is authorized in BMC 15.13.140, or the impact fees imposed by the planning director pursuant to BMC 15.13.140, or any other determination which the planning director is authorized to make pursuant to this chapter, can be appealed to the planning commission.

C. Appeals shall be taken within 10 working days of the planning director’s issuance of a written determination by filing with the planning commission a notice of appeal specifying the grounds thereof, and depositing an administrative fee in the amount of $300.00. The planning director shall transmit to the planning commission all papers constituting the record for the determination, including where appropriate, the independent fee calculation.

D. The planning commission shall fix a time for the hearing of the appeal, give notice to the parties in interest, and decide the same. At the hearing, any party may appear in person or by agent or attorney. If the matter which is the subject of the appeal requires development approval which also requires a hearing before the planning commission, both the appeal and the development approval hearing may be combined in a single hearing.

E. The planning commission is authorized to make findings of fact regarding the applicability of the impact fees to a given development activity, the availability or amount of the credit, or the accuracy or applicability of an independent fee calculation. The decision of the planning commission shall be final, except as provided in this section.

F. The planning commission may, so long as such action is in conformance with the provisions of this chapter, reverse or affirm, in whole or in part, or may modify the determinations of the planning director with respect to the amount of impact fees imposed or the credit awarded upon a determination that it is proper to do so based on principles or determinations as ought to be made, and to that end shall have the powers which have been granted to the planning director by this chapter.

G. Any feepayer who believes that the decision of the planning commission is based on erroneous procedures, errors of law or fact, or error in judgment, or has discovered new evidence which could not be reasonably available at the prior hearing, may make a written request for reconsideration by the planning commission within 10 working days of the date the decision is rendered. Such feepayer is the “appellant” for the purposes of this section. This request shall set forth the specific errors or new information relied upon by the appellant, and the planning commission may, after review of the record, take further action as it deems proper.

H. The filing of a request for reconsideration shall effectively stay the appeal period until the planning commission takes further action.

I. Where the planning commission determines that there is a flaw in the impact fee program or that a specific exemption or credit should be awarded on a consistent basis or that the principles of fairness require amendments to this chapter, the commission may advise the city council as to any question or questions that the commission believes should be reviewed as part of the council’s annual or other periodic review of the impact fee schedules as mandated by BMC 15.13.120.

J. Any feepayer aggrieved by any decision of the planning commission may submit an appeal of the decision in writing to the city council within 10 working days from the date the final decision of the planning commission is rendered, requesting a review of such decision. Such appeal shall be upon the record, established and made at the hearing held by the planning commission; provided, that new evidence which was not available at the time of the hearing held by the planning commission may be included in such appeal. The term “new evidence” shall mean only evidence discovered after the hearing held by the planning commission and shall not include evidence which was available or which could reasonably have been available and was simply not presented at the hearing for whatever reason.

K. Upon such written notice of appeal being filed within the time period allotted, a hearing shall be held by the city council. Such hearing shall be held in accordance with the following appeal procedures:

1. The planning director or other designee (the “respondent(s)”) shall present a summary of the findings, conclusions, and decision, as well as the alleged errors forming the basis of the appeal.

2. The appellant(s) and the respondent(s) to the appeal shall have the opportunity to present oral arguments before the council; provided, that the appellants may reserve a portion of their time for rebuttal. Such oral argument shall be confined to the record and to any alleged errors therein or to any allegation of irregularities in procedure before the planning commission. The council may request additional information from any staff member or party, or any factual information from members of the audience at its discretion. Such additional information shall be part of the record.

3. If the council finds that:

a. The planning commission’s findings or decision contains substantial error;

b. The planning commission’s proceedings were materially affected by irregularities in procedure;

c. The planning commission’s decision was unsupported by substantial evidence in view of the entire record as submitted; or

d. The planning commission’s decision is in conflict with the city’s adopted plans, policies, and ordinances, it may remand for further hearing before the planning commission or may reverse the planning commission’s decision. In addition, the council may choose to modify the planning commission’s decision based on the above criteria. Furthermore, any matter may be continued to a time certain for additional city staff analysis desired by the council, before a final determination by the council. The appellant shall be provided a copy and afforded reasonable time to review the analysis and respond to the council before final determination by the council.

4. If the council determines that there is no basis for the alleged errors set forth in the appeal, it may adopt the findings of the planning commission and accept the decision of the planning commission.

L. This procedure is the only method for appealing alleged errors or irregularities in procedure which may have occurred before the planning commission. All objections are deemed waived if no appeal is taken from the action by the planning commission.

M. Any matter requiring action by the council approving, modifying, or rejecting a decision of the planning commission shall be final and conclusive, unless within 20 calendar days from the date of the council action any feepayer applies for a writ of certiorari or writ of review to the superior court of Washington for Skagit County, for the purpose of review of the action taken. (Ord. 1347 § 2, 1997).

15.13.090 Establishment of impact fee accounts.

A. The city shall establish separate impact fee accounts for the following: (1) transportation impact fees; (2) parks impact fees; (3) fire impact fees. The accounts shall be interest-bearing accounts.

B. Funds withdrawn from the impact fee accounts must be used in accordance with the provisions of BMC 15.13.110. The interest earned shall be retained in each account and expended for the purposes for which the impact fees were collected.

C. On an annual basis, the city finance director shall provide a report to the council on the impact fee accounts, showing the source and amount of all moneys collected, earned, or received, and the planned facilities that were financed in whole or in part by impact fees.

D. Impact fees shall be expended or encumbered within six years of receipt, unless the city council identifies in written findings extraordinary and compelling reasons or reasons to hold the impact fees beyond the six-year period. Under such circumstances, the council shall establish the period of time within which the impact fees shall be expended or encumbered. (Ord. 1347 § 2, 1997).

15.13.100 Refunds.

A. If the city fails to expend or encumber the impact fees within six years of when the impact fees were paid, or where extraordinary or compelling reasons exist, such other time periods as established pursuant to BMC 15.13.090, the current owner of the property on which impact fees have been paid may receive a refund of such impact fees. In determining whether impact fees have been expended or encumbered, impact fees shall be considered expended or encumbered on a first-in, first-out basis.

B. The city shall notify potential claimants by first class mail deposited with the United States Postal Service at the last known address of such claimants. A potential claimant or claimant must be the owner of the property.

C. Owners seeking a refund of impact fees must submit a written request for a refund of the impact fees to the planning director within one year of the date the right to claim the refund arises or the date that notice is given, whichever is later.

D. Any impact fees for which no application for a refund has been made within this one-year period shall be retained by the city and expended on the appropriate planned facilities.

E. Refunds of impact fees under this section shall include any interest earned on the impact fees by the city, calculated at the average interest rate earned by the city on the impact fee account over the preceding fiscal year.

F. When the city seeks to terminate any or all components of the impact fee program, all unexpended or unencumbered funds from any terminated component or components, including interest earned, shall be refunded pursuant to this section. Upon the finding that any or all impact fee requirements are to be terminated, the city shall place notice of such termination and the availability of refunds in a newspaper of general circulation at least two times and shall notify all potential claimants by first class mail at the last known address of the claimants. All funds available for refund shall be retained for a period of one year. At the end of one year, any remaining funds shall be retained by the city, but must be expended for the appropriate planned facilities. This notice requirement shall not apply if there are no unexpended or unencumbered balances within the impact fee account(s) being terminated.

G. The city shall also refund to the current owner of property for which impact fees have been paid all impact fees paid, including interest earned on the impact fees, if the development activity for which the impact fees were imposed did not occur; provided, that if the city has expended or encumbered the impact fees in good faith prior to the application for a refund, the city can decline to provide the refund. If within a period of three years, the same or subsequent owner of the property proceeds with the same or substantially similar development activity, the owner can petition the city for an offset. The petitioner must provide proof of payment of impact fees previously paid for a development of the same or substantially similar nature on the same property or some portion thereof. The planning director shall determine whether to grant an offset. Determinations of the planning director shall be in writing and shall be subject to the appeals procedures set forth in BMC 15.13.080. (Ord. 1347 § 2, 1997).

15.13.110 Use of funds.

A. Pursuant to this chapter:

1. Impact fees collected for public streets and roads, impact fees for publicly owned parks, open space and recreational facilities, and impact fees for fire protection facilities shall be used solely for those respective purposes, and only those that will reasonably benefit the development activity.

2. Impact fees shall not be imposed to make up for deficiencies in existing facilities serving existing developments.

3. Impact fees shall not be used for maintenance or operation.

B. Impact fees may be spent for planned facilities, including but not limited to planning, land acquisition, construction, engineering, architectural, permitting, financing, and administrative expenses, applicable impact fees or mitigation costs, capital equipment pertaining to planned facilities, and any other similar expenses which can be capitalized.

C. Impact fees may also be used to recoup city improvement costs previously incurred by the city to the extent that new growth and development activity will be served by the previously constructed improvements or incurred costs.

D. In the event that bonds or similar debt instruments are or have been issued for the advanced provision of city improvements for which impact fees may be expended, impact fees may be used to pay debt service on such bonds or similar debt instruments to the extent that the facilities or improvements provided are consistent with the requirements of this section and are used to serve the development activity. (Ord. 1347 § 2, 1997).

15.13.120 Review.

The impact fee schedules set forth in Appendix A, on file in the office of the city clerk, shall be reviewed by the council as it may deem necessary and appropriate in conjunction with the annual update of the capital facilities plan element of the city’s comprehensive plan. (Ord. 1347 § 2, 1997).

15.13.130 Impact fees and administrative fees.

A. The impact fees set forth in Appendix A, attached to the ordinance codified in this chapter, and on file in the office of the city clerk, are based upon the data and assumptions set forth therein, and the information and public input provided to the city council in considering adoption of the ordinance codified in this chapter. Except as otherwise provided in BMC 15.13.050, 15,13.060 or 15.13.140, all development activity in the city will be charged the impact fees set forth in the schedules contained in Appendix A.

B. The city’s cost of administering the impact fee program shall be $35.00 per unit for single-family residential permits, or $70.00 per multifamily residential permit, or one percent of the impact fees calculated to be due for nonresidential permits, per impact fee (i.e., $35.00 or one percent for the fire impact fee, $35.00 for parks impact fee and $35.00 or one percent for the transportation impact fee), and shall be paid by the applicant to the city as part of the permit fee. (Ord. 1347 § 2, 1997).

15.13.140 Independent fee calculations.

A. If the planning director believes in good faith that none of the impact fee categories or impact fee amounts set forth in the schedules in Appendix A, on file in the office of the city clerk, accurately describe or capture the impacts of a development activity on planned facilities, the planning director may conduct independent fee calculations. The planning director may impose alternative impact fees on a specific development activity based on these calculations. The alternative impact fees and the calculations shall be set forth in writing and shall be mailed to the feepayer.

B. If a feepayer opts not to have the impact fee determined according to the schedules set forth in Appendix A, on file in the office of the city clerk, then the feepayer shall prepare and submit to the planning director an independent fee calculation for the development activity for which final plat, binding site plan, or other development approval, or a building permit is sought. The documentation submitted shall show the basis upon which the independent fee calculation was made. The appropriate department heads shall review the independent fee calculation and provide an analysis to the planning director concerning whether the independent fee calculation should be accepted, rejected, or accepted in part. The planning director may adopt, reject or adopt in part the independent fee calculation based on the analysis prepared by appropriate department heads, and based on the specific characteristics of the development activity, and/or principles of fairness. The impact fees or alternative impact fees and the