This section of the Chapter is intended to ensure that complete, quality information is used in the SEPA process, that SEPA is incorporated with other laws and decisions, and provide a clear, concise, description of the City’s substantive authority under SEPA. The section includes appeal provisions for SEPA determinations. It also incorporates the following sections of the Washington Administrative Code by reference:
WAC 197-11-650
Purpose of this part.
WAC 197-11-655
Implementation.
(Ord. 27995 Ex. J, 2011-06-14)
(Flexible thresholds for categorical exemptions. Ord. 23262 § 8, 1984-09-25; Ord. 25856 § 11, 1996-01-27; Ord. 27296 § 40, 2004-11-16; repealed and relocated to § 13.12.310 by Ord. 28011 Ex. A, 2011-08-23)
A. 
Any action by the City of Tacoma on public or private proposals that is not exempt may be conditioned or denied under SEPA to mitigate the environmental impact subject to the following limitations:
1. 
Mitigation measures or denials shall be based on the policies, plans, rules, or regulations formally designated by the City as a basis for the exercise of substantive authority and in effect when a complete SEPA checklist is submitted.
2. 
Mitigation measures shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by the responsible official. The responsible official shall cite the City’s SEPA policy that is the basis of any condition or denial under this chapter. The responsible official shall make available to the public, in their office, a document that states the decision. The document shall state the mitigation measures, if any, that will be implemented as part of the decision, including any monitoring of environmental impacts. Such a document may be the permit itself, or may be combined with other City documents, or may reference relevant portions of environmental documents.
3. 
Mitigation measures shall be reasonable and capable of being accomplished.
4. 
Responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal. Voluntary additional mitigation may occur.
5. 
Before requiring mitigation measures, the responsible official shall consider whether local, State, or Federal requirements and enforcement would mitigate an identified significant impact.
6. 
To deny a proposal under SEPA, the decision maker must cause an EIS to be prepared and subsequently find that:
a. 
The proposal would be likely to result in significant adverse environmental impacts identified in a final or supplemental environmental impact statement prepared under this chapter; and
b. 
Reasonable mitigation measures are insufficient to mitigate the identified impact.
7. 
If, during project review, the responsible official determines that the requirements for environmental analysis, protection, and mitigation in the City’s development regulations, or comprehensive plan, or in other applicable local, state, federal laws, or rules, provide adequate analysis of, and mitigation for the specific adverse environmental impacts of the project action, the responsible official shall not impose additional mitigation under this chapter.
B. 
The decision maker should judge whether possible mitigation measures are likely to protect or enhance environmental quality. The EIS should briefly indicate the intended environmental benefits of mitigation measures for significant impacts. An EIS is not required to analyze in detail the environmental impacts of mitigation measures, unless the mitigation measures:
1. 
Represent substantial changes in the proposal so that the proposal is likely to have significant adverse environmental impacts, or involve significant new information indicating, or on, a proposal’s probable significant adverse environmental impacts; and
2. 
Will not be analyzed in a subsequent environmental document prior to their implementation.
C. 
The City has prepared the comprehensive plan, which contains agency SEPA policies and has further set them forth in this chapter for the information of the public and of other agencies. This document includes by reference the regulations, plans, or codes formally designated under this section and RCW 43.21C.060 as possible bases for conditioning or denying proposals. This document is available to the public in the SEPA PIC and shall be available to applicants prior to preparing a draft EIS.
(Ord. 27995 Ex. J, 2011-06-14)
A. 
All appeals under this chapter shall be conducted in accordance with RCW 43.21C.075 concerning appeals of Environmental Determinations. Except in the following cases, appeals on Environmental Determinations shall be heard at the same time as appeals on the underlying governmental action:
1. 
An appeal of a determination of significance;
2. 
An appeal of a procedural determination made by an agency when the agency is a project proponent, or is funding a project, and chooses to conduct its review under this chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;
3. 
An appeal of a procedural determination made by an agency on a nonproject action; or
4. 
An appeal to the local legislative authority under RCW 43.21C.060 or other applicable state statutes.
B. 
Appeal to the Hearing Examiner.
1. 
Initiating an appeal.
a. 
Threshold determination or adequacy of a final environmental impact statement for a proposed land use action shall be appealable to the Hearing Examiner. All other appeals under this chapter, other than appeals of environmental reviews associated with Shoreline Substantial Development Permits, shall be made as set forth below.
b. 
Appeal procedure/fee. A notice of appeal, together with a filing fee as set forth in Section 2.09 of the Tacoma Municipal Code, shall be filed with Planning and Development Services. Planning and Development Services shall process the appeal in accordance with Chapter 13.05 of this title.
c. 
Time requirement. An appeal shall be filed within 14 calendar days after issuance of the determination by the responsible official. If the last day for filing an appeal falls on a weekend day or holiday, the last day for filing shall be the next working day.
d. 
Content of the appeal. Appeals shall contain:
(1) 
The name and mailing address of the appellant and the name and address of their representative, if any;
(2) 
The appellant’s legal residence or principal place of business;
(3) 
A copy of the decision which is appealed;
(4) 
The grounds upon which the appellant relies;
(5) 
A concise statement of the factual and legal reasons for the appeal;
(6) 
The specific nature and intent of the relief sought;
(7) 
A statement that the appellant has read the appeal and believes the contents to be true, followed by their signature and the signature of their representative, if any. If the appealing party is unavailable to sign the appeal, it may be signed by their representative.
e. 
Dismissal of appeal. The Hearing Examiner may summarily dismiss an appeal without hearing when such appeal is determined by the Examiner to be without merit on its face, frivolous, or brought merely to secure a delay, or that the appellant lacks legal standing to appeal.
f. 
Effect of appeal. The filing of an appeal of a threshold determination or adequacy of a final environmental impact statement (FEIS) shall stay the effect of such determination or adequacy of the FEIS and no major action in regard to a proposal may be taken during the pendency of an appeal and until the appeal is finally disposed of by the Hearing Examiner. A decision to reverse the determination of the responsible official and uphold the appeal shall further stay any decision, proceedings, or actions in regard to the proposal.
2. 
Withdrawal of appeal. An appeal may be withdrawn, only by the appellant, by written request filed with Planning and Development Services. Planning and Development Services shall inform the Hearing Examiner and responsible official of the withdrawal request. If the withdrawal is requested before the response of the responsible official, or before serving notice of the appeal, such request shall be permitted and the appeal shall be dismissed without prejudice by the Hearing Examiner, and the filing fee shall be refunded.
3. 
Response of responsible official. The responsible official shall respond in writing to the appellant’s objections. Such response shall be transmitted to Planning and Development Services. Planning and Development Services shall forward all pertinent information to the Hearing Examiner, appellant, and responsible official no later than seven days prior to hearing. The official’s response shall contain, when applicable, a description of the property and the nature of the proposed action. Response shall be made to each specific and explicit objection set forth in the appeal, but no response need be made to vague or ambiguous allegations. The response shall be limited to facts available when the threshold determination was made. In the case of a response to an appeal of the adequacy of a final environmental impact statement, the response shall be limited to facts available when the final environmental impact statement is issued. No additional environmental studies or other information shall be allowed.
4. 
Hearing.
a. 
The hearing of an appeal of a determination of nonsignificance or adequacy of an environmental impact statement on a proposed land use action which requires a hearing shall be held concurrently with the hearing on the application request.
b. 
The hearing of an appeal of a determination of nonsignificance or adequacy of the final environmental impact statement for a proposal which requires an administrative land use decision shall be expeditiously scheduled upon receipt of a valid appeal. If the SEPA determination and land use decision are appealed, the SEPA appeal and the land use hearing shall be held concurrently.
c. 
The hearing of an appeal by a project sponsor of a determination of significance issued by the responsible official shall be expeditiously scheduled upon receipt of a valid appeal.
d. 
The public hearing shall be conducted in accordance with the provisions of Chapter 1.23 of the Tacoma Municipal Code.
e. 
The Hearing Examiner may affirm the decision of the responsible official or the adequacy of the environmental impact statement, or remand the case for further information; or the Examiner may reverse the decision if the administrative findings, inferences, conclusions, or decisions are:
(1) 
In violation of constitutional provisions as applied; or
(2) 
The decision is outside the statutory authority or jurisdiction of the City; or
(3) 
The responsible official has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure; or
(4) 
In regard to challenges to the appropriateness of the issuance of a DNS clearly erroneous in view of the public policy of SEPA; or
(5) 
In regard to challenges to the adequacy of an EIS shown to be inadequate employing the “rule of reason.”
f. 
Evidence – Burden of proof. In each particular proceeding, the appellant shall have the burden of proof, and the determination of the responsible official shall be presumed prima facie correct and shall be afforded substantial weight. Appeals shall be limited to the records of the responsible official.
g. 
Continuation of hearing.
(1) 
Cause. A hearing may be continued by the Hearing Examiner with the concurrence of the applicant for the purpose of obtaining specific pertinent information relating to the project which was unavailable at the time of the original hearing.
(2) 
Notification. The Hearing Examiner shall announce the time and place of a continued hearing at the time of the initial hearing or by written notice to all parties of record.
5. 
The Examiner’s decision for an appeal shall be made in accordance with Chapter 1.23 of the Tacoma Municipal Code.
C. 
Appeals of non-land use, shoreline, and other actions.
1. 
Appeals for environmental determinations which are not related to land use actions (i.e., permits issued pursuant to TMC Chapter 13.05), including building permits, shall be made to Superior Court.
a. 
The SEPA appeal period commences upon issuance of the underlying permit, not with the issuance of the SEPA determination.
b. 
Appeals shall be made to Superior Court within 21 days of the action.
2. 
Appeals of non-project actions (e.g., decisions made in the course of planning under the Growth Management Act/GMA or the Shoreline Management Act/SMA) shall be appealable to the Growth Management Hearings Board.
a. 
Appeals of GMA actions shall be made within 60 days of the City’s publication of the adopting ordinance;
b. 
Appeals of SMA actions shall be made within 60 days of the City’s publication of the Department of Ecology’s approval of the adopted document.
3. 
Appeals of SEPA associated with Shoreline Substantial Development Permits shall be made to the Shoreline Hearings Board in accordance with the Tacoma Shoreline Master Program Section 2.7.
4. 
Appeals of other actions shall be processed in accordance with the appeal provisions of the underlying action.
D. 
Notice of action. Pursuant to RCW 43.21C.080, notice of any action taken by a governmental agency may be publicized by the applicant for, or proponent of, such action in the form as provided by Planning and Development Services and WAC 197-11-990.
The publication establishes a time period wherein any action to set aside, enjoin, review, or otherwise challenge any such governmental action on grounds of noncompliance with the provisions of SEPA must be commenced, or be barred. Any subsequent action of the City for which the regulations of the City permit use of the same detailed statement to be utilized and as long as there is not substantial change in the project between the time of the action and any such subsequent action, shall not be set aside, enjoined, reviewed, or thereafter challenged on grounds of noncompliance with RCW 43.21C.030(2)(c).
(Ord. 27995 Ex. J, 2011-06-14; Ord. 28109 Ex. O, 2012-12-04; Ord. 28230 Ex. G, 2014-07-22)
(Emergencies. Ord. 23262 § 8, 1984-09-25; repealed and relocated to § 13.12.320 by Ord. 28011 Ex. A, 2011-08-23)