HomeMy WebLinkAbout07/07/2009 22 Central Washington Home Builders Association Request for Public Education Central Washington
(:, Horne = uHHders Association
CENTRAL WASHINGTON HOME BUILDERS ASSOCIATION
Notes of Clarence Barnett for the City Council Meeting July 7, 2009
Stormwater Illicit Discharge Ordinance
The Stormwater Illicit Discharge Ordinance is far reaching . and there has
been no noticeable Public Education or Outreach on illicit discharges. The
Public is not aware of what comprises an Illicit Discharge under this
Ordinance. In fairness to the Public there should be considerable Public
Education and Outreach on Illicit Discharges before the effective date of. the
Ordinance. [30 days after passage of Ordinance.]
1. The Ordinance on pages 7 [Section 7.85.100] and 11 [Section 7.85.220
A] prescribes EACH DAY of non - compliance a separate violation.
The Regional Stormwater Illicit Discharge Model Ordinance at Section
6.2.1, on page 12, has EACH WEEK after notice of violation a separate
offence.
The CWHBA recommends these sections in the Ordinance be amended to
prescribe EACH WEEK of non - compliance a separate violation. The time
period of EACH WEEK would be in keeping with the Regional Stormwater
Illicit Discharge Model Ordinance.
An amendment to Section 7.85.100 on page 7 would read: "Each week on
which non - compliance occurs or continues shall be deemed a separate and
distinct violation."
An amendment to Section 7.85.220 A on page 11 would read: "Each week
upon which a violation occurs or continues shall constitute a separate violation."
2. The Ordinance on page 5 [Section 7.85.050 B] states that the prohibition
of connections "expressly includes, without limitation, Illicit connections made
in the past, regardless of whether the connection was permissible under law
or practices applicable or prevailing at the time of connection." Some
previously allowable connections are now illicit.
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The CWHBA, recommends the Ordinance be amended to include a provision
that clearly states connections made in the past, that are now illicit under this
Ordinance, will have a reasonable period of time to correct the connection.
A suggested amendment to Section 7.85.050 B on page 5 would be an
additional sentence that reads: "The Wastewater Manager is directed to allow
a reasonable period of time to correct connections made in the past that are
now illicit."
[The City staff notes for the Public Meeting held on June 26 on this
Ordinance, cite the Eastern Washington Phase II Municipal Stormwater Permit
that allows 180 days, so hence it is not necessary to put the180 days in the
Ordinance. The CWHBA believes any person who reads the Ordinance
should know there is a reasonable time to correct the now illicit connection
without having to refer to another document [the MS4 Permit] of which the
average citizen has no knowledge.]
3. The Ordinance on page 9 [Section 7.85.160 B] reads: "Any hearing
pursuant to this section must be requested in writing within fifteen [15] days
after the receipt of notice of the City's determination and shall be filed with
the Wastewater Manager. Failure to submit a timely notice shall be
deemed a failure to exhaust administrative remedies and shall preclude
further review."
The CWHBA recommends the Ordinance be amended to provide for
extenuating circumstances such as Illness, Hospitalization or Out of Town when
a person would not be aware of the notice or not able to respond to the
City's determination within 15 days.
It is suggested by our Legal Counsel that by changing the word "shall" to
" may" will allow for staff discretion in considering whether to allow for
extenuating circumstances. [It is noted that Judges frequently allow for
extenuating circumstances in criminal cases to reduce sentences]
An amendment to Section 7.85,160 B on page 9 would read: "Failure to
submit a timely notice may be deemed a failure to exhaust administrative
remedies and may preclude further review.
[ The City Staff notes for the Public Meeting held on June 26 regarding
extenuating circumstances state that the Ordinance gives discretion through
Section 7.85.250 and through words such as "may" and "subject to." There
are no words such as "may" or "subject to" in Section 7.85.160 B. The
Ordinance reads "failure to submit a timely notice SHALL be deemed a
failure to exhaust administrative remedies and SHALL preclude further
review." ]
[Section 7.85.250 refers to Sections 7.85.080 to 7.85.240. These sections
include actions such cis Consent Orders, Compliance Orders, Cease and Desist
Orders, Administrative Hearings, Appeals to the Council, Judicial Review,
Judicial Remedies and Injunctive Relief.
We are seeking to overcome the word "shall" and allow discretion by the
Wastewater Manager whether to allow additional time due to extenuating
circumstance so there,can be an Administrative Hearing.]
[Section 7.85,250 states that certain sections of the Ordinance "are not
exclusive remedies" and "The City reserves the right to take any, all, or any
combination of these actions against a person in violation of this chapter." ]
4. The Ordinance on page 10 [Section 7.85.170 A] reads: "The appellant
must file written notice of appeal with the Clerk of the Council within fifteen
[ 1 5 ] days following issuance of the City Manager ... decision or action . .
.Failure to submit a timely notice is deemed a failure to exhaust
administrative remedies and shall preclude any further review."
The CWHBA submit that the 15 days should be after receipt of the City
Managers decision or action rather than following issuance of the decision or
action. [If the decision is mailed, 2 to 5 days could be lost due to mailing
time.]
Also, the CWHBA recommends provision should be made for extenuating
circumstances such as Illness, Hospitalization or Out of Town [See Notes on
Number 3 above.]
An amendment to Section 7.85.170 A on page 10 would read: "The
appellant must file written notice of appeal with the Clerk of the City Council
within fifteen [1 5] days following receipt of the City Manager .. . decision or
action .. .Failure to submit a timely notice may be deemed a failure to exhaust
administrative remedies and may preclude any further review."