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HomeMy WebLinkAboutO-1846 - Temporary sewer restrictions; repeals Ord. 1795 (Repealed by 1883)CIT Y 0 F MAR Y S V ILL E Marysville,Washington ORDINANCE NO. /2?$L 0 AN ORDINANCE OF THE CITY OF MARYSVILLE IMPOSING TEMPORARY RESTRICTIONS ON NEW SEWER CONNECTIONS TO THE CITY'S SEWER SYSTEM IN RESPONSE TO AN EMERGENCY CONDITION RELATING TO THE CAPACITY AND FUNCTIONAL PERFORMANCE OF THE CITY'S WASTEWATER TREATMENT FACILITY;IMPLEMENTING A DECISION OF THE POLLUTION CONTROL HEARINGS BOARD OF THE STATE OF WASHINGTON IN CASE NO 90-124;ADOPTING A SEPA POLICY RELATING TO THE ADVERSE ENVIRONMENTAL IMPACT OF AN OVERBURDENED WASTEWATER TREATMENT FACILITY;AND REPEALING ORDINANCE 1795. RECITALS: 1.On February 26,1990 the City enacted Ordinance 1763 and on August 13,1990 the city enacted Ordinance 1795.Both of said ordinances imposed temporary restrictions on new sewer connections to the City's sewer system in response to an emer- gency condition relating to the capacity and functional per- formance of the City's wastewater treatment facility.All recitals contained in Ordinances 1763 and 1795 are incorporated herein by this reference. 2.On May 29,1990 the City entered into a Consent Order with the Washington State Department of Ecology ("DOE")under File No.DE 89-N259.Said Consent Order places the city on a schedule for interim upgrading its wastewater treatment facility, establishes restrictive criteria for allowing any new sewer connections until the wastewater treatment facility is upgraded, establishes maximum influent and effluent standards which cannot be exceeded by the wastewater treatment facility,and imposes penalties for violations by the City,inclUding monEtary fines and a potential ban on any new sewer connections. 3.On June 29,1990 an appeal of the DOE Consent Order was filed with the Pollution Control Hearings Board of the State of Washington (PCHB)under Case No.90-124.On April 26,1991 the PCHB affirmed the Consent Order but remanded the same with instructions to condition said Order by adding language which requires DOE and the City of Marysville to authorize 940 sewer connections (residential equivalent units)from January 31,1991 until the fulfillment of the Order.The 940 connections are to be exempt from any potential sewer ban and may not be diminished, but may,on new and significant information,be increased under the re-opener provisions of the Consent Order. ORDINANCE - 1 ,··t, 4.The aforementioned decision of the PCHB authorizes the City of Marysville,in its sound discretion to apportion the 940 exempt sewer connections. 5.While the city's preliminary efforts toward upgrading its sewer system,and its efforts toward bringing customers into compliance with discharge limitations,has resulted in a marked improvement in the performance of its wastewater treatment facility,said compliance continues to be marginal and may prove to be affected by seasonal fluctuations in influent loading and in sewer lagoon performance. 6.The city has completed an EIS relating to the ultimate upgrade of its wastewater treatment facility and is preparing detailed construction plans and specifications for said upgrade. 7.In light of the Pollution Control Hearing Board Decision affirming the DOE Consent Order but requiring the addition of 940 sewer connections,the City must continue to take steps to operate its sewer system within the limitations estab- lished in the DOE Consent Order.until the sewer system upgrade is completed and a new NPDES permit is issued to the city by DOE, it is in the public interest,and in the interest of environ- mental protection,to continue to regulate new sewer connections to the city's system and to continuously monitor the ability of its wastewater treatment facility to accept any additional sewage without violating the criteria established in the DOE Consent Order.It is therefore necessary to continue to have a mechanism in place banning any new connections,except for the 940 connec- tions which shall be exempt from any ban,until the effect of the 940 new connections on the wastewater treatment facility is fully known. NOW,THEREFORE,THE CITY COUNCIL OF THE CITY OF MARYSVILLE, WASHINGTON DO ORDAIN AS FOLLOWS: section 1.Ordinance 1795 Repealed.Ordinance 1795, enacted by the city Council on August 13,1990,is hereby REPEALED for the reason that the same is superseded by this Ordinance. section 2.Moratorium;Exceptions. 2.1.The city shall not authorize or approve any sewer extensions,connections,reconnect ions or increases in meter size,and the city shall not authorize or approve any building permits,remodel projects or changes in occupancy relating to any structure which will result in increasing discharge into the City's sewer system,except: ORDINANCE - 2 a.Those 940 sewer connections which are exempt from any potential sewer ban as specified in section 3 below;and b.Those cases which comply with the "no net increase"exception as defined in section S below. 2.2."Sewer extension"as used herein shall mean any pipe added or connected,or designed to be added or con- nected,to the city's sewage system;provided,that the term does not include gravity side sewers which connect individual buildings or dwelling units to the sewer system when those side sewers are less than 1S0 feet in length and not over 6 inches in diameter."connections"means the physical attachment of any source or potential source of waste water to any sewer or other appurtenances tributary to the Marysville sewer system."Reconnection"means the reestablishment of a prior connection;provided,that a reconnection which will not cause a flow or load increase to the sewer system greater than that from the same source at any time within the prior 12 months will be exempt from this ban. 2.3.The City shall not approve or allow any remodels or additions to structures or changes in occupancy relating to any structure which will result in increasing discharge into the city's sewer system by more than 0.6 pounds of BODS loading per day. 2.4.Nothing herein shall prohibit the construction of dry sewer extensions during the City's sewer moratorium if the following conditions are met: a.The engineering designs shall have first been approved by the City and by the Washington State Department of Ecology. b.The dry sewer extension shall not be struc- turally connected to any manhole in the city's active sewer system without prior written approval by the City. c.Side sewers extending from the dry sewer extension shall not extend beyond the pUblic right-of- way,and no facility shall be connected to the same without prior written approval by the City. d.Dry sewer extensions shall be built to city specifications and shall be subject to inspection and approval by the City.The party installing said extensions shall pay all inspection fees required by City ordinance.Title to the extensions shall not pass ORDINANCE - 3 to the city until the same are connected to the city's active sewer system. e.The owners of all property proposing to benefit from the dry sewer extensions (hereinafter referred to as the "developer")shall sign a covenant in favor of the City agreeing as follows: (1)within ninety (90)days after final termination of the City's sewer moratorium all properties abutting the sewer extension shall be connected to the City's sewer system.such connections shall be sUbject to inspection and approval by the City and payment of all connection fees then required by City ordinance. (2)Upon connection to City sewers all septic tanks and drainfields on affected properties shall be decommissioned in accordance with any and all applicable governmental regula- tions. (3)The warranty and maintenance bond posted by the developer with respect to the dry sewer extensions shall be extended for a period of one (1)year after all sewer connections for abutting properties are finally completed and title to the extensions is conveyed to the city. (4)The developer assumes the risk that the costs it is incurring for the construction of the dry sewer extensions may be without any benefit for an indefinite period in the future while the City's sewer moratorium continues in effect. (5)The developer acknowledges that the City owes no duty,contractual or otherwise,to supply public sewer service to the affected properties, except to the extent that said properties may have vested rights as defined by City ordinance;and except as provided in section 3 below. (6)The developer,on behalf of itself,its successors and assigns,releases the city,its elected and appointed officials,employees and agents,from any and all claims,demands,causes of action,or damages of ~ny kind or description whatsoever arising from delayed availability or unavailability of public sewer connections to the affected properties. ORDINANCE - 4 ,,. (7)The covenant shall be binding upon the developer,its heirs,successors and assigns.If litigation results from the covenant,the prevail- ing party shall be entitled to judgment for court costs and reasonable attorney's fees incurred therein. section 3.Sewer Connections Exempt from Moratorium. 3.1.As ordered by the Pollution Control Hearing Board on April 26,1991 under case No.90-124,there shall be 940 new sewer connections,reconnect ions or increases in meter size (calculated in terms of residential equivalent units as defined below)to be authorized from January 31,1991 until fulfillment of the DOE Consent Order under File No.DE 89- N259 as amended.The sewer connections authorized herein shall be exempt from the provisions of section 2 of this Ordinance and shall otherwise be exempt from any sewer moratorium or any potential moratorium.The term "residen- tial equivalent unit"(REU)shall mean loading equal to that contributed by a sewer connection of an average single- family residence and is equal to 0.6 pounds per day of BOD5. Unless specifically stated otherwise herein,the term "sewer connection"or "connection"shall mean one REU. 3.2.The Director of the Department of Public Works ("Director")shall grant the 940 new sewer connections, reconnections and increases in meter size using the criteria provided in sections 3.3 and 3.4 below. 3.3.The following classifications of properties shall each be granted 100%of the sewer connections,reconnect ions and increases in meter size which have been applied for and approved by the Director: a.Public buildings and facilities necessary for pUblic health,safety or welfare. b.All single-family lots with vested rights as defined in section 4 below. c.All single-family lots for which sewer plans were approved by the city on or before February 26, 1990,but for which the sewer improvements have not been constructed. d.All mUlti-family properties and mobile home parks with vested rights sUbject to the limitations of section 4. e.All Industrial/Commercial properties with vested rights sUbject to the limitations of Section 4. ORDINANCE - 5 f.All Industrial/Commercial properties possessing a valid building permit on which construc- tion was commenced under Ordinance 1763 and which are sUbject to a ULID established and completed prior to February 26,1990 and for which SEPA review was completed prior to February 26,1990,and which were vested under Ordinance 1763 but were restricted under the flow limitations of Ordinance 1795. g.All other properties within established ULIDs to the extent of their vested connections sUbject to the limitations of section 4. h.All properties for which a variance has been granted pursuant to section 9. 3.4.All other classifications of properties,whether vested or not,shall each be granted 10%of the sewer connections for which complete development applications were submitted for approval by the city or Snohomish County on or before February 26,1990,the date of the City's initial sewer moratorium.PROVIDED,however,all short subdivisions for which complete applications were submitted to the city or Snohomish County on or before February 26,1990 shall be entitled to one new sewer connection.PROVIDED,further,no legal lot or parcel entitled to a connection under this section 3.4 shall discharge more than 0.6 pounds of BOD5 per day into the city's sewer system. 3.5.All properties which are entitled to a percentage of the applied-for and approved connections under Section 3.4 above shall be allowed to amend their development application to provide for a phased development project. PROVIDED, a project shall not be phased so as to increase the total number of connections it would otherwise be entitled to under sections 3.3 or 3.4 above.The city Planning Department is hereby authorized to process an application for phased development administratively. Projects which are subject to the jurisdiction of Snohomish County shall be subject to all applicable rules,regulations and ordinances of the County concerning phased development. 3.6.All properties which are eligible for sewer connections under section 3.3 and 3.4 above shall complete construction of the connection within 18 months of the effective date of this ordinance,or the right to the connection shall be forfeited.Any connections which are forfeited may be reallocated in such manner as will not exceed the 940 connection limit imposed by the Pollution Control Hearing Board.No application for a sewer connec- ORDINANCE - 6 tion shall be accepted or granted unless and until all prerequisites for approval as specified by ordinance or resolution are complied with in full to the satisfaction of the city. section 4.Vested Rights.The concept of "vesting"is a recognition of priority status for certain new sewer connections. Except as provided in section 3 above,it does not create any express or implied contractual rights to sewer service.Vested rights shall be defined as follows: 4.1.vesting Under Ordinance 1795.Properties having received written confirmation from the Director of vesting under ordinance 1795,or having received a variance from Ordinance 1795 or a favorable rUling on an administrative appeal from the city council,shall continue to have the same vested rights under this Ordinance,but only to the extent that said properties actually complete construction of vested sewer connections within six months of the effec- tive date of the vesting letter or the city council Resolu- tion.All other vesting under Ordinance 1795 is hereby deemed to be replaced and superseded by the terms of this Ordinance. 4.2.Plats.Preliminary and final plats and short plats with sewer construction plans which have been approved by the city prior to February 26,1990 and are vested with respect to each lot within the plat which has a sewer extension actually constructed across its frontage,with a stub-out installed at said frontage,prior to the effective date of this ordinance. 4.3.Residential.Commercial and Industrial Complexes. Subject to the provisions of section 4.4,apartment buil- dings,mUltiple-family complexes,condominiums,mobile home parks,RV parks,hotels,motels,and multi-tenant commercial and industrial complexes with sewer construction plans which have been approved by the City prior to February 26,1990 are vested to the extent that side sewers,or stub-outs, were actually installed within 150 feet of each connection point prior to the effective date of this ordinance.For purposes of this section,each detached unit,building or pad shall be considered a separate "connection point." 4.4.Individual Lots or Legal Parcels.Except as otherwise provided in this ordinance,individual lots or legal parcels shall have vested rights for a single residen- tial,commercial or industrial sewer connection (that is,a single dwelling unit or a single commercial or industrial tenant)subject to the limitation that it shall not dis- charge more than 0.6 pounds of BOD5 per day into the City's sewer system,if it qualifies under one or more of the ORDINANCE - 7 following criteria prior to the effective date of this ordinance: a. building existing The lot/parcel has an approved and valid permit not more than one year old,and an sewer main across its frontage;or b.The lot/parcel has an approved and valid sewer connection permit,and an existing sewer main across its frontage;or c.If the lot/parcel has no development permits, it must at least have an existing sewer main across its frontage which was either installed by the owner of said lot/parcel prior to February 26,1990 or installed by a ULID which included said lot/parcel;provided, that the side sewer needed for said lot/parcel must be less than 150 feet in length and not over 6 inches in diameter. 4.5.ULID Sewer Extensions.A ULID sewer extension is vested where the construction contract has been awarded and the Notice to Proceed has been issued prior to the effective date of this ordinance. section 5."No Net Increase"Exception.The "no net increase"exception is defined as follows: 5.1.A proposal must demonstrate that its net impact on the City's sewer system will not increase organic loading of the influent at the wastewater treatment facility. 5.2.Subject to approval by the Director,a proposal may include on-site pre-discharge mitigation,and/or it may include off-site mitigation affecting other sewer customers' properties or sewer facilities owned by the City. 5.3.Off-site mitigation,when approved by the Direc- tor,may be performed by the private party seeking the sewer connection,or it may be performed by the City through the use of funds voluntarily contributed by said private party. No such monetary contributions will be accepted by the city, however,unless a detailed mitigation plan has been previ- ously approved,together with a cost estimate for the same, and an engineering determination has been made estimating the net benefit such mitigation plans will have on the City's wastewater treatment facility.Voluntary contribu- tions shall be proportionate in amount to the mitigation which a party is seeking to achieve.Such contributions shall be administered by the city pursuant to the following rules adapted from RCW 82.02.020: ORDINANCE - 8 a.The payments shall be held in a reserve account and may only be expended to fund the off-site mitigation project identified. b.Payments shall be expended in all cases within five (5)years of collection. c.Any payment not so expended shall be refunded with interest at 12%per annum to the property owner of record at the time of the refund;however,if the payment is not expended within five years due to delay attributable to the property owner,the payment shall be refunded without interest. 5.4.As a condition of any proposal approved by the Director,the city may impose a restriction on the type of occupant which may be allowed on the property,to the extent that such restriction relates solely to the quantity or quality of sewage effluent discharged. 5.5.In analyzing a proposal's compliance with this section,the Director shall consider the ultimate impact of the development project on the city's sewer system assuming full build-out and occupancy of the project.A mitigation plan which merely states that it will defer occupancy of the project until the city,on its own,mitigates the sewer system crisis will be deemed insufficient for purposes of this section.Further,a mitigation plan which attempts to take advantage of unused vested connections applying to other properties will be deemed insufficient for purposes of this section. 5.6.If the Director of the Department of Public Works determines that a proposal complies with the "no net increase"exception,the development project may proceed with all necessary pUblic hearings,design reviews,permit approvals and construction.However,occupancy of the project shall not be allowed until the on-site or off-site mitigation measures which were part of the proposal are completed and functioning to the satisfaction of the City. section 6.SEPA Policy.This Ordinance is hereby adopted as a SEPA policy of the city of Marysville. Section 7.Tolling of Time Periods. 7.1.Preliminary plats which were approved prior to the enactment of this moratorium ordinance and its predeces- sors,but which were prohibited by said ordinances from completing construction of sewer extensions,in whole or in part,shall be granted additional time for filing final ORDINANCE - 9 plats,and the time limitations specified in RCW 58.17.140 and MMC 20.16.200 are hereby tolled throughout the effective period of said ordinances and any successors to the same. PROVIDED,the tolling of said time periods shall cease upon the effective date of this ordinance for preliminary plats, or portions thereof,which are entitled to sewer connections under Section 3 of this ordinance. 7.2.Where developers have installed public improve- ments such as utility lines,storm drainage improvements, streets,curbs,gutters and sidewalks,but the use of the same is delayed by the moratorium imposed by this moratorium ordinance and its predecessors,the developer's warranty obligation to the city with respect to such public improve- ments shall be tolled throughout the effective period of said ordinances,and any successors to the same,and shall commence running again after said ordinances have been repealed. section 8.Administrative Determinations.Administrative determinations regarding the interpretation and application of this ordinance shall be made by the Director.Any aggrieved party may appeal such a determination to the city council by filing a Notice of Appeal with the City Clerk within ten (10) days after the date of the determination.The city Council shall consider the appeal at a pUblic meeting within 30 days there- after.The decision of the City council shall be final,sUbject to the right of any aggrieved party to petition the Snohomish county Superior Court for a writ of Certiorari within 10 calendar days thereafter. section 9.Variances.The City council shall have author- ity to grant variances from any and all provisions of this ordinance.The procedures and application fees specified in Section 14.32.060(d)of the Marysville Municipal Code shall apply.The grounds for a variance from this ordinance shall be: 9.1.Unique hardship status which was not self-gener- ated;or elimination of existing health hazards as certified by the Snohomish Health District or a qualified sanitarian; and 9.2.No significant quantity of sewage will be dis- charged into the City's sewer system,and no significant organic loading will be discharged into the City's sewer system;and 9.3.No material detriment will result to pUblic health or welfare or to the environment;and ORDINANCE - 10 9.4.No violation of the DOE Consent Order will result. In emergency cases only,where there is found to be an immediate health hazard due to a failed or inoperable septic system,the Director of Public Works shall have authority to administratively grant variances sUbject to the same criteria set forth in sections 9.1 through 9.4 above.Any person denied a variance by the Director shall have the right to appeal the matter to the city council within 30 days of the Director's written decision. section 10.Effective Date.This is a public emergency ordinance necessary for the protection of public health.The effective date of this ordinance shall be June 10,1991. section 11.Review.within 90 days of the effective date of this ordinance,the Director of Public Works shall review the number of sewer connections which have been issued since January 31,1991 and review the performance of the wastewater treatment facility and make recommendations to the city council concerning the extension or modification of this ordinance.PROVIDED,no amendment or extension of this ordinance shall alter or diminish the 940 sewer connections provided under section 3. section 12.Duration.This ordinance shall automatically terminate,and be of no further force or effect,on December 31, 1991 unless extended and/or amended by action of the City council following pUblic notice and hearing. section 13.Severability.The provisions of this ordinance are severable.If any provision of this ordinance or its application to any person,property or circumstance is held invalid,such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provisions or application. ~PASSED by the city council and APPROVED by the Mayor this /()~n day of June,1991. CITY OF =--_-----'''''MAYOR Attest: ORDINANCE -11 Approved as to form: By /S~I:.UgaeV CITY ATTORNEY Date of Publication:6&19~q;L ORDINANCE -12