city of bellevue...2018/04/16 · city council study session city of bellevue meeting agenda 450...

City Council Study Session

City of Bellevue

Meeting Agenda

450 110th Avenue NE

Bellevue, WA 98004

Council Conference Room (1E-113)6:00 PMMonday, April 16, 2018

1. Executive Session

2. Study Session Items

a) Shoreline Master Program Update and Periodic Review

(For direction. Staff will provide a status update and seeks direction to

schedule a public hearing prior to adoption of the SMP.)

b) Puget Sound Energy Electrical Franchise

(For direction. Staff seeks direction to return to Council on May 7 for adoption

of a new electrical franchise agreement.)

3. Council Discussion of Upcoming Items

City Council meetings are wheelchair accessible. Captioning, American Sign Language (ASL), or

language interpreters are available upon request. Please phone at least 48 hours in advance

425-452-6168 (Voice). If you are deaf or hard of hearing, dial 711 (TR). Assisted listening devices

are available upon request. Council Conference Room (1E-113) is equipped with a hearing loop

system.

City of Bellevue Printed on 9/26/2018

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April 16, 2018

CITY COUNCIL STUDY SESSION ITEM

SUBJECTShoreline Master Program Update and Periodic Review

STAFF CONTACTSMike Brennan, Director, 452-4113Carol Helland, Code and Policy Director, 452-2724Development Services Department

Catherine Drews, Assistant City Attorney, 452-6134City Attorney’s Office

POLICY ISSUESShould the City Council schedule a public hearing on the Shoreline Master Program (SMP) Update to satisfy the Periodic Update requirements of state law before it takes final action to adopt the SMP for Department of Ecology approval? Holding a public hearing will allow the update to remain in effect for eight more years before another state-mandated review is required.

DIRECTION NEEDED FROM COUNCILACTION

☐DIRECTION

⊠INFORMATION ONLY

☐Staff will brief Council on the status of the SMP Update. Following the briefing, staff will ask Council whether to hold a public hearing on the SMP Update to satisfy the requirements for Periodic Review under state law. If the City Council holds a public hearing and adopts findings of fact demonstrating that the requirements of the Periodic Review have been met, the SMP Update will remain in effect for eight years before another state-mandated review is required to be undertaken.

BACKGROUND/ANALYSISThe City of Bellevue has been working on a comprehensive update to its SMP since 2008. Updates to the Bellevue SMP and Critical Areas Overlay were adopted by Resolution in 2015 and 2016respectively. Both of these code amendments require approval from the Department of Ecology before they can go into effect.

Public comment on Bellevue’s draft code amendments was solicited by Ecology during a public comment period that was open from September 30 through October 31, 2016, and during a public hearing held by the Department of Ecology on October 18, 2016. Comments received during Ecology’s public comment period were forwarded to the City. The City was required to respond to comments received by Ecology, and did so on January 31, 2017.

Ecology conditionally approved the Bellevue SMP Update on June 1, 2017, which means that Ecology transmitted a list of required and recommended changes to the code amendment that were deemed 2

necessary for the Bellevue SMP to be approved. Ecology accepted the vast majority of the City’s SMP Update. There were only 16 required changes and 19 recommended changes, but they were focused onsections of the SMP Update that were of the greatest interest to Bellevue’s residents. Specifically, the required changes touched on topics including the nonconforming regulations, shoreline setbacks, Ordinary High Water Mark, dock standards, and shoreline stabilization.

Since July 2017, staff has offered alternative language in response to the Ecology required changes that would maintain the intent of the code language that was originally adopted by the City Council. Stakeholders that had the greatest interest in the above-listed topics were kept apprised of the dialogue between staff and Ecology, and were invited to review the alternative language proposed to Ecology in an effort to reach consensus.

In January, an agreement in principle was reached on how to address Ecology’s required changes. In February and March, staff drafted the language necessary to memorialize the agreement in implementing code language. The results of this effort are presented in the letter and matrix that is included with this memorandum as Attachment A, and shows Ecology’s support for the SMP Update as revised.

During the course of discussions with Ecology, Bellevue staff were able to secure consent to use the SMP Update to meet the current Periodic Review requirement. Provided the City holds a public hearing and adopts findings of fact, a new update will not be compelled by Ecology for a period of eight additional years. This is beneficial to the City, because it means that the comprehensive update, unanimously recommended by the Planning Commission and adopted by City Council with significant public support will be effective for an extended period of time before a new required review will be mandated. This action will not preclude the City from initiating a periodic review in the future should the City determine one is necessary to address changing circumstances.

The final SMP Update package includes amendments to the Comprehensive Plan (Shoreline Element), a new Shoreline Overlay (Part 20.25E LUC) and updated Critical Areas Overlay (Part 20.25H LUC) of the Land Use Code, maps and supporting documents (e.g., Shoreline Inventory, Remediation Plan and Cumulative Impact Analysis). The package also includes conformance amendments to the Land Use Code addressing both the SMP and Critical Areas Overlay updates. Staff is preparing the SMP Update package in Ordinance form for final Council approval. Staff is requesting Council direction on whether to hold a public hearing to also satisfy the Periodic Update requirements under state law before it takes action to adopt the SMP Update Ordinances for final Department of Ecology approval.

OPTIONS1. Direct staff to schedule a public hearing on the SMP Update to satisfy the requirements of the state-

mandated Periodic Review before Council takes final action to adopt the SMP Update Ordinance.2. Direct staff to prepare the SMP Update Ordinance for final approval without a public hearing, and

hold a public hearing to satisfy the requirements of the state-mandated Periodic Review at a future date.

3. Provide alternative direction to staff.

RECOMMENDATIONOption 1

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ATTACHMENTA. Letter Matrix of Ecology Required and Recommended Changes and City of Bellevue Requested

Changes to the SMP Update

AVAILABLE IN COUNCIL DOCUMENT LIBRARYN/A

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STATE OF WASHINGTON

DEPARTMENT OF ECOLOGY Northwest Regional Office 3190 160th SE Bellevue, Washington 98008-5452 (425) 649-7000

April 9, 2018 Mayor John Chelminiak City of Bellevue PO Box 90012 Bellevue, WA 98009-9012 RE: DRAFT Response to Ecology Conditional Approval - Shoreline Master Program Mayor Chelminiak and City Council Members, Thank you for your continued commitment in finishing the comprehensive update of the City

of Bellevue’s (City) Shoreline Master Program (SMP). We know this has been a big effort by

the City and engaged stakeholders and we are very appreciative of everyone’s dedication to

finish this important work.

Ecology has reviewed the City’s March 23rd, 2018 DRAFT response and want to encourage the

City to move forward in updating the ordinance and formally responding to Ecology’s June 1,

2017 Conditional Approval. This recommendation is based on our conclusion that the City’s

response including a number of alternative proposals are consistent with the scope and intent

of Ecology’s original changes and can be incorporated into the final approved SMP, pursuant

to RCW 90.58.090(2)(e)(ii). The following documents attached to this letter describe in detail

Ecology’s assessment of the City’s DRAFT response:

1. Attachment B-revised Lists Ecology’s original Required Changes, the City’s DRAFT

response either accepting or proposing an alternative, and Ecology’s assessment of

any alternatives to be formally incorporated into the final approved version of the

SMP.

2. Attachment C-revised lists Ecology’s original Recommended Changes along with a few

additional City requested changes that were identified after Ecology issued the June

2017 conditional approval. This document also lists the City’s DRAFT response either

accepting, rejecting, or proposing an alternative to Ecology’s changes and a

concluding assessment of all the changes. 5

KOlson

Sticky Note

Accepted set by KOlson

The Honorable John Chelminiak April 9, 2018 Page 2

This letter is not a final formal Ecology approval of the SMP, but rather is intended to

encourage the City Council to move forward in updating the ordinance and formally

submitting the response to Ecology for a final decision by our agency director. As discussed

with your staff, submittal of the City’s formal response will allow Ecology to move forward in

issuing our final action approving the City’s SMP, which will then dictate the effectiveness

date of the new program.

Please do not hesitate to contact me, should you or your staff have any questions regarding

the remaining shoreline master program update process. I can be reached at

[email protected] or by phone at (425) 649-7096.

Sincerely,

Joe Burcar, Section Manager SEA Program at the Northwest Regional Office e-cc: Michael Brennen, City of Bellevue Carol Helland, City of Bellevue Tim Gates, Ecology

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mailto:[email protected]

ATTACHMENT B REVISED - DEPARTMENT OF ECOLOGY REQUIRED CHANGES, CITY OF BELLEVUE’S RESPONSE (ORD. #TBD), AND ECOLOGY’S FINAL ACTION

Page 1 of 6

The following changes list: (1) Ecology’s original Required Change (Conditional Approval 6/1/2017), (2) The City of Bellevue’s response (insert date) either accepting or proposing alternative changes, and (3) Ecology’s Final Action.

ITEM SMP PROVISION (1) ECOLOGY’S ORIGINAL REQUIRED CHANGE AND RATIONALE – JUNE 1, 2017 (2) THE CITY OF BELLEVUE’S RESPONSE (3) ECOLOGY’S FINAL ACTION

SECTION 1: AUTHORITY – 20.25E.010 General

1 20.25E.010 B. 1. c.

SMP Elements

c. Part 20.25H LUC, Critical Areas Overlay District (as set forth in the Land Use Code on [INSERT DATE of ordinance adoption]) exclusive of sections listed in 20.25E.010.C.1.c.

Ecology Rationale: This amendment is intended to clarify which sections of the City’s Critical Areas Ordinance are formally included as part of the updated SMP. Under WAC 173-26-191(2)(b), “shoreline master programs may include other policies and regulations by referencing a specific, dated edition” and when the incorporated provision is consistent with the SMA, or SMP-Guideline requirements.

CITY ACCEPTS ECOLOGY’S CHANGE. ECY Change Accepted: amended text to be part of the approved SMP.

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20.25E.010 C. 1. d.

Scope

Relation to other Regulations

d. The following regulations from the Critical Areas Overlay Code, LUC 20.25H (as set forth in the Land Use Code on [INSERT DATE of ordinance adoption]) now or as hereafter amended, do not apply in the Shoreline Overlay District:

i. 20.25H.190 Reasonable use exception – Purpose.

ii. 20.25H.195 Reasonable use exception – Process.

iii. 20.25H.200 Reasonable use exception – Applicability.

iv. 20.25H.205 Reasonable use exception – Performance standards.

Ecology Rationale: Similar intent to item #1 (above). The identified changes clarify that the listed exceptions from the City’s Critical Areas Ordinance will not be implemented through the updated SMP, as the exceptions are not authorized by the SMA or SMP-Guidelines.


SECTION 2: USES – 20.25E.040 Nonconforming Shoreline Conditions

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20.25E.040 G.2.c.

Regulations Applicable to

Nonconforming Shoreline Dev.

c. Limitations on Alterations. Alterations may be approved only if consistent with the following limitations:

i. No increase in structure footprint shall be permitted.

ii. No increase in net square footage shall be permitted.

iii. No increase in parking areas or other non-structural exterior site development shall be permitted.

iv. No footprint associated with a nonconforming shoreline development shall be moved any distance, unless the movement reduces nonconformities to the SMP, and ecological functions are restored in the areas vacated pursuant to a mitigation plan approved by the Director under LUC 20.25E.060.D (Mitigation Requirements and Sequencing).

v. Alterations are consistent with Shoreline Modifications as set forth in LUC 20.25E.080 to the maximum extent practical.

Ecology Rationale: The identified language provided in subsection v. is added for internal consistency with LUC 20.25E.080, which implements requirements of WAC 173-26-231 in managing shoreline modifications. Therefore, the change is also intended to ensure that shoreline modification provisions are considered in managing redevelopment of existing shoreline development that may be nonconforming to current development standards.


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20.25E.040 G. 2. e.


Regulations

e. Required Improvements associated with Alterations. When alterations meet the threshold in paragraph G.2.d of this section, nonconforming shoreline development shall be brought toward compliance in the following areas:

i. Accessory Parking, Loading Space and Maintenance Access requirements as set forth in LUC 20.25E.060.H.

ii. Public Access requirements as set forth in LUC 20.25E.060.I.

iii. Water quality, stormwater, and nonpoint pollution requirements as set forth in LUC 20.25E.060.L.

iv. Shoreline Modifications as set forth in LUC 20.25E.080.

Ecology Rationale: (Same as above) The change is necessary for internal consistency with LUC 20.25E.080 which implements requirements of WAC 173-26-231 in managing shoreline modifications.


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Page 2 of 6


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20.25E.040 G. 3. c.


Regulations

c. Limitations on Replacements. Replacement of a nonconforming shoreline development in the O or OLB Land Use Districts may be approved only if consistent with the following limitations:

i. Replacement structures shall only be permitted to accommodate a shoreline use allowed pursuant to LUC Chart 20.25E.030.

ii. No increase in structure footprint shall be permitted.

iii. No increase in net square footage shall be permitted.

iv. No increase in parking areas or other non-structural development shall be permitted.

v. The area of the replacement structure footprint may be moved to a less sensitive portion of the site if the movement reduces nonconformities to the SMP or identified critical areas, and shoreline vegetation or critical area functions are restored in the areas vacated pursuant to a mitigation plan approved by the Director under LUC 20.25E.060.D (Mitigation Requirements and Sequencing).

vi. Consistent with Shoreline Modifications as set forth in LUC 20.25E.080 to the maximum extent practical.

Ecology Rationale: (Same as above) The change is necessary for internal consistency with LUC 20.25E.080 which implements requirements of WAC 173-26-231 in managing shoreline modifications.


SECTION 3: DEVELOPMENT REGULATIONS – 20.25E.050 Dimensional Requirements

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20.25E.050 B. 2. Measurement of

Shoreline Structure Setbacks

On Lake Sammamish, the shoreline structure setback may be measured landward from elevation determined to be equivalent to ordinary high water mark as provided in RCW 90.58.030(2)(c), 31.2 NAVD 88 on a horizontal plane and to a point that results in the required dimension, or from that point identified in a site-specific ordinary high water mark determination prepared by a qualified professional.

Ecology Rationale: The change is intended to maintain consistency with RCW 90.58.030(2)(c) in appropriately identifying the Ordinary High Water Mark to determine shoreline jurisdiction and administer other SMP provisions, such as measuring structure setbacks. See further discussion under “OHWM elevation” in the Findings & Conclusions (Attachment B).

City Alternative Requested: The City’s response requests that Ecology consider the following alternative to the required change:

On Lake Sammamish, the shoreline structure setback may be measured landward from elevation 31.2 31.8 NAVD 88 on a horizontal plane and to a point that results in the required dimension, or from that point identified in a site-specific ordinary high water mark determination prepared by a qualified professional.

City Rationale. The City’s alternative is consistent with the purpose and intent of ECY required change because the 31.8 NAVD 88 elevation for structure setbacks is supported by studies conducted by the City in 2004, while providing shoreline residents the flexibility to conduct a site-specific OHWM determination.

City Alternative Accepted: The alternative references an elevation supported by the City’s 2004 Ordinary High Water Mark (OHWM) study (The Watershed Company, 2004), which has already been accepted by Ecology as equivalent to OHWM and acceptable for administrative use in measuring setbacks, etc..

Therefore, the alternative can be accepted as consistent with the purpose and intent of ECY’s original change and incorporated into the approved SMP pursuant to WAC 173-26-120(3)(b)(ii).

SECTION 3: DEVELOPMENT REGULATIONS – 20.25E.065 Residential Shoreline Requirements

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20.25E.065 E. 1. b.

Residential Structure Setback

Measurement

On Lake Sammamish, the shoreline structure setback may be measured landward from an elevation 31.2NAVD 88 equivalent to the ordinary high water mark measured on a horizontal plane and to a point that results in the required dimension, or from that point identified in a site specific ordinary high water mark determination prepared by a qualified professional at the sole discretion of the applicant.

Ecology Rationale: Same rationale as item 6 – above.


On Lake Sammamish, the shoreline structure setback may be measured landward from a elevation 31.2 31.8 NAVD 88 on a horizontal plane and to a point that results in the required dimension, or from that point identified in a site-specific ordinary high water mark determination prepared by a qualified professional.

City Rationale. Refer to rationale provided for item 6 above.

City Alternative Accepted: Same as item 6 above.

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20.25E.065 E. 2. a. Residential

Structure Setback Allowances within 25 feet of OHWM.

a. Expansion of the exterior footprint of an existing legally established structure within the25 feet of the OHWM-foot shoreline structure setback is allowed when:

i. The modification, addition, replacement or related activity does not increase the existing total footprint of the residence and associated impervious surface laying within the shoreline structure setback by more than 200 square feet over the existing before [insert effective date of ordinance]; and […]

Ecology Rationale: The change reflects amendments requested by the City in response to comment C-5 as provided in Attachment D, clarifying the limited circumstances where expansion is allowed for structures currently located within 25-feet of the OHWM.


a. Expansion of the exterior footprint of an existing legally established structure within the25 feet of the OHWM-foot shoreline structure setback is allowed when:

i. The modification, addition, replacement or related activity does not increase the existing total footprint of the residence and associated impervious surface laying within the shoreline structure setback by more than 200 square feet over the existing before [insert effective date of ordinance]; and […]

ii. No portion of the modification, addition or replacement is located closer to elevation 31.8 NAVD or the OHWM; and […]

City Rationale. Added clarification on OHWM similar to rationale provided for item 6 above.

City Alternative Accepted: Same as item 6 above.

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20.25E.065 F. 8. h. i. Residential

Dock grating mitigation.

Replacement of solid decking with grated decking in the nearshore area when not already required as mitigation for associated dock expansion or dock replacement earns 50 units of mitigation credit.

Ecology Rationale: The clarifying change is intended to ensure appropriate allocation of mitigation credit for voluntary actions not already required by a different section of the SMP. Therefore, the clarification is necessary satisfy no net loss requirements in WAC 173-26-186 (8) by ensuring appropriate application of compensatory mitigation.


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20.25E.065.H.4 Chart

New and Reconfigured

Residential

Dock Standards

Ecology’s Required Change: City Alternative Requested: The City’s response requests that Ecology consider the following alternative to the required change:

City Alternative Accepted: The City’s alternative incorporates the following changes:

Accepts Ecology change by incorporating footnote “(5)” into the maximum dock size;

Accepts Ecology change by replacing the “5-ft” Maximum Walkway Width with “4-ft”

Adds footnote “(6)” clarifying when flexibility on Walkway Width can be considered. See item 11 (below) for details;

Re-incorporates reference to “State and Federal Approval” described in footnote (4).

Ecology concludes that the City’s alternative can be accepted, as the clarifications provided in footnote (6) limit consideration of walkway widths wider than 4-ft, to limited circumstances including deep bathymetry, handicap/disability accommodations, or replacement actions that result in a net reduction to nearshore (within 30’ of OHWM) impacts. These clarifications will ensure consistency with SMA goals and alleviate the need for project level review through a shoreline variance.

Lake Washington

(1):

Lake Sammamish

(1):

Phantom Lake (1):

Residential Canal Env. (1)

Alt. Standard or Limitation -When

Allowed

Lake Washington

(1):

Lake Sammamish

(1):

Phantom Lake (1):

Residential Canal Env. (1)

Alt. Standard or Limitation -

When Allowed

Maximum Dock Size – sq. ft.

480 sq. ft. (5) 480 sq. ft. (5) 250 sq. ft. 100 sq. ft. State and Federal

Approval (4)

Maximum Dock Size – sq. ft.

480 sq. ft. (5) 480 sq. ft. (5) 250 sq. ft. 100 sq. ft. State and

Federal Approval (4)

Maximum Walkway width

5’4’ for portion of pier or dock

located within 30 ft. of the OHWM;

otherwise, 6 ft. for walkways

5’4’ for portion of pier or dock

located within 30 ft. of the OHWM; otherwise, 6 ft. for walkways

5’ Walkway Prohibited

N/A

State and Federal Approval (4) Shoreline

Variance (3) Maximum Walkway width

5’4’ for portion of pier or dock located within

30 ft. of the OHWM;

otherwise, 6 ft. for walkways (6)

5’4’ for portion of pier or dock located within

30 ft. of the OHWM;

otherwise, 6 ft. for walkways (6)

5’ Walkway Prohibited

N/A

State and Federal Approval

(4)

Ecology Rationale: The addition of footnote “(5)” is described below under item 11. The change to maximum width standards from 5-feet to 4-feet is necessary to satisfy Shoreline modification requirements in WAC 173-26-231(3) (b). The addition of the Shoreline Variance requirement for deviation to the maximum width standard is intended to minimize deviation from the 4-foot width standard and preserve the sequence of review starting with project authorization by local government before proceeding to state and federal authorization. See additional discussion on Shoreline Modifications associated with Pier/Dock structures in the Findings and Conclusions (Attachment B).

City Rationale: The City’s alternative language ensures the SMP is consistent with the purpose and intent of Ecology’s change. The City’s alternative is similar to options Ecology has accepted in other Lake Sammamish and Lake Washington jurisdictions. Flexibility is allowed in walkway width in the nearshore area when impacts to functions and values are avoided (i.e., as a result of the water depth or the limited applicability of exemptions to accommodate a documented disability). In the case of dock replacements, existing nearshore impacts will be decreased and mitigation will be required. Ecology-approved criteria eliminate need for shoreline variance. Therefore, approval by state and federal authorities is appropriate.

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20.25E.065.H.5 Chart (Notes)

New/Reconfigured Res. Dock Standards

(5) Existing dock size (total square footage) may be maintained for reconfigured docks as long as other requirements of this chapter can be satisfied.

Ecology Rationale: In recognition that most of the existing docks along Lake Washington and Lake Sammamish are much larger than the 480-square-foot limit required for new docks, proposed footnote (5) is intended to clarify that a reconfigured dock can maintain the overall square footage of the existing dock.


Notes: New and Reconfigured Residential Dock Standards

(1) Floating docks may be approved when the use of a fixed dock is not feasible.

(2) No private dock or other structure waterward of the ordinary high water mark […] for the use or activity.

(3) These standards or limitations may be modified through approval of a Variance to the Shoreline Master Program (20.25E.190 LUC).

(4) These standards or limitations may be modified through […] their respective permitting processes.

(5) Existing dock size (total square footage) may be maintained for reconfigured docks as long as other requirements of this chapter can be satisfied.

(6) The 4’ width for near shore walkway may be increased to 5’ if one of the following criteria is met.

(a) Water depth is 4.85 feet or more, as measured from the ordinary high water level.

(b) A resident of the property has a documented permanent State disability as defined in WAC 308-96B-010 (5).

(c) For replacement piers or docks only, there is a net reduction in near shore overwater walkway coverage and native vegetation is planted and established within 10 feet of the shoreline at a ratio of 3:1 for the near shore overwater walkway coverage wider

ECY Change Accepted: As described in item 10 (above), the City’s alternative incorporates Ecology’s change by incorporating footnote “(5)” and provides further clarification on the Maximum Walkway Width through footnote “(6)”.

Footnote “(6)” is found to be consistent with Ecology’s required changes and applicable state requirements, in that consideration of widths wider than 4’ are limited to defined circumstances (see rationale above). This approach is similar to what has been approved in updated SMP’s administered by other Lake Washington jurisdictions. Further, implementation of these provisions to pier/dock replacement actions, is expected to result in reductions to overwater coverage within nearshore areas over time, consistent with the objectives of Shoreline Modification provisions in the State Guidelines at WAC 173-26-231.

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Page 4 of 6


than 4’ (maximum of 90 square feet). The required vegetation shall be in addition to any shoreline vegetation mitigation credited in Section 20.25E.065.F.

(d) A site-specific report is prepared by a qualified professional demonstrating no net loss of ecological function.

City Rationale: Same rationale as item 10 (above).

Therefore, Ecology concludes that the City’s alternative is consistent with the purpose and intent of the required change and can be incorporated into the final version of the approved SMP.

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20.25E.065 H. 5. Residential

Dock Repair

5. Repair and Replacement of Existing Residential Docks.

Existing legally established residential docks may be repaired or replaced in the existing configuration, provided that less than 50 percent of the existing support piles are not replaced within a five-year period and the materials used for dock repairs shall meet the requirements established in paragraph 20.25E.065.H.3.a. Repairs exceeding this threshold shall be reviewed as a new, or reconfigured dock, subject to requirements established in section 20.25E.065.H.4.

Ecology Rationale: The changes are intended to clarify a necessary distinction between repair and reconfiguration (replacement) of an existing residential dock. The 50-percent threshold is intended to match similar requirement in the SMP applicable to non-residential docks (See LUC 20.25E.080.E.5.b.ii.).


5. Repair and Replacement of Existing Residential Docks.

Existing legally-established residential docks may be repaired or replaced in the existing configuration and footprint, provided that the following requirements are met:

a. Mmaterials used for dock repairs shall meet the requirements established in paragraph 20.25E.065.H.3.a;.

b. Any decking that is replaced shall be grated to allow for light transmission;

c. Any piles that are replaced shall be the minimum diameter and at the maximum spacing feasible to support the dock configuration; and

d. Projects that replace 75 percent or more of the support piles in the near shore area within a 5 year period shall meet the requirements applicable to reconfigured residential docks contained in LUC Chart 20.25E.065.H.4 of this section.

City Rationale: The City’s alternative is consistent with Ecology’s change because its draws a clear distinction between repair and reconfiguration of an existing residential dock. Replacements that result in reconfiguration of a dock are addressed in Regulation 4, and Regulation 5 is about repair projects where the entire structure is not being removed and replaced, and any repair or replacement is confined to the current footprint and configuration. The city’s acceptance of Item 15 (below) would ensure repair and replacement are adequately defined. The City’s alternative to Item 12 adds clarifications about decking and piles that ensure repair actions mitigate for impacts. As clarified, the City’s alternative language is consistent with the purpose and intent of Ecology’s required change.

ECY Change Accepted: As described in items 10 and 11 (above), the City’s alternative clarifies an applicant’s minimum obligation in managing ‘repair” or “replacement” work to an existing legally established pier or dock. The clarifications provided in the City’s alternative encourage improvements to nearshore environments through requiring use of light transmitting grated decking and minimization of in-water structure through use of smaller or few number of support piles. The alternative also incorporates a “75%” threshold common to other local SMP’s and listed in WAC 173-27-080 as a default threshold in managing replacement of nonconforming structures.

Therefore, Ecology concludes that the City’s alternative is consistent with the purpose and intent of the required change and can be incorporated into the final version of the approved SMP.

SECTION 3: DEVELOPMENT REGULATIONS – 20.25E.080 Residential Shoreline Modifications

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20.25E.080 F. 5. Modifications

Repair of Existing Shoreline

Stabilization

Repair is defined as any actions to less than 75 percent of the existing structure over a five-year period that are designed to restore a stabilization measure to its original condition and configuration provided that damage and destruction is not so significant as to cause loss of structural integrity sufficient to jeopardize its erosion protection function. Cumulative repairs within a five-year period exceeding this threshold shall be considered a complete replacement subject to the standards set forth in paragraph F.6 of this section.

Ecology Rationale: The changes are necessary to clarify the extent of shoreline stabilization repair actions, to appropriately distinguish maintenance from a complete replacement of an existing stabilization structure. The SMA allow for repair and maintenance of existing structures, but clarifies in WAC 173-26-231(3)(a)(iii)(C) of the SMP-Guidelines additional considerations that are necessary prior to authorizing in-kind replacement of stabilization structures. See further discussion in Attachment B.


5. Repair of Existing Shoreline Stabilization.

Repair is defined as any actions to less than 75 percent of the existing structure over a five-year period that are designed to restore a stabilization measure to its original condition and configuration provided that damage and destruction is not so significant as to cause loss of structural integrity sufficient to jeopardize its erosion protection function. Cumulative repairs within a five-year period exceeding this threshold shall be considered a complete replacement subject to the standards set forth in paragraph F.6 of this section.

City Rationale: The City’s alternative is consistent with Ecology’s change because it accepts the 75% threshold which should allow most common repairs to occur without being deemed replacements. Similar thresholds are used by other communities along Lake Washington, such as Medina and Kirkland. The provision was also amended to remove the requirements to evaluate structural integrity, thus eliminating the possibility for conflicting interpretations.

City Alternative Accepted: The alternative includes language provided in ECY’s required change, but also removes some of the original text referencing “structural integrity” to avoid the possibility of conflicting interpretations of the provision. The alternative maintains the purpose and intent of ECY’s required change and therefore can be accepted through the final action on the SMP pursuant to WAC 173-26-120(3)(b)(ii).

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20.25E.080 F. 6. Modifications

Stabilization Replacement

6. Replacement of Existing Shoreline Stabilization. Except in situations where an existing residential structure is located within 10 feet of the ordinary high water mark Aall legally established shoreline stabilization measures on Lake Washington and Lake Sammamish are presumed when determined to be necessary to protect existing shoreline structures andor property and may be replaced with a comparable soft stabilization or a hard stabilization structure in accordance with standards set forth in paragraph F.4 of this section. If hard stabilization structures are determined to be necessary, then the

City Alternative Requested: The City’s response requests that Ecology consider replacing the original text in provision 20.25E.080.F.6, with the following alternative standards:

6. Replacement of Existing Shoreline Stabilization All legally-established shoreline

stabilization measures on Lake Washington and Lake Sammamish are presumed necessary to protect existing shoreline structures and property and may be replaced with a comparable structure when the proposal meets following applicable requirements. Replacement means the

City Alternative Accepted: The alternative maintains the purpose and intent of ECY’s required change in requiring a demonstration of need of site specific factors for replacement stabilization structures located more than 10-feet upland of the OHWM. Further, the alternative in concert with the changes agreed

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existing stabilization may be replaced with a comparable structure when the proposal meets applicable requirements.

Ecology Rationale: Similar to item 13 (above) the changes are intended to clarify a necessary distinction between repair and replacement of shoreline stabilization measures. In addition, the changes reflect the intent of WAC 173-26-231(3)(a)(iii)(C) in applying appropriate consideration of alternative stabilization measures for stabilization replacements, based on site specific factors..

An exception has been added for situations where an existing upland structure is located close (within 10’) of the shoreline, in which case a demonstration of need for stabilization is recognized, for which in-kind replacement should be allowed without further consideration of alternative stabilization measures.

construction of a new structure to perform a shoreline stabilization function of an existing structure that can no longer adequately serve its purpose

a. Comparable Size. Replacements shall not expand the lateral extent, add to the height or increase the width of an existing stabilization measure unless otherwise permitted by the terms of this paragraph. Refer to LUC 20.25E.080.F.4 for requirements applicable to enlarged shoreline stabilization measures. Where an existing residential structure is located within 10 feet of the Ordinary High Water Mark, legally established shoreline stabilization measures are presumed necessary to protect existing residential structures and property, and may be replaced with a comparable structure. b. Comparable Location. Except in situations where an existing residential structure is located within 10 feet of the ordinary high water mark, in accordance with RCW 90.58.100(6) and WAC 173-26-231(3)(a)(iii)(C), all legally established existing Shoreline Stabilizations may be replaced with similar structure(s) if there is a demonstrated need to protect principal use(s), structure(s), or property from erosion caused by currents or waves. A qualified professional shall prepare a written report demonstrating the need to protect principal use(s), structure(s), or property with similar structure(s) from erosion caused by currents or waves. The report shall consider the following factors:

(i) Replacement vertical walls or bulkheads shall not encroach waterward of the ordinary high water mark or existing structure unless the residence was occupied prior to January 1, 1992, and there are overriding safety or environmental concerns. In such cases, the replacement structure shall abut the existing shoreline stabilization structure An assessment of the necessity for stabilization, considering site-specific conditions such as water depth, orientation of the shoreline, wave fetch, and location of the nearest structure.

ii. Where an angled riprap rock revetment is selected as the replacement for a vertical wall or bulkhead, the structure may be constructed as far waterward as necessary to ensure the ordinary high water mark is no further landward than previously existed on the wall or bulkhead being replacedAn assessment of erosion potential resulting from the action of waves or other natural processes operating at or waterward of the OHWM in the absence of the shoreline stabilization.

iii.) An assessment of the feasibility of using nonstructural or soft structural stabilization measures in lieu of hard structural shoreline stabilization measures. Soft stabilization may include the use of gravels, cobbles, boulders, and logs, as well as vegetation.

c. Shoreline structures may be replaced with similar structure when the proposal meets the requirements of F.6.c.i through iv of this paragraph. Proposals not meeting the requirements this paragraph shall be considered new structures and must meet the requirements of paragraph F.4 of this section.

c.d. Comparable Design.

i. Existing vertical shoreline stabilization measures may not be replaced with a similar structure unless […] to demonstrate that there is no practical alternative.

ii. An angled riprap rock revetment with 1:1 slope or less […] constructed below ordinary high water.

iii. Stairs or other reasonable access to the water […] than the replacement structure.

iv. Nothing in this requirement prevents vertical […] described at 20.25E.080.4.c and d.

d.e. Limitation on Comparability. Replacement structures […] assures no net loss of shoreline ecological functions.

City Rationale: Similar rationale as item 13 (above). In addition, the alternative addresses Ecology’s required change by incorporating a “demonstration of need” process to evaluate replacement shoreline stabilization proposals, based on a need to protect existing primary structures, located more than 10’feet landward of the shoreline edge.

to in item 13 (above) clarify the difference between a stabilization “repair”, versus a “replacement” action, necessary to consistently administer these SMP provisions.

Therefore, the alternative can be accepted through the final action on the SMP pursuant to WAC 173-26-120(3)(b)(ii).

11

http://www.codepublishing.com/WA/Kirkland/cgi/defs83.pl?def=113

http://www.codepublishing.com/WA/Kirkland/cgi/defs.pl?def=980






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SECTION 5: PERMITS AND DECISIONS – 20.25E.160 Shoreline Substantial Development Permits

15

20.25E.160 E. 2. Review Process

Special Shoreline Reports

Requests for modifications to the requirements of this part through a special shoreline report shall be processed through a shoreline substantial development permit, shoreline variance, or shoreline conditional use permit, depending on the proposal.

Ecology Rationale: The identified clarification adds a reference to all three shoreline permit types that could potentially be associated with a project where a modification to a SMP provision may be requested.


16

20.25E.160 G. Review Process

Special Shoreline Reports

Construction pursuant to an effective Shoreline Substantial Development Permit, Shoreline Conditional Use Permit, or Shoreline Variance shall not begin and is not authorized until 21 days from the date of filing as defined in RCW 90.58.140(6) and WAC 173-27-130(6), or until all Shoreline Hearings Board petition for review proceedings initiated within 21 days from the date of filing have been terminated; except as provided in RCW 90.58.140(5)(a) and (b).

Ecology Rationale: The identified change is necessary to clarify timing of appeal period for all three types of shoreline permits, not just related to a Substantial Development Permit.


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City of Bellevue response to Department of Ecology Recommended Changes - (Ord. TBD)

ITEM SMP PROVISION ECOLOGY ORIGINAL RECOMMENDED CHANGE (6/1/2017) CITY RESPONSE (ORD. #TBD) ECOLOGY FINAL ACTION

Section 1: Authority – 20.25E.010 General

A

I. Authority C. 1. b. ii. Critical Area Conflicts

In the event of a conflict between the provisions of this Part 20.25E LUC except provisions listed in 20.25E.010.C.1.c. and Part 20.25H LUC (as set forth in the Land Use Code on [INSERT DATE of ordinance adoption] which is incorporated by this reference into the SMP), the provisions providing the most protection to critical area functions and values shall prevail.

Ecology Rationale: Suggested cross reference to remind the reader as to which sections of the City’s Critical Areas Ordinance do not apply within shoreline jurisdiction. Also see item 2 in Required Change (Attachment B).

REJECTED RECOMMENDED CHANGE: The City has decided not to incorporate Ecology’s

Recommended Change.

Ecology Final Action: These changes” were not identified as necessary to ensure compliance with state requirements. The City’s decision to not include the change, does not affect Ecology’s decision in approving the updated SMP. Therefore, the original language submitted by the City, shall be maintained in the final approved version of the SMP.

B

20.25E.010 C. 1. c.

Regulations Not Applicable in the Shoreline Overlay

District.

i. Uses, except as specifically noted in LUC 20.25E.030:

1. 20.10.400 Use chart described – Interpretation;

2. 20.10.420 Interpretation of land use chart by Director; and

3. 20.10.440 Land use charts.

ii. General Development Standards 1. 20.20.010 Minimum Greenscape Percentage of Front Yard Setback and associated Note

40

2. 20.20.025 within the shoreline structure setback required by LUC Chart 20.25E.050.A and

Chart 20.25E.065.C.

3. 20. 20.840 Subordinate Uses.

4. 20.20.900 within the vegetation conservation area defined pursuant to LUC

20.25E.065.F.5.

Ecology Rationale: Recommend adding outline numbering to the individual code sections and the general titles of referenced sections for clarity in identifying regulations/policies that are or are not considered part of the SMP.

ALTERNATIVE RECOMMEND CHANGE – The City accepted and will incorporate Ecology

recommendation and have updated the outline numbering to reflect proper numbering convention consistent with their Land Use Code.

i. Uses, except as specifically noted in LUC 20.25E.030:

(1) 20.10.400 Use chart described – Interpretation; (2) 20.10.420 Interpretation of land use chart by Director; and (3) 20.10.440 Land use charts.

ii. General Development Standards

(1) 20.20.010 Minimum Greenscape Percentage of Front Yard Setback and associated Note 40

(2) 20.20.025 within the shoreline structure setback required by LUC Chart 20.25E.050.A and Chart 20.25E.065.C.

(3) 20. 20.840 Subordinate Uses. (4) 20.20.900 within the vegetation conservation area defined pursuant to LUC

20.25E.065.F.5.

City Alternative Accepted: The alternative requested by the City, accepts Ecology’s change, but also corrects the outline numbering format to be consistent with other City land-use provisions.

C

20.25E.010.C.2.e. Shoreline Overlay

District Description

e. On lakes Sammamish and Washington, waterward from the ordinary high water mark or specified vertical elevation representing the ordinary high water mark to the City’s jurisdictional boundary.

Ecology Rationale: Suggested clarification to ensure compliance with RCW 90.58.030(2)(f) defining “shorelines of statewide significance” through a reference specifically to “ordinary high water mark”.

ACCEPTED RECOMMENDED CHANGE: The City accepted and will incorporate Ecology’s

recommendation to this provision.

ECY Change Accepted: amended text to be part of the approved SMP.

D 20.25E.020 A. 2.

For uses that require alteration of the shorelines of the state, in those limited conditions when determined to be consistent with this program, alteration is may be authorized, priority was given for:

a. Single-family residences and their appurtenant structures;

b. Shoreline recreational uses, including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines;

c. Commercial development that is particularly dependent on its location on or use of the shorelines; and,

d. Other preferred uses as defined in RCW 90.58.020, including water oriented uses and development that will provide an opportunity for substantial numbers of the people to enjoy the shoreline.

Ecology Rationale: Clarifications suggested to reiterate use preferences described in RCW 90.58.020 and WAC 173-26-241(2)(a)(iii).


Recommended Change.

Ecology Final Action: Same as item “A” above.

E

20.25E.020 C. 2. a. Director’s Authority

Written interpretations associated with this program will be prepared in consultation with Ecology pursuant to WAC 173-26-140.




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Ecology Rationale: The suggested change is intended as a reminder to the statement in WAC 173-26-140, requiring local jurisdictions to consult with Ecology on administrative interpretations affecting an updated SMP.

SECTION 2: USES – 20.25E.040 Nonconforming Shoreline Conditions

F

20.25E.040 B.

Nonconforming Shoreline Conditions

A nonconforming shoreline condition refers to a site that contains either a nonconforming shoreline use or nonconforming shoreline development which was lawfully established or and constructed prior to [insert effective date], as defined in this paragraph B and based on documentation provided pursuant to paragraph D of this section.

1. Nonconforming Shoreline Use. The use of a structure or land which was permitted when established, in existence on [insert effective date], and not discontinued or destroyed, but is not otherwise allowed under LUC Chart 20.25E.030.

2. Nonconforming Shoreline Development. A structure or non-structural exterior site development which was permitted when established, in existence on [insert effective date], and not discontinued or destroyed, but does not otherwise comply with Part 20.25E LUC.

Ecology Rationale: Suggested change to ensure internal consistency with subsection 1 and 2 (below), provision 20.25E.040.D. and RCW 90.58.620. The change would clarify that existing nonconforming conditions should be found to be both “lawfully established” and constructed or used prior to the adoption of this program.


Recommended Change.


G

20.25E.040 C. 6.

In event of a conflict between this section LUC 20.25E.040 (Nonconforming Conditions) and Part 20.25H LUC (Critical Areas Overlay District), the requirements of 20.25E.010.C.1.b.ii. and this section LUC 20.25E.040 shall control.

Ecology Rationale: The identified cross reference is recommended to ensure that any conflicts between critical area provisions and the SMP will be addressed in a manner that is internally consistent with this SMP and in compliance with WAC 173-26-221(2)(a)(ii), RCW 90.58.090(4), and RCW 36.70A.480(3).

ACCEPTED RECOMMENDED CHANGE: The City accepted and will incorporate Ecology’s recommendation to this provision.


H

20.25E.040 D. 1.

Documentation that the nonconforming shoreline condition was permitted when established includes, but is not limited to, the following:

Ecology Rationale: The suggestion to delete “permitted when” is intended to simplify the description of the City’s process in determining if an existing nonconforming use was “established.”




SECTION 3: DEVELOPMENT REGULATIONS – 20.25E.050 Dimensional Requirements

I

Chart 20.25E.050.A (6)

(6) The Shoreline Structure Setback is modified to account for encroachments by existing structures underthrough compliance with the Footprint Exception of LUC 20.25E.065.E.1.c and may also be reduced to a minimum of 25 feet provided that impacts to existing shoreline vegetation are mitigated pursuant to the Vegetation Conservation requirements contained in LUC 20.25E.065.F.

Ecology Rationale: Clarifying text suggested to avoid confusion in administering this provision.




Section 3: Development Regulations – 20.25E.060 General Requirements

J

20.25E.060.B.1.

General Regulations

No Net Loss

No Net Loss Required. Shoreline uses and development are required to ensure no net loss of ecological functions and processes through compliance with applicable provisions of this chapter.

Ecology Rationale: The change clarifies how No Net Loss will be achieved through consideration of other general standards such as mitigation sequence in LUC 20.25E.060.D.2.

ALTERNATIVE RECOMMEND CHANGE – The City accepts and will incorporate Ecology’s Recommended

Change, with one additional clarifications replacing “Chapter”, with “Part”, as the shoreline overlay is a Part in the Land Use Code and not a Chapter. The revised provision will read as follows:

No Net Loss Required. Shoreline uses and development are required to ensure no net loss of ecological functions and processes through compliance with applicable provisions of this Part

City Alternative Accepted: The City’s alternative accepts Ecology’s change and provides one (non-substantive) clarification.

K

20.25E.060.D. 1

Mitigation Requirements and

Sequencing

Mitigation Plans – When Required: Mitigation plans are required as part of an application for a Shoreline Conditional Use (LUC 20.25E.180), a Shoreline Variance (LUC 20.25E.190), a Special Shorelines Report or pursuant to specific use and shoreline modification regulations in LUC


Recommended Change.

Ecology Final Action: Same as item “A” above. 14

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20.25E.065 (Residential Shoreline Regulations), 20.25E.070 (Specific Use Regulations) and 20.25E.080 (Shoreline Modifications), or when unforeseen impacts to shoreline ecological functions are identified and mitigation is determined to be necessary by the Director. Applicants shall submit as part of the application package, a mitigation plan meeting the performance criteria of this paragraphsection. Mitigation plans shall be approved as part of the permit required for the underlying project. To the extent applicable, analysis of environmental impacts and identification of required mitigation shall be consistent with the rules implementing the State Environmental Policy Act (refer to WAC 197-11, Bellevue Environmental Procedures Code Chapter 22.02 BCC, and LUC 20.35.200 through 250).

Ecology Rationale: The identified changes are suggested to clarify which sections/provisions may trigger creation of a mitigation plan and an additional statement reiterating the Directors authority to require a mitigation plan pursuant to LUC 20.25E.060.B.2.

L

20.25E.060 D. 5. e. Contingency Plan

The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met and such failure would result in significantly impacting shoreline ecological functions.

Ecology Rationale: Minor edit suggested for improved clarity.

ALTERNATIVE RECOMMEND CHANGE – The City accepts and further improved the language in this

provision to be incorporated into the update SMP, as follows:

“The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met and such failure would result in significant impacts to shoreline ecological functions.”

City Alternative Accepted: The City’s alternative accepts Ecology change, but identified improved language.

M

20.25E.060 G. Critical Areas in the

Shoreline Overlay District.

Critical areas in the Shoreline Overlay District shall be regulated in accordance with Part 20.25H LUC (Critical Areas Overlay District, as set forth in the Land Use Code on [INSERT DATE of ordinance adoption]), which is incorporated by this reference exclusive of sections listed in 20.25E.010.C.1.c. into the SMP.

Ecology Rationale: Same suggestion as item A, above.

ALTERNATIVE RECOMMEND CHANGE – The City accepts and further improved the language in this

provision to be incorporated into the update SMP, as follows:

“Critical areas in the Shoreline Overlay District shall be regulated in accordance with Part 20.25H LUC (Critical Areas Overlay District, as set forth in the Land Use Code on [INSERT DATE of ordinance adoption]), which is incorporated by this reference exclusive of sections listed in 20.25E.010.C.1.c.iii, into the SMP.”

City Alternative Accepted: The City’s alternative accepts Ecology change, but also improve language in the provision by correcting the cross reference.

N 20.25E.060 K. 12.

Existing Landscape Maintenance

Routing maintenance not considered “development” of existing legally established landscaping and landscape features developed prior to [INSERT effective date ordinance], in the shoreline vegetation conservation area may…

Ecology Rationale: Minor edit suggested for improved clarity.


Recommended Change.


SECTION 3: DEVELOPMENT REGULATIONS – 20.25E.065 Residential Shoreline Requirements

O 20.25E.065 B. 2. e.

Critical areas in the Shoreline Overlay District shall be regulated pursuant to Part 20.25H LUC, Critical Areas Overlay District (as set forth in Ordinance No. [INSERT Critical Areas Conformance Ordinance Number and date], which is incorporated by this reference exclusive of sections listed in 20.25E.010.C.1.c. into the SMP).

Ecology Rationale: Same suggestion as item A, above.

REJECTED RECOMMENDED CHANGE: The City has decided not to incorporate Ecology’s Recommended Change.


P

20.25E.065 B. 2. f. i. Purpose

The responsibility for water quality and control of stormwater and non-point source pollution beyond individual properties is a citywide obligation that is not borne entirely by property owners of land located within the Shoreline Overlay District.

Ecology Rationale: Suggested clarification intended to recognize the fact that there are different stormwater management obligations at the individual site than those that directed at non-point sources.



Q

Chart 20.25E.065.C.2 (13)

Impacts to existing shoreline vegetation located within 50 feet from OHWM are required to shall be mitigated pursuant to the shoreline vegetation conservation requirements contained in LUC 20.25E.065.F.

Ecology Rationale: Suggested edit to a typographic error.



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R

20.25E.065 F. 13. b. Wildlife snag as

alternative mitigation.

A landowner may chose choose to convert a hazard tree proposed for removal to a wildlife snag as an alternative to providing replacement mitigation; and

Ecology Rationale: Suggested edit to a typographic error.



SECTION 3: DEVELOPMENT REGULATIONS – 20.25E.070 Specific Use Regulations

S

20.25E.070 D. 3. d. Railroads

The following use-specific performance standards apply in addition to the general performance standards contained in paragraph D.3.b of this section.

Ecology Rationale: Correction to cross-reference.



City of Bellevue (additional) Requested Changes – submitted as part of a final response to Ecology’s June 1, 2017 Conditional Approval.

COB 1

20.25E.065 E. 3.

Modification of Setbacks with 25 feet

of OHWM.

3. Modification of Setbacks within 25 feet of OHWM. Expansion of the exterior footprint of an existing legally established structure within the 25 foot shoreline structure setback closer to ordinary high water mark, or in excess of the one-time 200 square foot allowance pursuant to LUC 20.25E.065.E.2, may only be allowed through approval of a Shoreline Variance (refer to LUC 20.25E.190).

ADDITIONAL ALTERNATIVE REQUESTED – The City’s request reflects amendments responding to comment C-5 (Attachment D) describing how setbacks are measured and clarifying that modifications closer than 25-feet (from OHWM) need to be reviewed through a shoreline variance. The requested language is as follows:

3. Modification of Setbacks within 25 feet of OHWM. Expansion of the exterior footprint of an existing legally established structure in the area located within the 25 feet landward from elevation 31.8 NAVD, or 25 feet landward from that point identified in a site-specific OHWM determination prepared by a qualified professional, requires a Shoreline Variance (refer to LUC 20.25E.190) when:

A. The expansion causes the footprint to be located closer to elevation 31.8 NAVD or OHWM; or

B. The expansion is in excess of the one-time 200 square foot allowance pursuant to LUC 20.25E.065.E.2, may only be allowed through approval of a Shoreline Variance (refer to LUC 20.25E.190).

City Alternative Accepted: The City’s alternative incorporates an elevation for administering setback provisions, agreed upon through Ecology Required Changes item(s) 6 and 7, and further clarifies when a shoreline variance would be required. The clarification appears to be within the scope and intent of Ecology’s conditional approval and therefore can be approved.

COB 2

20.25E.065.F.7.a.ii New or Extended

Impervious Surfaces

The lateral expansion does not increase the existing total footprint of the residence and/or associated impervious surface lying within the Shoreline Vegetation Conservation Area by more than 200 square feet or five percent (5%) whichever is greater, over that existing before [insert effective date of ordinance]; and

ADDITIONAL ALTERNATIVE REQUESTED – The City’s request clarifies the intended reference to the five percent figure. The requested language is as follows:

The lateral expansion does not increase the existing total footprint of the residence and/or associated impervious surface lying within the Shoreline Vegetation Conservation Area by more than 200 square feet or five percent (5%) of the total Shoreline Vegetation Conservation Area, whichever is greater, over that existing before [insert effective date of ordinance]; and

City Alternative Accepted: The City’s alternative provides a (non-substantive) clarification that appears consistent with Ecology’s 6/1/17 conditional approval.

COB 3

20.25E.040C.6

In event of a conflict between this section LUC 20.25E.040 (Nonconforming Conditions) and Part

20.25H LUC (Critical Areas Overlay District), the requirements of this section LUC 20.25E.040 shall

control.

ADDITIONAL ALTERNATIVE REQUESTED – The City’s request clarifies that Shoreline Master Program provision apply should a conflict arise between the non-conforming provisions of the SMP and the CAO. The requested language is as follows:

In event of a conflict between this section LUC 20.25E.040 (Nonconforming Conditions) and Part 20.25H LUC (Critical Areas Overlay District), the requirements of LUC 20.25E.010.C.1.b.ii and this section LUC 20.25E.040 shall control.

City Alternative Accepted: The City’s alternative provides a cross-reference that appears consistent with Ecology’s 6/1/17 conditional approval.

COB 4

20.25E.065.H.2.e Residential Moorage

(Overwater Structures)

ADDITIONAL ALTERNATIVE REQUESTED – The City’s request incorporates a definition of “Near Shore” and re-order remaining definitions. This change relates to Ecology’s required change 10 and 11, and is requested to improve internal consistency of the Shoreline Overlay Part 20.25E LUC. The requested language is as follows:

e. Near Shore. The area located waterward of the OHWM when measured on a horizontal plane to a distance of 30 feet from the OHWM.

City Alternative Accepted: The City’s alternative provides a helpful definition that will support implementation/clarification of pier/dock standards to be implemented by the updated SMP.

COB 5

20.25E.070.C.2.b.

Specific Use Regulations –

Recreation

b. Minor Expansions. Minor expansion of existing recreational facilities is allowed. “Minor Expansion” includes enlargement of gross square footage, impervious surfaces, permanent disturbance, structural lot coverage, or overwater coverage associated with the recreation facility, individually or in combination, by not more than 20 percent. Improvements not meeting the

ADDITIONAL ALTERNATIVE REQUESTED – The City’s requested alternative incorporates a 5 year period for consistency with City’s response to Ecology’s required change to item 13: LUC 20.25E.080.F.5. The requested language is as follows:

b. Minor Expansions. Minor expansion of existing recreational facilities is allowed. “Minor Expansion” includes enlargement of gross square footage, impervious surfaces, permanent

City Alternative Accepted: The City’s alternative is a non-substantive addition, clarifying the time-frame for which the 20-percent limit will be calculated.. 16

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definition of routine maintenance and repair or minor expansions shall be processed as new or expanded recreational facilities.

disturbance, structural lot coverage, or overwater coverage associated with the recreation facility, individually or in combination, by not more than 20 percent within a 5-year period. Improvements not meeting the definition of routine maintenance and repair or minor expansions shall be processed as new or expanded recreational facilities.

COB 6

20.25E.170.C.8 Exemptions From

Shoreline Substantial Development

Permits—Letter of Exemption Required

Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single-family and multiple residence(s). This exemption applies if the dock does not exceed $10,000; but if subsequent construction having a fair market value exceeding $2,500 occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this paragraph. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances;

ADDITIONAL ALTERNATIVE REQUESTED – The City’s requested alternative clarifies the applicability of the exemption from permitting requirements for docks. This change relates to Ecology’s required change items 10 and 11; and is recommended to improve internal consistency of the Shoreline Overlay Part 20.25E LUC. The requested language is as follows:

Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owner, lessee, or contract purchaser of single-family and multiple residence(s). This exemption applies to docks that are constructed to replace existing docks, are of equal or lesser square footage than the existing dock being replaced, and the fair market value of the dock does not exceed $20,000. Construction of all other docks is exempt This exemption applies if the fair market value of the dock does not exceed $10,000; but if subsequent construction having a fair market value exceeding $2,500 occurs within five years of completion of the prior construction, the subsequent construction shall be considered a substantial development for the purpose of this paragraph. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances;

City Alternative Accepted: The City’s alternative is considered a non-substantive change that incorporates the $20,000 monetary threshold in the updated WAC 173-27 and ensures internal consistency with the City’s acceptance of Ecology’s Required Change item(s) 10 and 11.

17

April 16, 2018

CITY COUNCIL STUDY SESSION ITEM

SUBJECTPuget Sound Energy Electrical Franchise

STAFF CONTACTSDave Berg, Director, 452-6468Mark Poch, Assistant Director, 452-6137Rick Logwood, Right of Way Manager, 452-6858Brian Rodan, Franchise Manager, Phone 452-6056Transportation Department

Monica Buck, Assistant City Attorney, 452-4082City Attorney’s Office

POLICY ISSUESState Law: State Law grants two public entities shared jurisdiction over Puget Sound Energy (PSE) within the City of Bellevue: (1) the Washington Utilities and Transportation Commission (WUTC) has authority to regulate rates, services, facilities and practices of electrical utilities (RCW 80.01.040) and (2) the City of Bellevue has franchise authority over use of public streets and other public rights of way for transmission and distribution of electrical energy (RCW 35A.47.040).

Bellevue City Code: BCC Chapter 14:20 contains the basic terms and conditions for granting franchises with utilities (such as PSE) using the public streets and other public rights of way. Franchise agreements are necessary to protect the City’s rights to manage and control the rights of way.

Current Franchise Agreement: The current PSE franchise agreement was adopted May 14, 2003 (Ordinance 5443) and Council voted to extend May 13, 2013 for five years. A new franchise agreement is needed to replace the existing one.

DIRECTION NEEDED FROM COUNCILACTION

☐DIRECTION

⊠INFORMATION ONLY

☐

Staff seeks direction to return to Council with a franchise ordinance for approval at the May 7 Council Regular Session.

BACKGROUND/ANALYSISThe current electrical franchise was adopted May 14, 2003 (Ordinance No. 5443), and was in place for 10 years until May 13, 2013. Council voted at that time to extend this electrical franchise for a period of 5 years until May 13, 2018. PSE has requested that the City enter into a new franchise agreement. The current electrical franchise agreement (from 2003) was developed through extensive negotiations with

18

PSE. Modifications to the franchise agreement together with four memoranda of understanding (MOU) helped define coordination of PSE projects and City activities within the public rights of way.

Franchise Provisions: The existing electric franchise agreement with PSE includes the following elements:

1. Permitting/Restoration: The franchise ensures the City’s ability to require permits, through which the City can influence the location of facilities (e.g. where cables, vaults, etc. can be installed with the public right-of-way). When facilities are installed in the public right-of-way, permitting ensures the City’s infrastructure (roads, sidewalks, etc.) are adequately restored. Further, permitting helps ensure PSE’s facilities are not installed in the right-of-way in conflict with City utilities.

2. Relocation:As an occupant of the public right-of-way, PSE is subject to relocation if necessitated by the installation of public infrastructure. The Franchise agreement lays out the conditions that trigger relocation of facilities, and when PSE is responsible for paying for those relocations. The procedures for relocation (notification, conditions, etc.) are detailed in one of the four MOU associated with the Franchise.

3. Undergrounding:In some situations, it may be desirable (from the public’s perspective and/or PSE’s) for the PSE facilities to be undergrounded. The franchise agreement defines who, within the regulations set up by the WUTC, pays for this undergrounding. As a result of this agreement, incorporating the City’s Comprehensive Plan policy to have all new facilities (distribution and service lines) undergrounded, the City has been successfully preventing the addition of new aerial power lines in public right-of-way within City limits.

4. Shared Excavations:The Franchise also helps protect City assets and minimize impact on the public by requiring PSE and other franchised utility companies to coordinate their plans for new facilities and install facilities in joint trenches to the extent possible, reducing the impact on the pavement and motoring public.

5. Vegetation Management:It is necessary for PSE to maintain vegetation around its facilities and aerial power lines. The Franchise agreement ensures the City is involved in the development and implementation of the Vegetation Management Plan (both for annual maintenance and unanticipated situations requiring immediate remediation). The goal is balancing the sometimes-competing objectives of electric reliability, aesthetics, and preservation of tree canopy. The Vegetation Management Procedures are laid out in greater detail in an MOU.

Performance and Reliability:In association with the Franchise agreement, the City and PSE have entered into a Performance & Reliability MOU, and a Records of Installation MOU. These MOU are in addition to the Relocation MOU and Vegetation MOU referenced in the above section. As a result of a major wind storm event in November 2006, and concerns about meeting long-term needs of Bellevue businesses and residents, Council commissioned an Electric Reliability Study (ERS) to evaluate PSE’s effectiveness in providing adequate and reliable electricity to the City, then and in the future.

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The ERS commenced in early 2011, engaging the services of a consultant and including the participation of a stakeholders group, representing Bellevue businesses and residents. Their work resulted in adetailed assessment presented to Council in 2012 with a report which included recommendations for maintaining and improving the continued adequate and reliable delivery of electricity to Bellevue.

Some of their recommendations involved active partnership and cooperation between PSE and the City. Many of their recommendations have since become part of City processes. In 2015 and March 2018, the City produced a “report card” which summarizes the ongoing progress in implementing the ERS recommendations.

Franchise Scope:The PSE Electrical Franchise agreement only applies to facilities installed in the public rights-of-way and public easements in Bellevue. It does not apply to private property, such as where substations would be located. Thus, the franchise agreement is not a vehicle for influencing the design of PSE systems or system expansion. The City’s existing review processes (via Land Use and Right-of-Way Use Permits) are what afford the community and the City the opportunity to provide input into the location of the new facilities. The City and PSE implemented more formalized coordination to respond to forecasted storms, integrated with City Incident Command structure and regular meetings to create/implement responses, such as Outage Information System, etc.

The Franchise also does not apply to the Energize Eastside Project currently undergoing environmental and permit review. This project is located primarily within PSE’s currently owned private easements and not within the City’s right-of-way.

Proposed Updates for 2018:

PSE Electrical Franchise Agreement: No substantive changes are recommended to the Franchise agreement. The agreement was substantially updated in 2003, and has proved effective over the past 15 years. Most of the desired improvements can be better addressed in the four existing MOU and by adding an additional MOU for pole replacement and removal concerns.

Memoranda of Understanding: Staff has engaged PSE in regard to related MOU, pertaining to particular topics related to the Franchise. Staff is seeking to conclude discussions so that they will be ready to sign on or about May 7in conjunction with approval of a franchise ordinance. If these are not ready by May 7, then these MOUs can be completed as soon as possible after May 7.

The Records of Facilities and Facilities Relocation Procedure MOU are recommended to remain the same as existing with the same terms as before. No changes are needed other than to re-execute them with the new Franchise (if approved by Council).

The Vegetation Management and Electrical Reliability and Performance MOU should be revised to include changes to policies and procedures adopted by PSE and the City since 2003.

There is an intent to create a new Pole Replacement/Removal MOU. This new MOU would outline policies and procedures to expedite removal of old poles when new poles are installed, including tracking and timelines. This MOU is still in negotiation with PSE, so details are yet to be agreed.

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OPTIONS1. Direct staff to bring a franchise ordinance for Council approval at the May 7 Council Regular

Session to re-execute the PSE Electrical Franchise for a period of 10 years.2. Provide alternative direction to staff.

RECOMMENDATIONOption 1

ATTACHMENTSA. Amended and Restated MOU-Electrical System Performance and Reliability ReportingB. MOU-Records of Facilities within the Franchise AreaC. MOU-Vegetation Management Procedure

AVAILABLE IN COUNCIL DOCUMENT LIBRARY ERS Implementation Status Reporting Tool (2017)MOU-Utility Relocation (2012), City, PSE, Century Link, ComcastMOU- Performance and Reliability Reporting (2003)MOU-Vegetation Management Procedures (2003)MOU-Facilities Relocation Procedure (2003)MOU-Records of Facilities within the Franchise Area (2003)

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Attachment A

1

Amended and Restated Memorandum of UnderstandingElectrical System Performance and Reliability Reporting

This Amended and Restated Memorandum of Understanding (MOU) is entered by and between the City of Bellevue (the “City”) and Puget Sound Energy (“PSE”), which are together referred to herein as the “Parties”.

WHEREAS, on May 14, 2003, the Parties entered into a Franchise Agreement, authorized through Ordinance No. 5443 (the “Franchise Agreement”), and renewed May 13, 2013 with Resolution No. 8582; and

WHEREAS, on May 14, 2003, the Parties entered into a Memorandum of Understanding relating to Performance and Reliability Reporting (the “Existing MOU”) through Ordinance No. 5443, and renewed May 13, 2013 with Resolution No. 8582; and

WHEREAS, Comprehensive Plan Policy UT-99 directs the City to “Work with and encourage Puget Sound Energy to plan, site, build and maintain an electrical system that meets the needs of existing and future development, and provides highly reliable service for Bellevue customers;” and

WHEREAS, Comprehensive Plan Policy UT-45 directs the City to “Coordinate with non-city utility providers to ensure planning for system growth consistent with the city’s Comprehensive Plan and growth forecasts;” and

WHEREAS, Providing highly reliable service is a critical expectation for PSE, given the importance of reliable and uninterrupted electrical service for public safety and health, as well as convenience. Highly reliable service means there are few and infrequent outages, and when an unavoidable outage occurs it is of short duration and customers are frequently updated as to when power is likely to be restored; and

WHEREAS, A highly reliable system will be designed, operated and maintained to keep pace with the expectations and needs of residents and businesses as well as evolving technologies and operating standards as they advance over time; and

WHEREAS, in 2011 the City entered into a professional services agreement with Exponent to perform an electric system reliability assessment (the “Electrical Reliability Study”) to assist the City in meeting its goals to be an informed stakeholder and to work with PSE to ensure a reliable electric power supply for the City; and

WHEREAS, the outcome of the Electrical Reliability Study (ERS) was a set of recommendations that will support the City’s efforts to meet its stated goals and be implemented so as to work continuously with PSE on maintaining and improving the City’s electrical reliability; and

WHEREAS, the Parties recognize the value of defining, developing and continuously improving their working relationship through cooperation, planning, communication and coordination; and

WHEREAS, the Parties desire to incorporate mutually agreed provisions for sharing performance information and implementation of recommendations from the ERS into this amended and restated

22

Attachment A

2

electrical reliability MOU which will replace the existing Memorandum of Understanding for Performance and Reliability Reporting in the Franchise Agreement, approved and executed in accordance with the laws of the State of Washington;

NOW THEREFORE, it is hereby understood and agreed by and between the Parties as follows:

1. ANNUAL RELIABILITY WORKSHOPThe Parties will conduct an annual reliability workshop, and will mutually coordinate, schedule and conduct the workshop with designated staff from the City and from PSE. The City will invite stakeholders to attend the workshop. The workshop ideally will occur before the end of the third quarter of each year. The purpose of the workshop is for the Parties to continue to be informed stakeholders regarding the state of electric service reliability. The Parties agree to participate in the reliability workshop as noted:

a) PSE will provide a report to the City for review in the reliability workshop to include:, no later than ten business days prior to the scheduled reliability workshop, to include:i. System Average Interruption Frequency Index (“SAIFI”) and System Average Interruption

Duration Index (“SAIDI”) figures for electric service within the City for each of the previous five years: a) as single year figures for SAIFI and b) on a five-year rolling average for SAIDI. PSE will also provide comparisons of the SAIFI and SAIDI figures for the City with PSE’ssystem-wide figures as well as the system averages of other comparable utilities for the same periods.

ii. SAIFI and SAIDI figures for distribution circuits serving City customers for the prior year, identifying circuits that had a SAIFI and/or SAIDI greater than the PSE system average SAIFI and/or SAIDI for the same period as reported to the WUTC, and for such circuits, an overview of strategies and actions planned by PSE to improve performance.

iii. Performance trend information for circuits identified in the prior year’s workshop as having performance below that of the PSE system average for that year, to assess and discuss the efficacy of steps taken to improve performance.

iv. Information concerning all unplanned outages (and resulting service interruptions to customers) within the City, identifying the individual circuit, cause, equipment, duration, and number of customers affected and cause for each outage, as well as actions taken or planned to prevent recurrences. Such information shall be provided for the sole purpose of facilitating further inquiry by the City to PSE concerning such circuits and/or outages. The provision of such information by PSE shall not otherwise create or imply any other commitment or obligation by PSE.

b) At the reliability workshop PSE shall present:

i. An overview of equipment and facility capital projects to improve system reliability in the City, including those intended to create redundancy, completed in the prior year, or intended to be completed in the following year, and

ii. An overview of automation improvements completed in the prior year or intended to be completed in the following year, intended to increase two-way communication on the PSE system and move towards implementation of “Smart Grid” capabilities.

The City will make the report publicly available at least five days before the workshop.

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Attachment A

3

2. ANNUAL PLANNING MEETINGThe Parties will conduct an annual planning meeting, and will mutually coordinate, schedule and conduct the meeting with designated staff from the City and from PSE. The meeting will ideally occur before the end of the second quarter of each year. The purpose of the meeting is to provide information sharing around both the City’s and PSE’s independent conduct of mid- and long-range planning activities based on population and employment forecasts produced by the PSRC.

The meeting is intended as an opportunity to examine consistency of independent growth forecast assumptions, align activities under the City’s Growth Management Act responsibilities to ensure that Bellevue will have adequate utilities to serve both existing development and future growth, and to maximize benefits from both Parties’ infrastructure investments. The Parties agree to participate in the planning meeting as noted:

a) The City will present the City’s current growth projections and the current Major Projects Report, using the Report to document for the planning meeting awareness about additionalabout City projects or other developments. The City will review anticipated regulatory and legislative actions which would be expected to have a significant impact on PSE or its plans.

b) PSE will present an overview of PSE’s latest system demand and supply projections; an overview of planned capital projects in the Bellevue service area along with their proposed facility siting and permitting timeframes; and early identification of other projects or plans expected to impact PSE’s provision of electrical facilities service in the Bellevue service area.

3. COMMUNICATIONS and EMERGENCY OPERATIONSThe Parties will continue to implement developed formal processes and procedures related to response and support emergency management activities:

a) Continue proactive communication around coordinating emergency response protocols.b) Continue to implement the pre-event coordination model developed by City and PSE emergency

operations staff for forecasted storm events including PSE staff assigned to the Redmond storm base during forecasted storm events and including PSE staff linked to dedicated city personnel staffing the City Emergency Operations Center (EOC) including the identification of staff contacts for communications and coordination between the Parties when the Bellevue Emergency Operations Center is activated and during other emergency situations.

c) Continue monthly meetings of City Office of Emergency Management staff and PSE staff through Zone 1 Emergency Management Group and Emergency Management Advisory Committee (EMAC)/Region 6 Homeland Security Council.

d) Continue to seek integration of public information opportunities between PSE’s communications structure and the City Incident Command structure.

The Parties will continue to implement Section 16 of the Franchise Agreement regarding annual coordination meetings of emergency management operations and active PSE participation at the request of the City in emergency preparedness drills or planning sessions.

4. UNDERGROUNDING DISTRIBUTION FACILITIESComprehensive Plan Policy UT-58, associated city code provisions, and Section 6.3 of the Franchise Agreement apply.

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Attachment A

4

The Parties agree to use utility coordination meetings, the annual planning meeting, and, as appropriate from time to time, other opportunities such as Comprehensive Plan policy implementation to identify projects planned by either Party, or third parties for undergrounding distribution facilities. This is intended to ensure only active identification and consideration of opportunities by the Parties and does not require undergrounding beyond any other applicable requirements of the City and as outlined in Section 6.3 of the Franchise Agreement.

5. SMART GRID STRATEGYThe Parties will update their Smart Grid planning and deployment initiatives during the reliability workshop.

a) PSE will provide to the City a copy of the smart grid technology report pursuant to WAC 480-100-505.

b) Both Parties will seek at any time to discuss deployment strategies for the use of Smart Grid technologies and infrastructure in the City and potential opportunities to pilot and test advanced Smart Grid equipment and technologies within the City.

c) PSE staff will work with City IT staff to achieve the City Council’s Vision priorities for its High Quality Built and Natural Environment Strategic Target area to develop a Smart City strategy which also includes high-speed data options to support business and residents and determine implementation steps.

6. OTHER AGREEMENTSExcept as specifically set forth herein, this Memorandum of Understanding and the respective commitments, rights and obligations of the Parties hereunder are in addition to any of those set forth in the Franchise Agreement and other existing Memoranda of Understanding. Except as may be specifically set forth herein, nothing in this Memorandum of Understanding shall be deemed to alter any of the existing terms and conditions of the Franchise Agreement or such other existing Memoranda of Understanding.

7. CONFLICT RESOLUTION. Any dispute, disagreement or claim arising out of this Memorandum of Understanding must first be presented to and considered by the Parties. A Party who wishes to present such dispute, disagreement or claim will notify the other Party and pursue resolution of the dispute, disagreement or claim consistent with Sections 11 and 12 of the Franchise Agreement and as limited by Section 25 of the Franchise Agreement. All negotiations pursuant to these procedures for the resolution of disputes will be confidential and will be treated as compromise and settlement negotiations for the purposes of the state and federal rules of evidence.

8. THIRD PARTY BENEFICIARIESNothing in this Memorandum of Understanding is intended to create any rights or interests as third-party beneficiaries.

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Attachment A

5

Agreed and accepted this ________ day of ____________ 2015.

PUGET SOUND ENERGY, INC. CITY OF BELLEVUE

_______________________________ __________________________________(Title) City Manager

_______________________________(Title)

Approved as to form:

_______________________________Deputy City Attorney

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Attachment B

Page 1 of 3

Memorandum of UnderstandingRecords of Facilities within the Franchise Area

The Memorandum of Understanding is entered into between the City of Bellevue (the “City”) and Puget Sound Energy (“PSE”), also referred to herein together as the “Parties.”

WHEREAS,the City and PSE have entered into a Franchise Agreement, Ordinance No. _______ ("the Franchise"), and

WHEREAS, PSE recognizes and acknowledges the City's need to have reasonable access to available drawings with sufficient detail to show the approximate location of PSE's Facilities within the Franchise Area (as defined in the Franchise), for the City's use in management of the Franchise Area, and

WHEREAS, the City recognizes and acknowledges PSE's concem for security and liability relating to the release of such information, to third parties, and

WHEREAS, existing law subjects such information in the possession of the City to requirement(s) for public disclosure, and

WHEREAS, the Parties desire to work cooperatively to address their respective interests concerning such information with the intention to facilitate potential future amendment of the Franchise as it relates to this issue,

NOW, THEREFORE, it is hereby understood and agreed between the Parties as follows:

This Memorandum of Understanding is intended by the Parties to be supplemental to the Franchise to the extent it contains provisions intended to facilitate future amendment of the Franchise (Section 8.2) to provide for provision by PSE to the City of PSE's available drawings showing the approximate location of PSE's Facilities within and throughout the entire Franchise Area.

Unless specifically defined otherwise in this agreement, all defined terms herein will have the same meaning as when used in the Franchise.

This Memorandum of Understanding may be amended by mutual agreement of the Parties. Any amendments must be set forth in writing. signed by both Parties, and specifically state that it is an amendment to this Memorandum of Understanding.

This Memorandum of Understanding, as from time to time amended, will remain in full force and effect until the earlier of the amendment of the Franchise as contemplated by this Memorandum of Understanding, or the expiration of the Franchise, or the termination of the Franchise (as provided for therein and herein), unless sooner terminated by mutual agreement of the Parties.

27

Attachment B

Page 2 of 3

1. PSE will use its best efforts and in good faith pursue, as soon as reasonably practicable, the enactment of appropriate state legislation (and also federal legislation if appropriate) to exempt from public disclosure information concerning the location of PSE's Facilities within and throughout the Franchise Area.

2. The City will use its best efforts and in good faith coordinate and consult with PSE in its pursuit of such exemption.

3. As soon as reasonably practicable following the effective enactment of such legislation, the Parties intend and hereby agree to amend the Franchise to provide for provision by PSE to the City of PSE's available drawings showing the approximate location of PSE's Facilities within and throughout the Franchise Area, consistent with such legislation. The Parties intend and hereby agree that such amendment shall replace Section 8.2 of the Franchise substantially as follows:

Upon the City's reasonable request (such requests not to occur more often than two (2) years apart), PSE shall provide to the City copies of available drawings in use by PSE showing the location of its Facilities within and throughout the Franchise Area. As to any such drawings so provided, PSE does not warrant the accuracy thereof and, to the extent the locations of Facilities are shown, such Facilities are shown in their approximate location. PSE shall provide such drawings within thirty (30) days of such request.

Provided, however, such amendment shall be revised by mutual agreement of the Parties as may be required to conform with and be made consistent with any such legislation so enacted.

4. If, PSE's best efforts notwithstanding, no appropriate legislation as contemplated by this Memorandum of Understanding has been enacted by December 31, 2006, the Parties agree that thereafter, upon the written request of the City, the Parties will, at a time and in a manner then mutually agreed by the Parties, promptly enter into negotiations to amend the Franchise to address, to the extent then reasonably practical, the matter addressed by this Memorandum of Understanding.

5. In the event the Parties are unable to reach mutual agreement on amendment(s) to Section 8 (or other relevant sections) of the Franchise within 180 days after such negotiations commence, then the Parties hereby agree that the City will have the right, notwithstanding any language in the Franchise to the contrary, at its option and by ordinance, to terminate the Franchise, effective eighteen (18) months from the effective date of such termination ordinance. In the event of such termination, the Parties hereby agree to promptly enter into negotiations, at a time and in a manner then mutually agreed by the Parties, on a new franchise agreement to replace the terminated Franchise.

6. This Memorandum of Understanding and the respective commitments and rights of the Parties hereunder are in addition to any of the respective obligations of the Parties under the Franchise. Nothing in this Memorandum of Understanding will be deemed to alter any of the terms and conditions of the Francl'!Jse (including by not limited to Section 8 thereof), or the obligations of any Party under the Franchise, except as expressly provided for in this Memorandum of Understanding, nor shall it be construed to have waived any respective rights of the Parties under the Franchise.

7. Any dispute, disagreement or claim arising out of this Memorandum of Understanding must first be presented to and considered by the Parties. A Party who wishes to present such dispute, disagreement or claim will notify the other Party and pursue resolution of the dispute, disagreement or claim consistent with Sections 11 and 12 of the Franchise and as limited by Section 25 of the Franchise. All negotiations pursuant to these procedures for the resolution of disputes will be confidential and will

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Attachment B

Page 3 of 3

be treated as compromise and settlement negotiations for purposes of the state and federal rules of evidence.

Agreed and Accepted this ___________ day of ______________, 2018.


CITY OF BELLEVUE

Signature: _____________________

Name: _____________________

Title: _____________________

PUGET SOUND ENERGY

Signature: _____________________

Name: _____________________

Title: _____________________


_________________________

BY: Monica Buck

Assistant Bellevue City Attorney

29

Memorandum of Understanding, Vegetation Management Page 1 of 4

Memorandum of Understanding

Vegetation Management Procedure

The Memorandum of Understanding is entered into between the City of Bellevue (the “City”) and Puget

Sound Energy (“PSE”), also referred to herein together as the “Parties.”

WHEREAS, the City and PSE have entered into a Franchise Agreement, Ordinance No.

___________ (the “Franchise”), and

WHEREAS, the City takes exceptional pride in the care of trees within the City, whether located

within a native area or along a landscaped street, all trees should be trimmed with the same care and

attention to detail, and

WHEREAS, the City and PSE recognize the value of defining and developing their working

relationship through cooperation, planning, communication and coordination, and

WHEREAS, the City and PSE desire to establish mutually agreed practices for the performance of

vegetation management within and adjacent to the Franchise Area as defined by the Franchise.

NOW, THEREFORE, it is hereby understood and agreed between the Parties as follows:

This Memorandum of Understanding is intended by the Parties to be supplemental to the Franchise to

the extent it contains practices for the performance of vegetation management within and adjacent to

the Franchise Area.

Unless specifically defined otherwise in this agreement, all defined terms herein will have the same

meaning as when used in the Franchise.

This Memorandum of Understanding may be amended by mutual agreement of the Parties. Any

amendment must be set forth in writing, signed by both Parties, and specifically state that it is an

amendment to this Memorandum of Understanding.

This Memorandum of Understanding, as from time to time amended, will remain in full force and effect

for the term of the Franchise, unless sooner terminated by mutual agreement of the Parties. These

provisions are agreed to by the Parties for the purpose of implementing Section 15 of the Franchise.

Vegetation Management Procedure

1. The City’s Natural Resource Manager (“NRM”), or his/her designee, should be notified at least

one week prior to any vegetation management work being conducted within City limits; except

that emergency work can be done the same day providing that the NRM is contacted either by

phone or email. If the NRM is not available, a message can be left and City staff will review the

nature of the work on the next available business day.

2. Vegetation Management Process. Vegetation management in the Franchise Area (as defined in

the Franchise) is a continuous and ongoing need which arises with respect to:

2.1 Emergency: Vegetation management which arises as a result of an emergency or other

unexpected events or conditions which require immediate response to an unsafe condition

which has or could result in bodily injury, damage to property or equipment, and/or 30


interference/obstruction to the rights-of-way (for example, car-hit poles, downed poles or

lines or equipment due to wind, ice, snow, insects, rot, earth movement, birds/animals or

fallen trees/vegetation, etc.).

2.2 Routine: Routine and predictable vegetation management performed to maintain safe

distances between existing PSE poles/lines/equipment and nearby vegetation.

2.3 New Installations: Vegetation management (including “make ready” work) arising from or

related to: installation by PSE of new or replacement poles, lines or equipment; or

installation by third parties of equipment to be located on PSE pole/lines/equipment

(collectively “New Installation”).

3. Compliance with Applicable Requirements. PSE (or its contractors) are not permitted to engage

in any vegetation management activities in the Franchise Area without first obtaining a right of

way use permit subject to the following additional terms and conditions:

3.1 Emergency and Routine Vegetation Management; Programmatic Permits. Prior to the

commencement of each programmatic permit period (calendar year or every 3 years, as the

case may be), PSE and the NRM (or designee) shall meet, discuss and agree upon the terms

and conditions of “programmatic” right of way use permits year with respect to all

“Emergency” and “Routine” vegetation management activities by PSE (or its contractors).

A “Routine” programmatic right of way use permit is issued for a three (3) year period (the

current routine programmatic right of way use permit expires 12/31/2018). The Emergency

programmatic right of way use permit is obtained each calendar year.

“Routine” vegetation management activities are further divided between “critical areas”

and “non-critical areas.”

The conditions of these programmatic right of way use permits shall provide that Emergency

and Routine Vegetation Management activities/work shall be performed in compliance with

and subject to:

3.1.1 any applicable land use permits, which may be issued from time to time, which

include requirements related to Emergency or Routine vegetation management.

[NEED STAFF INPUT for revision]

3.1.2 All requirements contained in applicable provisions of the Bellevue City Code, and

City policies and procedures including, without limitation references to the SEPA

and Critical Areas.

3.1.3 The terms of the Franchise Agreement (if consistent with the foregoing).

3.1.4 Such other reasonable terms and conditions as the parties shall mutually agree.

3.1.5 With respect to all programmatic permits, PSE and the City shall meet at periodic

intervals (2 to 4 times per year) to review the work which has been performed and

the work to be performed in the near future under the programmatic permit.

3.2 New Installations: All vegetation management arising from or related to any New

Installation shall be performed in accordance with the following:

3.2.1 If a Land Use permit is required for the New Installation then the related vegetation

management shall be performed and conducted in compliance with all

requirements (if any are specified) contained in the applicable land use permit.

31


3.2.2 All requirements contained in applicable Bellevue City Code, and City policies and

procedures including, without limitation references to the SEPA and Critical Areas.

3.2.3 The terms of the Franchise Agreement (if consistent with the foregoing).

3.2.4 All requirements contained in the applicable right of way use permit related to the

work.

4. All pruning should be conducted under current International Society of Arboriculture standards.

Crew foreman will be aware of these standards and ensure that they are implemented for all

pruning conducted by or for PSE within the City.

5. PSE or its contractors should trim trees according to species growth habits. Crew foreman will

be aware of the applicable requirements, different tree species and understand their

corresponding growth habits.

6. In the event trees need to be trimmed within and/or adjacent to the Franchise Area or within

City owned property (including native areas and developed parks), the City shall be notified

ahead of time and shall be provided the opportunity to have the trees removed entirely.

Replacement trees can be negotiated between NRM and PSE or their contractor on a case by

case basis.

7. All debris associated with line clearance tree trimming and/or removal work within or adjacent

to the Franchise Area or within City owned property (including native areas and developed

parks) will be chipped and removed by PSE or its contractor from the site at no cost to the City.

“Drop and Scatter” practices will require prior approval from the NRM.

8. When trees are heavily trimmed or removed within native areas, the work should be performed

in such a way as to avoid damage to other trees within that area. If additional trees are

accidentally damaged during such work, PSE, or its contractor, will use its best efforts to

appropriately prune any such damaged trees. The NRM is to be contacted immediately in the

event of any unplanned damages to City owned trees.

9. Climbing trees with gaffs or spikes is strongly discouraged on any deciduous, hardwood or think

bark tree species unless the tree is to be removed.

10. A knowledgeable PSE representative will stay in close communication with the NRM while

vegetation management work is performed within the City. Periodic performance reviews

should be conducted at the request of the NRM.

11. Any dispute, disagreement or claim arising out of PSE’s vegetation management practices must

first be presented to and considered by the Parties. A Party who wishes to present such dispute,

disagreement or claim will notify the other Party and pursue resolution of the dispute,

disagreement or claim consistent with Section 11 and 12 of the Franchise and as limited by

Section 25 of the Franchise.

All negotiations pursuant to these procedures for the resolution of disputes will be confidential

and will be treated as compromise and settlement negotiations for purposes of the state and

federal rules of evidence.


CITY OF BELLEVUE Signature: _____________________ Name: _____________________ Title: _____________________

PUGET SOUND ENERGY Signature: _____________________ Name: _____________________ Title: _____________________

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_________________________ BY: Monica Buck Assistant Bellevue City Attorney

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