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RESOLUTION NO. 24-10
A RESOLUTION of the City Council of the City of Port Angeles, Washington,
changing and confirming the date of the closed record proceeding, delegating
to the Mayor authority to establish rules of process and procedure for the
closed record proceeding, and establishing standards of review and for
decision - making on the closed record proceeding regarding the Shoreline
Substantial Development Permit for the Nippon Paper Industries USA Co.,
Ltd. mill expansion and biomass cogeneration project.
WHEREAS, Nippon Paper Industries USA Co., Ltd. ( "Nippon ") owns a forest products
processing facility (mill) in the City of Port Angeles, and is proposing a new and larger biomass
boiler' and associated structures at its mill site located at 1 902 Marine Drive in the City of Port
Angeles ( "Project "); and
WHEREAS, Nippon submitted applications for a Shoreline Substantial Development
Permit ("SSDP") and a Conditional Use Permit ( "CUP ") for its Project, and a Final
Environmental Impact Statement ( "FEIS ") under the State Environmental Policy Act, SEPA,
was issued on September 3, 2010, and staff recommended approval of the SSDP and the CUP
on September 22, 2010, and on that same date, the City of Port Angeles Planning Commission
held an open record, public hearing on both the SSDP and the CUP, as well as on the adequacy
of the FEIS, and the Planning Commission approved the CUP and the SSDP on the same date;
and
WHEREAS, various organizations and entities timely appealed the September 22, 2010
decision by the Planning Commission on the SSDP and the adequacy of the FEIS. The FEIS
appeal, however, will not be ready for review until the Clallam County Hearing Examiner issues
his Findings of Fact, Conclusions of Law and Recommendation Decision, sometime after
November 24, 2010; and
WHEREAS, in order to allow for a completed open record public hearing on the
adequacy of the FEIS, the City referred just the FEIS to the Clallam County Hearing Examiner
to complete the open record proceeding and take in all evidence relative to the adequacy of the
Codif er's Note: The draft resolution identified Nippon's facility as an "incinerator." Correctly, it is a
"boiler" not an "incinerator." In this resolution, the word "boiler" is inserted in those places where
"incinerator" appeared in the draft.
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FEIS. That open record hearing was scheduled to take place on November 24, 2010 but,
because the Appellants recently withdrew their appeal of the FEIS, this hearing has been
stricken and the FEIS appeal dismissed with prejudice on November 16, 2010; and
WHEREAS, the Port Angeles City Code provides that the City Council, acting in a
quasi-judicial capacity, will hear a closed record appeal of the Nippon project SSDP — the
September 22, 2010 Decision by the Planning Commission. This matter, pursuant to City Code,
will be heard by the City Council in a closed- record proceeding, since the open record hearing
is completed; and
WHEREAS, on or about November 10, 2010, the City gave notice to the parties and the
public of the date of the closed record proceeding regarding the Nippon Project, setting the
proceeding for December 14, 2010 at 6 p.m. at City Hall; and
WHEREAS, the City's Code does not specify procedures, rules or standards for
conducting or deciding closed record appeals or other closed record proceedings; and
WHEREAS, in light of the Appellants' withdrawal and the Hearing Examiner's
dismissal with prejudice of the Appellants' challenge to the adequacy of the FEIS, leaving only
the Appellants' appeal of the SSDP for resolution, and in light of upcoming holidays
(Thanksgiving, Christmas etc.) and other events which make scheduling a public proceeding and
drafting a written decision in a timely fashion difficult, and in light of State law encouraging
expeditious resolution of land use appeals and permits, it is appropriate to change the date of
the closed record proceeding to an earlier and more convenient date. In rescheduling this
proceeding, the City Council made efforts to get input from attorneys for the parties regarding
their availability for various alternative new dates and attempted as best as possible to
accommodate the schedules of the parties and their attorneys as well as all City
Councilrnembers; and
WHEREAS, it is in the interests of all parties to this proceeding, as well as the public
in general, to establish and have in place prior to the closed record proceeding uniform,
objective and fair procedures, rules and standards, and to move up the date of the closed record
proceeding; and
WHEREAS, due process and notice obligations support having in place prior to the
closed record proceeding clear standards for decision- making on the SSDP appeal a new date
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for the proceeding and to give public notice of the date, time and location of the proceeding, the
ability of the City Council to adopt procedures and process to provide for an efficient, fair, cost -
effective and time- efficient closed record proceeding; and
WHEREAS, enacting and having in place prior to the closed record proceeding uniform,
objective and fair procedures, rules and standards applicable to the Nippon Project furthers the
public health, safety, welfare of the City and confidence in City decision- making.
NOW, THEREFORE, be it resolved by the City Council of the City of Port Angeles as
follows:
Section 1. The closed record appeal of the Planning Commission's approval of the
Nippon Project SSDP related to the Nippon Project is hereby rescheduled. The current date of
the proceeding (December 14, 2010) is hereby stricken. The proceeding is rescheduled for the
following date, time and location:
DATE: December 6, 2010
TIME: 6:00 p.m.
LOCATION: Council Chambers
City Hall
City of Port Angeles
321 E. Fifth St.
Port Angeles, WA. 98362
Section 2. The Port Angeles City Council hereby authorizes and empowers the Mayor
to establish rules of process and procedure to apply to the closed record proceeding on
December 6, 2010 for the Nippon Project. These rules will include, among other things, the
length of the closed record appeal proceeding, the format of the proceedings, the order of
presentation for argument, who can provide argument, whether and what format written briefing
will be allowed, and the amount of time for argument by representatives of the parties. The
Mayor will provide notice of these rules of process and procedure to all parties and the public
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no later than November 24, 2010. These rules of process and procedure will also be posted at
City Hall and made available to the public on the City's website.
Section 3. The Port Angeles City Council hereby adopts the review /appeal standards
set forth in the State Land Use Petition Act at RCW 36.70C.130(1) ( "LUPA "), with
modifications for City references and process, as the standards of review and decision- making
for the closed record proceedings now scheduled for December 6, 2010. These standards of
review, set forth below, shall govern the appeal of and the City Council's closed record review
and decision on the Planning Commission's approval of the Nippon Project SSDP, the only
matter remaining for decision by the City Council:
The parties seeking relief (Appellants) by the City Council from the Planning
Commission's decision on the Nippon Project SSDP must carry their burden of
establishing that one of the standards set forth in Sections (1) through (5) has
been met. The standards are:
1. The Planning Commission engaged in unlawful procedure or
failed to follow a prescribed process, unless the error was
harmless;
2. The decision is an erroneous interpretation of law, after allowing
for such deference as is due the construction of the law by this
body and/or other decision - makers;
3. The decision of the Planning Commission is not supported by
evidence that is substantial when viewed in light of the whole
(established) record before the Planning Commission;
4. The decision of the Planning Commission is a clearly erroneous
application of the law to the facts (established by the Planning
Commission); or
5. The decision ofthe Planning Commission is outside the authority
or jurisdiction of the Planning Commission.
Section 4. No new evidence (testimony, documents or any other information or
materials) shall be provided by the parties or public, or considered by the City Council, at or as
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part of the closed record proceeding on December 6, 2010. The proceeding shall be limited to
oral and /or written argument by representatives of the parties only, and based solely on the
existing record created before the Planning Commission.
PASSED by the City Council of the City of Port Angeles at a regular meeting of the
City Council held on the 1 6th day of November, 2-610.
AVI EST:
By:
as
APPROVED AS TO FORM:
sa Hurd, City Clerk
By: �. A , f/ ���
ichael C. Walter, Special Legal Counsel
(for the City Council)
G LLEGAL4 GROIN ANCES &RESOLUTIONS1RISOLUTIONS 20101I7.Nippan Appal Rules 111710 wpd. (N w v *e.- 17.:010)
Dan �ouilio, Mayor