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HomeMy WebLinkAboutAgenda Packet 12/28/2010D. ADJOURNMENT B. ROLL CALL PLEDGE OF ALLEGIANCE C. WORK SESSION W A S H I N G T O N , U.S.A. First - Page • A. CALL TO ORDER — SPECIAL MEETING AT 5:00 P.M. 1. Nippon Appeal: Proposed Findings of Fact, Conclusions of Law, and Decision on Closed Record Appeal AGENDA CITY COUNCIL MEETING 321 East 5 Street December 28, 2010 SPECIAL MEETING 5:00 p.m. 'RECOMMENDATION, NOTE: HEARING DEVICES AVAILABLE FOR THOSE NEEDING ASSISTANCE MAYOR TO DETERMINE TIME OF BREAK August 31, 2010 Port Angeles City Council Meeting Page - 1 1. Adopt. Note: The Mayor may determine the order of business for a particular City Council meeting. The agenda should be arranged to best serve the needs and/or convenience of the Council and the public. The items of business for regular Council meetings may include the following: • Sackeround / Analysis: W A S H I N G T O N , CITY COUNCIL MEMO DATE: DECEMBER 28, 2010 To: CITY COUNCIL FROM: KENT MYERS, CITY MANAGER SUBJECT NIPPON APPEAL: PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION ON CLOSED RECORD APPEAL Summary: City staff and Michael Walter, legal counsel for the City, have prepared proposed the attached findings of fact and conclusions of law relative to the City Council's decision on December 6, 2010. As recommended by the City Council at the December 21, 2010 meeting, minor revisions have been made to the proposed findings of fact and conclusions of law. Recommendation: Council adopt the attached findings of fact, conclusions of law and decisions on the closed record appeal. On December 6, 2010, the City Council decided to uphold the Planning Commission's approval of the Shoreline Substantial Permit SMA 10 -01. As suggested by the City Council, City staff, and Attorney Michael Walter have worked together to prepare the attached information for your consideration. Mr. Walter will be available via conference call to answer any Council questions regarding the attached findings and conclusions. In the Matter of the Appeal of No Biomass Burn Port Townsend Air Watchers Center for Environmental law and Policy World Temperate Rainforest Network Olympic Environmental Council Olympic Forest Coalition Sierra Club of the Shoreline Substantial Development Permit No. SMA 10 -01, Nippon Paper Industries USA Co., Ltd., Applicant BEFORE THE CITY COUNCIL OF THE CITY OF PORT ANGELES INTRODUCTION NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 1 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION ON CLOSED RECORD APPEAL THIS MATTER came on before the Port Angeles City Council on December 6, 2010 on quasi - judicial, closed - record appeal brought by seven appellants who challenged a September 22, 2010 decision of the Port Angeles Planning Commission, regarding Shoreline Substantial Development Permit No. SMA 10 -01 for the Nippon Paper mill expansion and biomass cogeneration project. The following is a summary of the subject property, the land use applications, and the shoreline permit at issue, as well as findings of fact, conclusions of law and final decision of the City Council on the appeal. BACKGROUND OF PROJECT AND APPEAL The appellants are: (1) No Biomass Burn; (2) Port Townsend Air Watchers; (3) Center for Environmental Law and Policy; (4) World Temperate Rainforest Network; (5) Olympic Environmental Council; (6) Olympic Forest Coalition; and (7) Sierra Club (collectively "Appellants "). The Appellants are represented by Seattle attorney Toby Thaler. Nippon Paper Industries USA Co., Ltd. ( "Nippon ") is the permit applicant and, along with City Staff, a party responding to the Appeal. Nippon is represented by Seattle attorney Tom Backer. The City Planning Commission, the respondent, is represented by the Port Angeles City Attorney, William Bloor. The City Council is independently represented by outside special counsel, Seattle Attorney Michael Walter. FINDINGS OF FACT 1. Description of Project. On March 11, 2010, Nippon Paper Industries submitted to the City an application for a shoreline substantial development permit to construct and operate a biomass fueled cogeneration facility on the property of Nippon USA located at 1902 Marine Drive in Port Angeles. The proposed facility is located on the site of the existing Nippon paper plant, which is located within the Industrial Heavy (IH) zone. The site also is within the 200 - foot shoreline jurisdiction area. The Nippon Mill currently uses one large biomass boiler, two smaller, oil -fred boilers, and an electric boiler to produce steam needed to dry the paper and operate the other processes in the Mill. The proposed new boiler would be a 225,000 - pound- per -hour (113/hr) steam - generating unit. That unit is intended to be used for the Mill's steam needs for paper manufacturing. Excess steam will be used to generate electrical power that can be sold to the regional utility grid. The fuel for the new boiler will come from wood biomass. The wood biomass fuel will be a result of forest industry by- products such as timber slash that is currently burned in the field, or wood chips /sawdust produced from other wood product industries. Wood biomass will be hauled by truck to the cogeneration facility site. The Mill expects to purchase about 160,000 bone dry tons per year of biomass. This is approximately double the amount of biomass material currently used by the Mill. Additionally, the new boiler will use ultra -low sulfur fuel as a secondary fuel but only during certain limited periods to maintain the paper mill output. The facility will be composed of several buildings or structures including a truck dumping mechanism, a screening mechanism, a biomass storage silo, a boiler building, a turbine generator building, an electrostatic precipitator (to clean the boiler exhaust), and an ash silo, and related facilities, which may include a cooling tower. These structures will be connected by a series of conveyors. Two existing portable truck dumps and a wood pulverizer would be relocated to the west end of the general project area. A biomass fuel conveyor feed system, covering a footprint area of about 3,200 square feet, would be situated north and west of the biomass storage building. The bulk of the biomass fuel handling would occur within this conveyor building rather than outside the building using heavy equipment, as is done currently. This method of fuel handling will reduce fugitive dust escaping the site during windy conditions and will reduce the noise impacts of the facility. The proposed facility will be placed on the south side of the site where the main office building currently exists. The office building and some accessory equipment may be removed to make room for the new facility. No portion of the new facility will be any closer than 50 feet to the shoreline. The location of the new facility will be at least 30 feet from the Marine Drive right-of- way per development standards of the 1H zone. The site location is designated as Urban Harbor (UH) on the City's Shoreline Master Program NO BIOMASS BURN, ET AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 2 • • • • Map. The Urban- Harbor is an area of high intensity land and shoreline use. The management policies for the Urban Harbor area "encourage development within already developed areas." Among other things, additions to existing industrial uses —such as the mill —and utilities and accessory utilities are permitted uses in the Urban Harbor shoreline designation. 2. Application and Procedures. The initial application was filed with the City on March 11, 2010 and vested March 15, 2010. The Notice of the shoreline substantial development permit application was published in the Peninsula Daily News on August 15, 2010. Notice was mailed to property owners within 300 feet of the project site on August 13, 2010. The site was posted for land use action on August 12, 2010. Nine (9) written comments were received by the City during the public comment period which closed on September 6, 2010. 3. Environmental Impact Statement. The City of Port Angeles, as Lead Agency, determined that an Environmental Impact Statement (EIS) was required for this project by a state law that . requires an EIS for energy recovery facilities. A Determination of Significance and Request for Comments on the Scope of the EIS was issued by the SEPA Responsible Official on March 16, 2010 for the proposed activity. The City scoped the following areas for specific discussion in the EIS process: 1. Transportation impacts, 2. air quality emissions, 3. noise, 4. cultural resources /archaeology, and 5. floodplain issues. Comments on the scoping process were accepted until 5:00 p.m. April 9, 2010. A Draft EIS (DEIS) was prepared for the proposal and was issued for public comment by the City of Port Angeles on July 6, 2010. Written comments on the DEIS were accepted until August 5, 2010. Several written comments were received and considered. A Final EIS (FEIS) was prepared and issued by the City on September 3, 2010. The FEIS includes responses to all of the public and agency written comments received and included additional sections discussing Water Resources and Recreation that were not initially required but were added in response to all written comment. As of September 6, a total of 174 days were available for public consideration and comment on this project. The impacts of the cogeneration project were evaluated in the FEIS issued by the City. The FEIS concluded that emissions of Carbon Monoxide, Sulfur Dioxide, and particulate matter will be substantially reduced from current emission levels. Moreover, there will be an additional reduction of particulate matter as a result of reduced open field burning of timber slash. Emissions of volatile organic compounds (VOCs) and nitrogen oxides (NNOx) will increase. Even so, these compounds will be below the level that the Environmental Protection Agency (EPA) and the Washington Department of Ecology consider significant. NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 3 The increase in need for wood waste fuel for the facility will require additional truck deliveries to the site. It is estimated that an additional 20 to 25 truck trips will result per day to deliver wood waste fuel to the site. This increase will be spread throughout the 24 -hour day, with much of the truck traffic arriving (from the west) during off - peak - hours. A traffic study was included in the FEIS that focused on the additional truck deliveries to the Mill. Those traffic analysis results indicated that, during peak hours, primary intersections affected by an increase in truck traffic will operate at a Level of Service of C or better. The City's Comprehensive Plan indicates that Level of Service D or better is the acceptable operating condition. The FEIS concluded that the project would not have any significant adverse impacts. The FEIS found that the project would result in a number of beneficial impacts, including: ❑ Air quality improvements in the surrounding area; ❑ conversion to 100% biomass- fueled steam generation for normal operations, which reduces fuel oil consumption and associated greenhouse gas emissions; ❑ long -term provision of renewable electricity ; ❑ retention of the mill and regional jobs; and ❑ potential creation of new jobs in Clallam County through forest biomass harvesting and delivery. 4. The Port Angeles Planning Commission held an original, open record hearing on this matter on September 22, 2010. Notice of that hearing was done in conformance with City Code. The Planning Commission received a number of exhibits, heard testimony from staff and the public, and received written comments from both proponents and opponents. Staff from the City's Department of Community and Economic Development presented its report on the application, recommending approval of the shoreline permit subject to a number of conditions. At the conclusion of the hearing, the Planning Commission deliberated, amended some of the permit conditions, and then approved the shoreline substantial development permit in a 5 -1 vote. The Planning Commission also issued formal findings and conclusions, as required by the Port Angeles Municipal Code. The 7 -page Decision contained six conditions, 17 Findings of Fact and nine Conclusions of Law related to the permit and supporting the decision. September 22, 2010 Planning Commission Decision, pp. 1-.5. All of these Findings, Conclusions and Conditions are incorporated herein as if fully set forth. 5. On October 5, the Appellants appealed the Planning Commission's decision. The request for closed - record appeal was timely filed and payment has been received. 6. Record on Appeal. The City Council had before it for review and consideration the following records: Date Description Various CD containing the entire file and record before the Planning Commission for the open record hearing held on September 22, 2010, Final Environmental Impact Statement, and an index of the documents. 09/22/2010 Decision by Planning Commission on September 22, 2010 10/06/2010 Notice of Appeal by the seven appellants 10/19/2010 City Council Resolution No. 22 -10 11/10/2010 Appellants' Notice of Partial Withdrawal NO .BIOMASS BURN, H. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 201 0) - 4 • 11/1612010 I Hearing Examiner Melly's Order of Dismissal 11/1612010 City Council Resolution No. 24-10 11/24/2010 { "Rules for Closed Record Proceeding on December 6, 2010" 11/30/2010 Appellants' Opening Brief 12/03/2010 Nippon's Pre-Hearing Brief 12/06/2010 Appellants' Rebuttal to Applicant Nippon's Pre - Hearing Brief 12/06/2010 City of Port Angeles' Response Brief 7. In appealing the Planning Commission's September 22 Decision, the Appellants alleged 4 errors: A. The Planning Commission Engaged in Unlawful Procedure in its Conduct of the September 22, 2010 Hearing; B. The Planning Commission Erred in Failing to Evaluate the Nippon Project as an Electrical Utility Requiring a Shoreline Conditional Use Permit; C. The Planning Commission Erroneously Interpreted and Misapplied SMP Utility Provisions; and D. The Planning Commission Improperly Determined that the Permit would not Result in. Adverse Environmental Impacts. 8. Recognizing that, the City scheduled an open record hearing to receive additional evidence and testimony relating to the Appellant's claims that the final EIS was inadequate. That open record proceeding was to have been conducted by a hearing examiner, Mr. Chris Melly, on November 24, 2010. However, Appellants voluntarily withdrew their challenge to the adequacy of the FEIS, and requested that the November 24 hearing be stricken. Mr. Melly granted this request and entered an Order of Dismissal with prejudice. The City Council then set the closed record hearing on the sole remaining challenge to the shoreline substantial development permit for December 6, 2010. 9. Because the City's regular City Attorney, William Bloor, had a potential conflict of interest in this matter, the City retained outside legal counsel to advise the City Council on process and procedure for this closed record appeal. Michael Walter, a partner in the Seattle law firm of Keating, Bucklin & McCormack, acted as Special Legal Counsel to advise the City Council in this closed record appeal hearing. 10. PAMC 15.08.100 authorizes this closed record appeal proceeding. The closed record appeal hearing was set for and took place on December 6, 2010, beginning at 6 p.m., and was in compliance with PAMC 15.08.100. Notice was timely and proper, and all parties received actual notice of the meeting. On November 24, 2010, "Rules for Closed Record Proceeding on December 6, 2010" was given to all parties. 11. The City Council reviewed the record referenced above as well as applicable parts of the Port Angeles Municipal Code, and considered this information as part of its decision- making in NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) 5 this matter. All of these documents are incorporated herein as Findings of Fact and/or Conclusions of Law, as applicable, as if fully set forth. 12. Mayor Dan DiGuilio was the Presiding Officer for the meeting, and he identified the permit, parties and the Project, and explained the process and procedure for the proceeding, which included the following statements and explanations: • That the meeting was quasi-judicial in nature and, therefore, the appearance of fairness and conflict of interest rules apply; • that the purpose of this meeting was for the Council to take action relating to the Appellants' appeal of the Planning Commission's September 22 decision; • that this was a closed- record meeting, and that no new or additional evidence would be taken. The presentations by the parties or their representatives or attorneys would be limited to argument, explanation of their positions and response to the other Appellants' argument, based on the record already created before the Planning Commission; • that only the parties to the appeal could present argument at the proceeding; • that the Council is familiar with the Planning Commission's decision and the record in this case, as well as the arguments of and issues raised by the Appellants; and • that the Councilmembers would have a right to ask questions of the parties. 13. The Councilmembers did an appearance of fairness and conflict of interest disclosure. No party, nor any member of the public, made any objection to any of the Councilmembers hearing or deciding the appeal. 14. The City Council heard presentations by Mr. Nathan West, Planning Director for the City, and Mr. William Bloor, City Attorney, on behalf of City Staff, Mr. Toby Thaler, attorney for the seven appellants, and Mr. Tom Backer, attorney for Nippon. The Council asked questions of all of the speakers, and fully considered the argument and explanations by all speakers. The Councilmembers were fully advised of the parties' positions and arguments. All parties were given a full and fair opportunity to speak and to present their positions. 15.. The Appellants argued that the Planning Commission engaged in unlawful procedure in its conduct of the September 22, 2010 hearing. 16. The City Council finds that public notice of receipt of a complete shoreline substantial development permit application for the proposed activity was first published in the Peninsula Daily News on March 19, 2010, and mailed on March 18, 2010 to 99 surrounding property owners within and exceeding the 300 foot notice requirement of Sections 18.02.060 and 17.96.140 PAMC. Furthermore, on August 13, 2010, following the . environmental determination, notice was mailed to property owners who received the initial notice, with notice again placed in the Peninsula Daily News on August 15, 2010. A total of 174 days was provided for written public comment. Thirty -two (32) people in fact provided written comments to the Planning Commission, which the Commission considered. NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 6 e • • • 17. After reviewing the record, considering the briefs and oral presentations by the parties, the City Council finds that the Appellants did not meet their burden of proving that the Planning Commission engaged in any unlawful procedure in its conduct of the September 22, 2010 hearing. 18. The City Council finds that at the Planning Commission's September 22, 2010 public hearing, everyone who requested to speak was permitted to speak, that everyone was given the same, fair amount of time to speak, that no speaker was cut off or treated unfairly, and that the Planning Commission was fully advised on the relevant facts and issues, and that its decision was supported by substantial evidence in the record. 19. The Appellants argued that the Planning Commission erred in failing to evaluate the Nippon project as an electrical utility requiring a Shoreline Conditional Use Permit. 20. After reviewing the record, considering the briefs and oral presentations by the parties, the City Council finds that the Appellants did not meet their burden of proving that the Planning Commission erred in failing to evaluate the Nippon project as an electrical utility requiring a Shoreline Conditional Use Permit. 21. The City Council finds that the principle use of the Nippon property and structures on the site is as a paper mill, and that the proposed project will not change the principle use of the property or structures as a mill. 22. The City Council finds that the proposed use of excess steam for electrical generation is an accessory use under the Port Angeles Municipal Code, and thus the project is permitted outright, and does not need a conditional use permit. 23. The Appellants argued that the Planning Commission erroneously interpreted and misapplied the City's Shoreline Master Plan Utility Provisions. 24. After reviewing the record, considering the briefs and oral presentations by the parties, the City Council finds that the Appellants did not meet their burden of proving that the Planning Commission erroneously interpreted and/or misapplied the City's Shoreline Master Plan Utility Provisions. 25. The Appellants argued that the Planning Commission improperly determined that the Permit would not result in adverse environmental impacts. 26. After reviewing the record, considering the briefs and oral presentations by the parties, the City Council finds that the Appellants did not meet their burden of proving that the Planning Commission improperly determined that the shoreline substantial development permit would not result in adverse environmental impacts. 27. The City Council finds that the Olympic Region Clean Air Agency (ORCAA) will administer state and federal air quality standards f or the project and will monitor the project for compliance. NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL . FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 201 0) - 7 CONCLUSIONS OF LAW 1.. This is a closed record appeal. "Closed record appeal" means an administrative appeal on the record to a local government body or officer, including the legislative body, following an open record hearing on a project permit application when the appeal is on the record with no or limited new evidence or information allowed to be submitted and only appeal argument allowed. RCW 36.70B.020(1); PAMC 15.08.100. Accordingly, no new or additional evidence is permitted, and no such new or additional evidence, documents or testimony was offered by any party to this proceeding, nor was any considered by the City Council in deciding this matter. 2. The City Council may reverse, affirm (wholly or partly), modify or remand the Planning Commission's September 22, 2010 Decision. 3. The City Council has jurisdiction to hear and decide this appeal pursuant to Ch, 36,70B RCW, and PAMC 15.08.100. 4. The Appellants have standing under the Port Angeles Municipal Code and under general standing rules to challenge the Planning Commission's Decision. 5. The appeal by the seven appellants was timely filed, served and perfected pursuant to RCW Ch. 36.70B, and PAMC 15.08.100. 6. The Mayor has authority to act as presiding officer, and to review documents and hear argument. RCW 35A.12.100. The Mayor acted as the Presiding Officer in this matter. 7. The record consisted solely of those documents and exhibits which were before the Planning Commission when it rendered its decision on September 22, 2010, and which were transmitted to the parties and their attorneys pursuant to the November 18, 2010 e -mail by William Bloor, as well as the Notice of Appeal and those documents referenced in the exhibits box of this Decision. 8. All conclusions of law set forth in the Planning Commission's September 22, 2010 Decision are incorporated herein by this reference and are hereby made a part of this Decision as if fully set forth herein. 9. The Appellants and the public were given timely and proper notice of the appeal proceeding date, the appeal hearing rules, and all applicable closed - record appeal procedures. There were no objections by any party or member of the public to the notice of the hearing, or the process or procedure used in these proceedings, although Appellants objected to the timing of the appeal process. 10. The Planning Commission's September 22, 2010 decision is presumed valid. Purse Seine Vessel Owners v. State, 92 Wn. App. 381, 388, 966 P.2d 928 (1998). NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 8 • • 11. The Appellants have the burden of proof and of persuasion to establish that Planning Commission's September 22, 2010 Decision is in error, invalid, unlawful or unsupported by evidence. Purse Seine Vessel Owners v. State, 92 Wn. App. 381, 388, 966 P.2d 928 (1998). 12. In reviewing the findings and decision of the Planning Commission, the City Council must give deference to the Planning Commission's role and expertise. Citizens for Preserve Pioneer Park LLC v. City of Mercer Island, 106 Wn. App. 461, 24 P.3d 1079 (2001). Deference is also due to the Planning Commission under Ch. 15.08 of the Port Angeles Municipal Code, under which the Planning Commission is designated as the "Shoreline Advisory Committee." PANIC 15.08.070. 13. The Appellants cannot base their claims of error or their request for relief on speculation or conjecture. The City Council's decision must be based on evidence in the record, not on assumptions, speculation or information outside of the established record. Boehm v. City of Vancouver, 111 Wn. App. 711, 713, 720, 47 P.3d 137 (2002); Moss v. City of Bellingham, 109 Wn. App. 6, 23, 31 P.3d 703 (2001). A reviewing body such as the City Council cannot assume that a lower hearing body failed to consider relevant issues; rather, there must be specific evidence that the lower body did not consider all of the facts and issues. West Slope Community Council et. al. v. City of Tacoma, 18 Wn. App. 328, 569 P.2d 1183 (1971) (Court will not presume that City Council failed to become informed on the issues). 14. The City has a mandatory obligation to comply with its own Code, and cannot ignore mandatory Code requirements. Public agencies like the City must follow their own rules and regulations. Skamania County v. Woodall, 104 Wn. App. 525, 539, 16 P.3d 701, rev. denied, 144 Wn.2d 1021, 34 P.3d 12332 (2002), Bert. denied, 535 U.S. 980 (2002). The City Council does not have authority to waive code requirements. 15. Standards of Review. Pursuant to Resolution no. 24 -2 and the "Rules for Closed Record Proceeding on December 6, 2010," Appellants have the burden of proof to establish at least one of the following: a. The Planning Commission engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; b. 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; c. 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. d. The decision of the Planning Commission is a clearly erroneous application of the law to the facts (established by the Planning Commission); or e. The decision of the Planning Commission is outside the authority or jurisdiction of the Planning Commission. NO BIOMASS BURN, ET: AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 9 16. No statutory, code or established deadlines or timelines were violated by the Planning Commission in setting or conducting the open record hearing, or in making its decision. 17. Industrial uses — such as the Nippon mill and associated uses — and electric utility uses are allowed in the Urban Harbor shoreline designation. 18. The Olympic Region Clean Air Agency (ORCAA) will administer state and federal air quality standards for the project and will monitor the project for compliance; therefore there is no basis to reverse, modify or remand this matter based on any alleged air quality impacts. 19. Based on the record before the Planning Commission, the Appellants' Notice of Appeal, the Briefs submitted by the parties to this proceeding, and the presentations by the parties at the December 6, 2010 closed record proceeding, the City Council concludes that the Planning Commission did not engage in unlawful procedure in its conduct of the September 22, 2010 hearing, and that the Appellants have not satisfied their burden to reverse, modify or remand the Planning Commission's September 22, 2010 Decision in this regard. 20. Based on the record before the Planning Commission, the Appellants' Notice of Appeal, the Briefs submitted by the parties to this proceeding, and the presentations by the parties at the December 6, 2010 closed record proceeding, the City Council concludes that the Planning Commission did not err in making an erroneous interpretation of law, and that the Appellants have not satisfied their burden to reverse, modify or remand the Planning Commission's September 22, 2010 Decision in this regard. 21. Based on the record before the Planning Commission, the Appellants' Notice of Appeal, the Briefs submitted by the parties to this proceeding, and the presentations by the parties at the December 6, 2010 closed record proceeding, the City Council concludes that the Planning Commission did not err in making its decision and that the decision is supported by evidence that is substantial when viewed in light of the whole (established) record before the Planning Commission, and that the Appellants have not satisfied their burden to reverse, modify or remand the Planning Commission's September 22, 2010 Decision in this regard. 22. Based on the record before the Planning Commission, the Appellants' Notice of Appeal, the Briefs submitted by the parties to this proceeding, and the presentations by the parties at the December 6, 2010 closed record proceeding, the City Council concludes that the Decision made by the Planning Commission on September 22, 2010 is based on reliable and competent application of the law to the facts, and the City Council finds no error in its decision, nor any basis to reverse, modify or remand the decision. 23. Based on the record before the Planning Commission, the Appellants' Notice of Appeal, the Briefs submitted by the parties to this proceeding, and the presentations by the parties at the December 6, 2010 closed record proceeding, the City Council concludes that the Planning Commission did not erroneously make a decision outside the authority or jurisdiction of the Planning Commission, and that the Appellants have not satisfied their burden to reverse, modify or remand the Planning Commission's September 22, 2010 Decision in this regard. NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 10 • • 24. Based on the record before the Planning Commission, the Appellants' Notice of Appeal, the Briefs submitted by the parties to this proceeding, and the presentations by the parties at the December 6, 2010 closed record proceeding, the City Council concludes that all potential environmental impacts of the project were fully and fairly evaluated in the EIS, and that the project, as proposed and conditioned, will not result in significant adverse environmental impacts. 25. This proceeding was timely scheduled and this Decision is timely issued in accordance with State law policy requiring prompt adjudication of land use permitting issues, and in accordance with all other procedural requirements pursuant to Port Angeles Municipal Code. Bellewood No. 1 LLC v. Lorna, 124 Wn. App. 45, 49, 97 P.3d 747 (2004) (State policy favors expeditious review of land use decisions so that legal uncertainties can be promptly resolved and land development not be unnecessarily delayed); Jewell v. Kirkland, 50 Wn. App. 813, 820 -21, 750 P.2d 1307 (1988) (same). Attest: BASED UPON THE FOREGOING Findings of Fact and Conclusions of Law, the Port Angeles City Council makes the following: Janessa Hurd, City Clerk Approved as to form: DECISION Appellants' Appeal of the Planning Commission's September 22, 2010 Decision is DENIED. The Planning Commission's September 22, 2010 Decision is hereby AFFIRMED. This constitutes the City Council's Final Decision on the Appellants' closed record appeal. DECIDED this 28 day of December, 2010. Michael C. Walter Special Legal Counsel to Port Angeles City Council NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, C0NCLUSIONS OF LAW AND DECISION (December 28, 2010) - 11 THE HONORABLE DAN DI GUILIO, Mayor APPEAL/JUDICIAL REVIEW This Decision is a final decision of the Port Angeles City Council on the closed record appeal by No Biomass Burn, Port Townsend Air Watchers, Center for Environmental Law and Policy, World Temperate Rainforest Network, Olympic Environmental Council, Olympic Forest Coalition, and the Sierra Club The Appellants can appeal this decision to the State Shoreline Hearing Board (Environmental Hearing Office) pursuant to State law and procedures. NO BIOMASS BURN, ET. AL., CLOSED RECORD APPEAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION (December 28, 2010) - 12 •