Online Information Resources - CityClerk (2024)

ORDINANCE _________________

AN ORDINANCE relating to noise control, amending various sections and adding new sections to Chapter 25.08 of the Seattle Municipal Code, to provide for a major public project construction variance for major public construction projects, to updatevarious provisions to conform to new technology and changes in technology, to revise the enforcement procedures to provide for stop work orders, revocation of variances, citations and civil penalties, to revise various provisions to update and clarifyreferences and correct grammar and other errors, and repealing Sections 25.08.130, 25.08.240, 25.08.535, 25.08.620, 25.08.750, 25.08.770, 25.08.780, 25.08.790 and 25.08.810.

WHEREAS, it is the policy of the City of Seattle to minimize the exposure of citizens to the physiological and psychological dangers of excessive noise and to protect, promote and preserve the public health, safety and welfare; and

WHEREAS, it is the express intent of the City to control the level of noise in a manner that promotes commerce; the use, value and enjoyment of property; sleep and repose; and the quality of the environment; and

WHEREAS, construction of major public infrastructure projects may result in noise impacts to adjacent business and residential properties oftentimes along linear corridors and of substantial duration; and

WHEREAS, several such major public infrastructure projects are either underway or are proposed for construction in the near future, including Sound Transit's Link Light Rail and the Alaskan Way Viaduct and Seawall Replacement Project; and

WHEREAS, the noise code does not clearly identify a process for qualifying for and obtaining construction noise variances for major, public, more than six-month construction projects; and

WHEREAS, the ability to work during nighttime hours is often essential to complete such projects on a timely and financially feasible schedule; and

WHEREAS, the proposed changes in the noise ordinance do not increase the exterior sound levels allowed during construction from what is allowed in the current ordinance, while providing for a variance from these levels for major public constructionprojects; and

WHEREAS, the noise ordinance has not been amended in recent years to reflect technological changes in how to measure noise impacts, changes in other codes and ordinances, or to make grammar changes; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. Consistent with Section 25.08.020 of the Seattle Municipal Code, the City finds that it has continued to study the problem of noise since the previous finding in 1977. On the basis of this experience and knowledge of conditions within theCity, the City Council finds that special conditions continue to exist in the City that make necessary the differences between this chapter 25.08 and the noise regulations adopted by the Department of Ecology.

Section 2. Section 25.08.040 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.040 Definitions generally Gender.

All technical terminology used in this chapter, not defined in this subchapter, shall be interpreted in conformance with American National Standards Institute Specifications, Section 1.11960 and Section 1.4-1971. Words used in the masculine gender includethe feminine and words used in the feminine gender include the masculine. For the purposes of this chapter the words and phrases used herein shall have the meanings set forth in the following sections of this subchapter.

Section 3. Section 25.08.050 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.050 Administrative Code.

"Administrative Code" means the Administrative Code of The City of Seattle (Ordinance 102228) as now or hereafter amended.

Section 4. Section 25.08.060 of the Seattle Municipal Code, which Section was last amended by Ordinance 121276, is amended as follows:

25.08.060 Administrator.

"Administrator" means the Director of the Department of Planning and Development or his or her authorized representative , except that the Director of the Public Health-Seattleand King County or his or her authorized representative shall continue to be the "Administrator" of Subchapter VII Variances through December 31, 1993.

Section 5. A new Section 25.08.069 of the Seattle Municipal Code is adopted to read as follows:

25.08.069 City Holiday

"City Holiday" the days during which city offices are not open for transaction of business as provided by SMC 3.102.010.

Section 6. Section 25.08.100 of the Seattle Municipal Code, which Section was last amended by Ordinance 115041, is amended as follows:

25.08.100 Districts.

"District" means the land use zones to which the provisions of this chapter are applied. For the purposes of this chapter:

A. "Rural District" includes zones designated in the King County Zoning Code as A, F-R, F-P, S-E, G, and S-R greater than thirty-five thousand (35,000) square feet.

B. "Residential District" includes zones designated in the King County Zoning Code as R-S, R-D, R-M, B-N, and S-R less than thirty-five thousand (35,000) square feet, and zones defined asresidential zones and NC1 zones in The Seattle Land Use Code, Title 23.

C. "Commercial District" includes zones designated in the King County Zoning Code as B-C, C-G, M-L, and MP, and zones designated as NC2, NC3, C1, C2,DOC1, DOC2, DRC, DMC, PSM, IDM, DH1, DH2, PMM, and IB in the Seattle Land Use Code, Title 23.

D. "Industrial District" includes zones designated in the King County Zoning Code as M-H, Q-M, and unclassified uses and zones designated as IG1, IG2, and IC in the SeattleLand Use Code, Title 23.

Section 7. A new Section 25.08.155 of the Seattle Municipal Code, is adopted to read as follows:

25.08.155 Legal Holiday.

"Legal Holiday" means the following holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after, and Christmas Day.

Section 8. Section 25.08.160 of the Seattle Municipal Code, which Section was last amended by Ordinance 108552, is amended as follows:

25.08.160 L eq ."L eq" means the constant sound level that, in a given situation and timeperiod, conveys the same sound energy as the actual time-varying A-weighted sound. The time period applicable mustbe specified.

Section 9. A new Section 25.08.165 of the Seattle Municipal Code, is adopted to read as follows:

25.08.165 Lmax.

"Lmax" means the maximum sound level over a measurement interval determined by using a sound level meter set to "Fast" response time.

Section 10. A new Section 25.08.168 of the Seattle Municipal Code, is adopted to read as follows:

25.08.168 Major public project

"Major public project" means a project for a public facility as defined in SMC Title 23, the construction of which the Administrator determines is likely to be of at least six months duration, and is likely to have a substantial impact on the publicsafety, health and welfare and the provision of public services, including transportation services. In making this determination the Administrator shall consider factors such as the expected size, complexity or cost of the proposed construction orreconstruction; the expected duration of the proposed construction or reconstruction; the magnitude of the expected impacts on traffic and transportation; and/or the degree of impact on the provision of public services during the proposed constructionor reconstruction.

Section 11. Section 25.08.180 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.180 Motor vehicle.

"Motor vehicle" means any vehicle which is self-propelled, used primarily for transporting persons or property upon public highways and required to be licensed under RCW46.16.010. (Aircraft, watercraft and vehicles used exclusively on stationary rails or tracks are not motor vehicles as that term is used in this chapter.)

Section 12. Section 25.08.190 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.190 Motor vehicle racing event.

"Motor vehicle racing event" means any competition between motor vehicles and/or off-highway vehicles under the auspices of a sanctioning body recognized by the Administrator under rules adopted in accordance with the Administrative Code.

Section 13. Section 25.08.230 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.230 Off-highway vehicle.

"Off-highway vehicle" means any self-propelled motor-driven vehicle not used primarily for transporting persons or property upon public highways nor required to be licensed under RCW 46.16.010. The term "off-highway vehicle"shall not include special construction vehicles.

Section 14. Section 25.08.270 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.270 Public highway ."Public highway" means the entire width between the boundary lines of every way publicly maintained by the Department ofHighways or any county or city when any part thereof is generally open to the use of the public for purposes of vehicular travel as a matter ofright.

Section 15. Section 25.08.300 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.300 Real property.

"Real property" means an interest or aggregate of rights in land which is guaranteed and protected by law; for purposes of this chapter, the term "real property" includes a leasehold interest.

Section 16. Section 25.08.320 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.320 Sound level.

"Sound level" means the weighted sound pressure level measured by the use of a metering characteristic and weighted as specified in American National Standards Institute Specifications, Section 1.4- 1971. The sound pressure level of a sound expressed in decibels is twenty (20) times the logarithm to the base ten (10) of the ratio of the pressure of the sound to the reference sound pressure of twenty (20)micropascals. In the absence of any specific modifier, the level is understood to be that of a mean-square pressure.

Section 17. Section 25.08.330 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.330 Sound level meter.

"Sound level meter" means a sound level measuring device, either Type I or Type II, as defined by American National Standards Institute Specifications, Section 1.4 1971.Section 18. Section 25.08.340 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.340 Special construction vehicle.

"Special construction vehicle" means any vehicle which is designed and used primarily for grading, paving, earth moving, and other construction work; and which is not designed or used primarily for the transportation of persons or property on a public highway; and which is only incidentally operated or moved over the highway.

Section 19. Section 25.08.380 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.380 Weekday.

"Weekday" means any day Monday through Friday which is not a legal holiday.

Section 20. Section 25.08.390 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.390 Weekend.

"Weekend" means Saturday and Sunday or any legal holiday.

Section 21. Section 25.08.400 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.400 Unlawful sounds.

It is unlawful for any person to cause sound, or for any person in possession of property to permit sound originating from such property, to intrude into the real property of another person whenever such sound exceeds the maximumpermissible sound levels established by this subchapter.

Section 22. Section 25.08.410 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.410 Maximum permissiblesound levels .

For sound sources located within the City or King County, the maximum permissible soundlevels are as follows:

Section 23. Section 25.08.420 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.420 Modifications to maximum permissible sound levels

The maximum permissible sound levels established by this subchapter shall be reduced or increased by the sum of the following:

A. Between the hours of ten (10:00) p.m. and seven (7:00) a.m. during weekdays, and between the hours of ten(10:00) p.m. and nine (9:00) a.m. on weekends , the levels established by Section 25.08.410 are reduced by ten (10) dB(A) where the receiving property lies within a residential district of the City.

B. For any source of sound which is periodic , which has a pure tone component, or which is impulsive and is not measured with animpulse sound level meter, the levels established by this subchapter shall be reduced by five(5) Db(A); provided, however, that this five ( 5) dB(A)penalty for the emission of sound having a pure tone component shall not be imposed on any electrical substation, whether existing or new.

C. For any source of sound which is of short duration, the levelsestablished by this subchapter are increased by: 1. Five (5) dB(A) for a total of fifteen (15) minutes in any one (1) hour period; or

2. Ten (10) dB(A) for a total of five (5) minutes in any one (1) hour period; or

3. Fifteen (15) dB(A) for a total of 1.5 minutes in any one (1) hour period.

25.08.425 Construction and equipment operations.

A. The maximum permissible sound levels established by Sections 25.08.410 and 25.08.420, as measured from the real property of another person or at a distance of fifty (50) feet from the equipment , whichever isgreater, may be exceeded between the hours of seven (7:00) a.m. and ten (10:00) p.m. on weekdays and between the hours of nine (9:00) a.m. and ten (10:00) p.m. on weekends by no more than thefollowing dB(A)'s for the following types of equipment:

1. Twenty-five (25)dB(A) for equipment on construction sites, including but not limited to crawlers, tractors, dozers, rotary drills and augers, loaders, power shovels, cranes, derricks, graders, off-highway trucks, ditchers,trenchers, compactors, compressors, and pneumatic-powered equipment;

2. Twenty (20)dB(A) for portable powered equipment used in temporary locations in support of construction activities or used in the maintenance of public facilities, including but not limited to chainsaws, log chippers, lawnand garden maintenance equipment, and powered hand tools; or

3. Fifteen (15)dB(A) for powered equipment used in temporary or periodic maintenance or repair of the grounds and appurtenances of residential property, including but not limited to lawnmowers, powered hand tools,snow-removal equipment, and composters.

B. Sounds created by impact types of construction equipment, including but not limited to pavement breakers, piledrivers, jackhammers, sandblasting tools, or by other types ofequipment or devices which create impulse noise or impact noise or are used as impact equipment, asmeasured at the property line or fifty ( 50) feet from the equipment, whichever is greater, may exceed the maximumexterior sound level limits established in subsectionA of this sectionin any one (1) hour period between the hours of eight (8:00) a.m.and five (5:00) p.m. on weekdays and nine ( 9:00) a.m. and five (5:00) p.m. onweekends , but in no event to exceed the following:

1. Le q ninety (90) dB(A) continuously;

2. Le q ninety-three (93) dB(A) for thirty (30) minutes;

3. Le q ninety-six (96) dB(A) for fifteen (15) minutes; or

4. Le q ninety-nine (99) dB(A) for seven and one-half (7-1/2) minutes; provided that soundlevels in excess of Le q ninety-nine ( 99) dB(A) are prohibited unless authorized by variance obtained from the Administrator; and provided furtherthat sources producing sound levels less than ninety (90) dB(A) shall comply with subsection A of this section during those hours not covered bythis subsection Ba. The standard of measurement shall be a one (1) hour L eq . L eq may be measured for times not less than one (1) minute to project an hourly L eq . Reference to one (1) hour is for measurement purposes only andshall not be construed as limiting construction to a one (1) hour period.

b. These subsections A and B shall be reviewed periodically by the City to assure that the sound level limits are technically feasible.

C. Construction activity that exceeds the maximum permissible soundlevels established by Section 25.08.410, when measured from the interior of buildings within a commercial district, is prohibited between the hours of eight(8:00) a.m. and five (5:00) p.m. For purposes of this subsectionC, interior sound levels shall be measured only after everyreasonable effort, including but not limited to closing windows and doors, is taken to reduce the impact of the exterior construction noise.

Section 25. Section 25.08.430 of the Seattle Municipal Code, which Section was last amended by Ordinance 120481, is amended as follows:

25.08.430 Sounds created by operation of motor vehicles.

It is unlawful for any person to operate upon any public highway any motor vehicle or any combination of motor vehicles under any conditions of grade, load, acceleration or deceleration in such mannerso that the motor vehicle's exhaust noise exceeds ninety-five (95) decibels as measured by the Society of Automotive Engineers (SAE) test procedure J1169 (May 1998).

Section 26. Section 25.08.470 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.470 Sale of new motor vehicles which exceed limits.

It is unlawful for any person to sell or offer for sale a new motor vehicle, except an off-highway vehicle, which produces a maximum sound level exceeding the following maximum permissible sound levels at a distance of fifty (50)feet, by acceleration test procedures established by the State Commission on Equipment:

Section 27. Section 25.08.480 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.480 Motor vehicle exemptions.

Sounds created by motor vehicles are exempt from the maximum permissible sound levels of Subchapter III, except that sounds created by any motorvehicle operated off public highways shall be subject to the sound levels of Subchapter III when the sounds are received within a residentialdistrict of the City.

Section 28. Section 25.08.485 of the Seattle Municipal Code, which Section was last amended by Ordinance 109099, is amended as follows:

25.08.485 Watercraft.

A. It is unlawful for any person to operate any watercraft in such a manner as to exceed the following maximum noise limits when measured within fifty(50 ) feet of the shoreline or anywhere within a receiving property:

1. At any hour of the day or night, the limit for any receiving property shall be seventy-four (74) dB(A), except that;

2. Between sunset and sunrise the limit for any receiving property within a residential or rural district shall be sixty-four (64) dB(A). For the purpose of administering and enforcing this section, sunset will be interpreted as ten (10:00) p.m. and sunrise will be interpretedas seven (7:00) a.m.

B. It is unlawful for any person to operate any watercraft, except aircraft, which is not equipped with a functioning underwater exhaust or a properly installed and adequately maintained muffler. Any ofthe following defects in the muffling system shall constitute a violation of this subsection:

1. The absence of a muffler;

2. The presence of a muffler cutout, bypass, or similar device which is not standard or normal equipment for the exhaust system being inspected;

3. Defects in the exhaust system including, but not limited to, pinched outlets, holes, or rusted-through areas of the muffler or pipes; and

4. The presence of equipment which will produce excessive or unusual noise from the exhaust system. Dry stacks or water-injected stacks not containing a series of chambers or mechanical designseffective in reducing sound shall not be considered as adequately maintained mufflers.

C. The following exemptions shall apply to sounds created by watercraft or watercraft operations:

1. Normal docking, undocking, and water skier pick-up and drop-off operations of all watercraft shall be exempt from provisions in subsection A;

2. Sounds created by the operation of commercial, nonrecreational watercraft are exempt at all times for provisions of this chapter. These commercial activities include, but are not limited to,tugboats, fishing boats, ferries, and vessels engaged in intrastate, interstate, or international commerce;

3. Sounds created by boat races and regattas, and trials therefor as sanctioned by the Chief of Police acting as Port Warden pursuant to Section 27 of Ordinance 879831 as amended are exempt from provisions in this section and in this chapter between the hours of seven (7 :00) a.m. and ten(10:00) p.m. on weekdays and between the hours of nine (9:00) a.m. and ten (10:00) p.m. onweekends .

D. Nothing in this section shall be construed to limit the powers of the Chief of Police acting as Port Warden, as enumerated in Section 3 of Ordinance 879832 asamended.

Section 29. Section 25.08.510 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.510 Exempted sources.

No sound source specifically exempted from a maximum permissible sound level by this chapter shall be a public nuisancenoise or public disturbance noise , insofar as the particular source is exempted.

Section 30. Section 25.08.530 of the Seattle Municipal Code, which Section was last amended by Ordinance 112976, is amended as follows:

25.08.530 Sounds exempt at all times.

A. The following sounds are exempt from the provisions of this chapter at all times:

1. Sounds originating from aircraft in flight, and sounds which originate at airports and are directly related to flight operations;

2. Sounds created by safety and protective devices, such as relief valves, where noise suppression would defeat the safety release intent of the device;

3. Sounds created by fire alarms;

4. Sounds created by emergency equipment and emergency work necessary in the interests of law enforcement or of the health, safety or welfare of the community;

5. Sounds created by the discharge of firearms in the course of lawful hunting activities;

6. Sounds created by natural phenomena;

7. Sounds originating from forest harvesting and silviculture activity and from commercial agriculture, if the receiving property is located in a commercial or industrial district of the City;

8. Sounds created by auxiliary equipment on motor vehicles used for maintenance; and

9. Sounds created by warning devices or alarms not operated continuously for more than thirty (30) minutes per incident.

Section 31. Section 25.08.540 of the Seattle Municipal Code, which Section was last amended by Ordinance 112976, is amended as follows:

25.08.540 Sounds exempt during daytime hours Generally.

A. The following sounds are exempt from the provisions of this chapter between the hours of seven (7:00) a.m. and ten (10:00) p.m. onweekdays and between the hours of nine ( 9:00) a.m. and ten (10:00) p.m. on weekends :

1. Sounds created by bells, chimes, or carillons not operating for more than five (5) minutes in any one (1) hour;

2. Unamplified sounds originating from officially sanctioned parades and other public events;

3. Sounds created by the discharge of firearms on legally established shooting ranges;

4. Sounds created by blasting; and

5. Sounds originating from forest harvesting and silviculture activity and from commercial agriculture, if the receiving property is located in a residential district of the City. The Administrator is authorized to promulgate regulationswhich extend the hours during which this exemption shall be in effect to conform with operating laws designated by the Washington State Department ofNatural Resources in directing an official fire closure.

Section 32. Section 25.08.545 of the Seattle Municipal Code, which Section was last amended by Ordinance 108498, is amended as follows:

25.08.545 Sounds exempt during daytime hours-Aircraft testing and maintenance.

Sounds created by the testing or maintenance of aircraft, or of components of aircraft, are exempt from the provisions of this chapter between the hours of seven (7:00) a.m. and ten(10:00) p.m. on weekdays and between nine (9:00) a.m. and ten (10:00) p.m. on weekends , when performed according to the following instructions:

A. Testing and maintenance for any aircraft or component not connected thereto shall be performed at an airport designated as such by the Federal Aviation Administration prior to April 1, 1979, or designated as such by the Administrator at any time.

B. If the testing or maintenance is performed at the King County International Airport, the aircraft or component shall be entirely within the ultimate airport property line as shown on the map entitled "King County International Airport Airport LayoutPlan" (prepared December 1, 1976, revised October 10, 1978), and at areas designated by the Airport Manager: It is intended that this map be the reference map regardless of any future changes, providedthat the Administrator may grant exceptions to this subsection for good cause shown. A copy of the King County International Airport Layout Plan Map is on file in the City Clerk's office (C.F. 288269), at the office of the Airport Manager of the KingCounty International Airport, and at the Planning and Research Department of the Port of Seattle.

Section 33. Section 25.08.550 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.550 Sounds exempt from nighttime reduction.

The following sounds are exempt from the provisions of Section 25.08.420.A:

A. Sounds created by existing stationary equipment used in the conveyance of water by a utility; B. Sounds created by existing electrical substations ;

C. Sounds created by sources in industrial districts which, over the previous three (3) years, have consistently operated in excess of fifteen (15) hours per day as a demonstrated routine or as a consequence of process necessity; provided that suchexemption shall only extend to five (5) years after the effective date of the ordinance codified in this chapter.<1> Changes in working hours or activity which would increase the noise emitted under this exemption require the approval of theAdministrator, given under rules adopted in accordance with the Administrative Code.<2>

Section 34. Section 25.08.560 of the Seattle Municipal Code, which Section was last amended by Ordinance 110047, is amended as follows:

25.08.560 Application--Generally.

Any person who owns or is in possession of any property or use, or any process or equipment, may apply to the Administrator for a variance granting relief from the requirements of any provision of this chapter other thanSection 25.08.500 or rules or regulations promulgated hereunder governing the quality, nature, duration or extent of discharge of noise. Ina proper case, the variance may apply to all sources of a particular class or type. The application shall be accompanied by such information and data as the Administrator may require. In accordance with theAdministrative Code, , the Administrator shall promulgate rules and regulations governing application for and granting of such variances , including hearings and notice.

Section 35. Section 25.08.580 of the Seattle Municipal Code, which Section was last amended by Ordinance 107377, is amended as follows:

25.08.580 Discretion of Administrator.

A variance or its renewalshall not be a right of the applicant or holder thereof but shall be at the reasonable discretion of the Administrator.

Section 36. Section 25.08.590 of the Seattle Municipal Code, which Section was last amended by Ordinance 107377, is amended as follows:

25.08.590 Granting of variance.

No variance shall be granted pursuant to Sections 25.08.560 through 25.08.620 until the Administrator has considered the relative interests of the applicant, other owners or possessors of property likelyto be affected by the noise, and the general public.

A technical or economic variance may be granted only after a public hearing on duenotice.

The Administrator may grant a variance, if he finds that:

A. The noise occurring or proposed to occur does not endanger public health or safety; and

B. The applicant demonstrates that the criteria required for temporary, technical or economic variance under Sections 25.08.610 through25.08.630 are met . Section 37. Section 25.08.600 of the Seattle Municipal Code, which Section was last amended by Ordinance 107377, is amended as follows:

25.08.600 Renewal of variance.

Variances, except temporary variances, granted pursuant to this chapter may berenewedon terms and conditions and for periodswhich would be appropriate on the initial granting of a variance. Norenewal shall be granted except on application made at least sixty (60) days prior to the expiration of the variance .

Section 38. Section 25.08.610 of the Seattle Municipal Code, which Section was last amended by Ordinance 107377, is amended as follows:

25.08.610 Appeal procedure.

Any person aggrieved by the denial, grant , or the terms and conditions on the grant of an application for a variance orrenewal of a variance by the Administrator may appeal such decision to the Hearing Examiner under procedures contained in Subchapter IX

Section 39. A new Section 25.08.615 of the Seattle Municipal Code, is adopted to read as follows:

25.08.615 Revocation of Variance

A. Standards for revocation. Any noise variance may be revoked if:

1. The noise code or the conditions of the variance have been, or are being violated and issuance of a notice of violation or stop work order has been, or would be ineffective to secure compliance because of circ*mstances related to the violation; or

2. The variance was obtained with false or misleading information.

B. Notice of Revocation. Whenever the Administrator determines there are grounds for revoking a variance, the Administrator may issue a Notice of Revocation.

1. The Notice of Revocation shall identify the reason for the proposed revocation, including the violations, the conditions violated, and/or the alleged false or misleading information provided.

2. The Notice of Revocation shall be served on the owner of the property on which the work is occurring, the holder of the variance, and the person doing or causing the work to be done.

3. The Notice of Revocation shall be served in the manner set forth in RCW 4.28.080 for service of a summons or sent by first class mail. The Notice of Revocation may also be posted in a conspicuous place on the site. For purposes of this section,service is complete at the time of personal service, or if mailed, three days after the date of mailing. When the last day of the period so computed is a Saturday, Sunday or City holiday, the period runs until 5 p.m. on the next business day.

4. The Administrator shall identify in the Notice of Revocation a date certain on which the revocation will take effect unless review before the Administrator is requested and pursued pursuant to subsection 25.08.615.C.

C. Review by the Administrator.

1. Any person aggrieved by a Notice of Revocation of a noise variance may obtain a review by making a request in writing to the Administrator within three business days of the date of service of the Notice of Revocation.

2. The review shall occur within five business days after receipt by the Administrator of the request for review.

3. Any person aggrieved by or interested in the Notice of Revocation may submit additional information to the Administrator for consideration as part of the review at any time prior to the review.

4. The review will be made by a representative of the Administrator who will review all additional information received and may also request a site visit. After the review, the Administrator may:

a. Sustain the Notice of Revocation and set or modify the date the revocation will take effect;

b. Withdraw the Notice of Revocation;

c. Modify the Notice of Revocation and set or modify the date the revocation will take effect; or

d. Continue the review to a date certain for receipt of additional information.

D. Order of the Administrator.1. The Administrator shall issue an Order of the Administrator containing the decision within ten days after the review and shall cause the same to be sent by first class mail to the person or persons requesting the review, any other personon whom the Notice of Revocation was served, and any other person who requested a copy before issuance of the Order of the Administrator.

2. The Order of the Administrator is the final order of the City and the City and all parties shall be bound by the Order unless judicial review is sought pursuant to subsection 25.08.615.E.

E. Judicial Review. Any judicial review must be commenced pursuant to RCW 36.70C within 21 days after issuance of the Order of the Administrator.

Section 40. Section 25.08.630 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.630 Temporary variance.

The Administrator may grant a temporary variance, not to exceed fourteen (14) days, for any activity, use, process or equipment which theAdministrator determines, in accordance with rules and regulations, does not annoy a substantial number of the people and does not endanger public health or safety.

Section 41. Section 25.08.640 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.640 Technical variance.

A technical variance may be granted by the Administrator on the ground that there is no practical means known or available for the adequate prevention, abatement or control of the noise involved. Any technical variance shall be subject tothe holder's taking of any alternative measures that the Administrator may prescribe. The duration of each technical variance shall be until suchpractical means for prevention, abatement or control become known or available. The holder of a technical variance , as required by the Administrator, shall make reports to the Administrator, , detailing actions taken to develop a means of noise control or to reduce the noise involved and must relate these actions to pertinent currenttechnology.

Section 42. Section 25.08.650 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.650 Economic variance.

An economic variance may be granted by the Administrator on the ground that compliance with the particular requirement or requirements from which the variance is sought will require the taking of measures which, because of their extent or cost, must be spread over a period of time. The duration of an economic variance shall be for a period not to exceed such reasonable time as is required in the view of the Administrator for the takingof the necessary measures. An economic variance shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to the timetable.

Section 43. A new Section 25.08.655 of the Seattle Municipal Code, is adopted to read as follows:25.08.655 Major Public Project Construction Variance

A. The Administrator may grant a major public project construction variance to provide relief from the exterior sound level limits established by this chapter during the construction periods of major public projects. A major public project constructionvariance shall provide relief from the exterior sound level limits during the construction or reconstruction of a major public project only to the extent the applicant demonstrates that compliance with the levels would:

1. Be unreasonable in light of public or worker safety or cause the applicant to violate other applicable regulations, including but not limited to regulations that reduce impacts on transportation infrastructure or natural resources; or

2. Render the project economically or functionally unreasonable due to factors such as the financial cost of compliance or the impact of complying for the duration of the construction or reconstruction of the major public project.

B. A major public project construction variance shall set forth the period or periods during which the variance is effective, which period or periods shall be the minimum reasonably necessary in light of the standard set forth in subsection A, and theexterior sound level limits that will be in effect during the period of the variance. Different major public project construction variances may be issued for distinct phases of a construction project, or one major public project construction variancemay be issued for the entire major public project. The period or periods during which a major public project construction variance is effective may be stated in terms of calendar dates or in terms of the duration of a construction project or a phase orphases of a construction project.

C. The Administrator shall condition a major public project construction variance as necessary to provide reasonable control or mitigation of the construction noise that may be expected to occur pursuant to the variance.

D. One-year review and decision.1. No later than one year after the start of construction to which a major public project construction variance applies, the Administrator shall review, and provide opportunity for public comment on, the operation of the variance duringthe first year, including the provisions of the Noise Management and Mitigation Plan, and the conditions of the variance. For purposes of determining the date of the start of the project's construction work, site exploration work is excluded.

2. After considering the public comments received, the Administrator may modify the terms and conditions of the variance or the Noise Management and Mitigation plan as needed if the Administrator determines that the current variance, the conditions ofthe variance, or the Noise Management and Mitigation Plan are not adequately protecting the public health and safety or reasonably controlling or mitigating the construction noise, or that there are more reasonable methods of doing so.

3. The Administrator shall make a decision whether to modify a variance pursuant to this review within one-year and 90 days after the start of construction work as provided in subsection 25.08.655.D.1.

4. Appeal. Any person aggrieved by the decision of the Administrator whether to modify a variance pursuant to this subsection 25.08.655.D may appeal such decision by filing an appeal in writing with the Hearing Examiner by 5 p.m. of the tenth dayfollowing the date of the issuance of the decision. When the last day of the appeal period is a Saturday, Sunday, or federal or City holiday, the appeal may be filed until 5 p.m. on the next business day. The Hearing Examiner appeal shall be conductedpursuant to section 25.08.610.

5. Effective date. The decision of the Administrator whether to modify a variance pursuant to this subsection 25.08.655.D is effective 30 days following the decision unless it is appealed to the Hearing Examiner. If the Administrator's decision isappealed to the Hearing Examiner, the Administrator's decision does not take effect and the original terms and conditions of the variance remain in effect until the effective date of the Hearing Examiner decision. The Hearing Examiner decision is afinal decision of the City for purposes of RCW 36.70C, and is effective 30 days from the date of the decision, unless otherwise ordered by a court. If a court stays the effective date of the decision, the original unmodified variance shall remain ineffect during the stay.

Section 44. Section 25.08.670 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.670 Duties of Administrator.

The duties of the Administrator shall include, but are not limited to:

A. Obtaining assistance from other appropriate City departments and divisions;

B. Training field inspectors;

C. Purchasing measuring instruments and training inspectors in their calibration and use;

D. Promulgating and publishing rules and procedures, in accordance with the Administrative Code, to establish techniques for measuring or reducing noise and to provide for clarification, interpretation, andimplementation of this chapter;

E. Investigating citizens' noise complaints;

F. Issuing orders for the reduction or elimination of noise in accordance with Subchapter IX;

G. Assisting citizens and City departments in evaluating and reducing the noise impact of their activities;

H. Assisting City planning officials in evaluating the noise component in planning and zoning actions;

I. Instituting a public education program on noise; and

J. Reviewing at least every three (3) years the provisions of this chapter and recommending revisions consistent with technology to reduce noise.

Section 45. Section 25.08.680 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.680 Measurement of sound.

If the measurements of sound are made with a sound level meter, it shall be an instrument in good operating condition and shall meet the requirements for a Type I or Type II instrument, as described in American National Standards InstituteSpecifications, Section 1.4- 1971 If the measurements are made with other instruments, or assemblages of instruments, the procedure must be carried out in suchmanner that the overall accuracy shall be at least that called for in Section 1.4-1971 for Type II instruments.

Section 46. Section 25.08.700 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.700 Receiving properties within more than one district.

Where a receiving property lies within more than one district, the maximum permissible sound levels shall be determined by the district withinwhich the measurement is made.

Section 47. Section 25.08.710 of the Seattle Municipal Code, which Section was last amended by Ordinance 110047, is amended as follows:

25.08.710 Right of entry --Administrator.

Upon presentation of proper credentials, the Administrator, with the consent of the occupant , or with the consent of the owner of any unoccupiedbuilding, structure, property or portion thereof, or pursuant to a lawfully issued warrant may enter at all reasonable times, any building, structure, property orportion thereof to inspect the same whenever necessary to make an inspection to enforce or determine compliance with the provisions of this chapter over which he hasenforcement responsibility or whenever he has cause to believe that a violation of any provision of this chapter other than Section 25.08.500 has been or is being committed; provided, if the building, structure,property or portion thereof is unoccupied, the Administrator shall first make a reasonable effort to locate the owner or other persons having charge or control of the building,structure, property or portion thereof and demand entry. If the Administrator is unable to locate the owner or such other persons and he has reason to believe that conditions thereincreate an immediate and irreparable health hazard, then he shall make entry.

Section 48. A new Section 25.08.720 of the Seattle Municipal Code, is adopted to read as follows:

25.08.720 Stop Work Order

A. Stop Work Order. A Stop Work Order may be issued whenever a violation of this Code or a violation of the conditions of a variance threatens the health or safety of the public or materially impairs the Administrator's ability to secure compliancewith this Code.

1. The Stop Work Order must specify the violation and may prohibit all or any work or other activity at the site that is a cause of the code violation or the violation of the variance condition.

2. The Administrator may serve the Stop Work Order by posting it in a conspicuous place at the site, if posting is physically possible. If posting is not physically possible, then the Stop Work Order may be served in the manner set forth in RCW4.28.080 for service of a summons or by sending it by first class mail to the last known address of: the property owner(s), the person(s) doing or causing the work to be done, and the holder of any variance if work is being stopped on a variance. Forpurposes of this section, service is complete at the time of posting or of personal service, or if mailed, three days after the date of mailing. When the last day of the period so computed is a Saturday, Sunday or City holiday, the period runs until 5p.m. on the next business day.

3. A Stop Work Order is effective when posted, or if posting is not physically possible, when one of the persons identified in subsection 25.08.720.A.2 is served.

B. Review by the Administrator.

1. Any person aggrieved by a Stop Work Order may obtain a review of the Stop Work Order by delivering to the Department a request in writing within two business days of the date of service of the Stop Work Order.

2. The review shall occur within two business days after receipt by the Administrator of the request for review unless the requestor requests or agrees to a longer time.

3. Any person aggrieved by or interested in the Stop Work Order may submit additional information to the Administrator for consideration as part of the review at any time prior to the review.

4. The review will be made by a representative of the Administrator who will review all additional information received and may also request a site visit. After the review, the Administrator may:

a. Sustain the Stop Work Order;

b. Withdraw the Stop Work Order;

c. Modify the Stop Work Order; or

d. Continue the review to a date certain for receipt of additional information.

C. Order of the Administrator. The Administrator shall issue an Order of the Administrator containing the decision within two business days after the review and shall cause the same to be sent by first class mail to the person or persons requestingthe review, any person on whom the stop work order was served, and any other person who requested a copy before issuance of the Order. The City and all parties shall be bound by the Order.

Section 49. Section 25.08.730 of the Seattle Municipal Code, which Section was last amended by Ordinance 110047, is amended as follows:

25.08.730 Notice and order.

A. Unless provided otherwise by this chapter , whenever the Administrator has reason to believe that amaximumpermissible sound levelof Subchapter III is being exceeded, that a public nuisance noise is beingemitted, or that the terms of a variance have not been met , he may initiate an administrative proceeding as provided by Subchapter IX, and serve a written notice and order directed to the owner or operator of the source, or to the holder of the variance. One (1) copy shall alsobe posted on the property or source, if reasonably possible, and another copy shall be mailed to each complainant (if any) about the noise; additional copies may be mailed by the Administrator to such other interested or affected persons as theAdministrator deems appropriate.

B. The notice shall contain a brief and concise description of the conditions alleged to be in violation or to be a public nuisance noise, the provision(s) of this Chapter alleged to have beenviolated, the sound level readings, if taken, including the time and place of their recording . C. The order shall contain a statement of the corrective action required and shall specify a reasonable time within which the action must be accomplished.

Section 50. Section 25.08.740 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.740 Method of service . Service of the notice and order shall be made upon the persons named in the notice and order, either personally or by mailing a copy of the notice and order by certifiedmail, postage prepaid, return receipt requested , to each person at his last known address. If the whereabouts of thepersons is unknown and cannot be ascertained by the Administrator in the exercise of reasonable diligence, and theAdministrator shall make affidavit to that effect, then the service of the notice and order upon the persons may be made by publishing them once each week for two (2) consecutive weeks in the City official newspaper. The failure of any such person to receive the notice and ordershall not affect the validity of any proceedings taken under this chapter. Service by certified mail in the manner provided in this section shall be effective on the date of mailing. Section 51. Section 25.08.760 of the Seattle Municipal Code, which Section was adopted by Ordinance 106360, is amended as follows:

25.08.760 Administrative conferences.

An informal administrative conference may be conducted at any time by the Administrator for the purpose of bringing out all the facts and circ*mstances relating to an alleged violation, promoting communication between concernedparties, and providing a forum for efficient resolution of a violation. The Administrator may call a conference in response to a request from any person aggrieved by an order of the Administrator or the Administrator may call a conference on his ownmotion. Attendance at the conference shall be determined by the Administrator and need not be limited to those named in a notice and order. As a result of information developed at the conference, the Administrator may affirm, modify or revoke his order.The holding of an administrative conference shall not be a prerequisite to use of any other enforcement provisions contained in this chapter.Section 52. A new Section 25.08.765 to the Seattle Municipal Code, is adopted to read as follows:

25.08.765 Order of the Administrator

A. Where review by the Administrator has been conducted pursuant to Section 25.08.760, the Administrator shall issue an order of the Administrator containing the decision within fifteen days of the date the review is completed and shall cause the sameto be mailed by regular first class mail to the person or persons named in the notice of violation and mailed to the complainant, if any.

B. Unless a request for review before the Administrator is made pursuant to Section 25.08.760, the notice of violation shall become the order of the Administrator.

C. Civil actions to enforce orders of the Administrator are brought in Seattle Municipal Court and are not subject to judicial review pursuant to chapter 36.70C RCW.

Section 53. Section 25.08.800 of the Seattle Municipal Code, which Section was last amended by Ordinance 114656, is amended as follows:

25.08.800 Punishment.

A. Conduct made unlawful by Subchapter IV, Section 25.08.515 and Section 25.08.520 of this chapter shall constitute a violation subject to the provisions of Chapters 12A.02 and 12A.04 of this Code (Seattle Criminal Code) and any personconvicted of a violation of Subchapter IV or Section 25.08.520 shall be punished by a civil fine or forfeiture not to exceed Five Hundred Dollars ($500); conduct made unlawful by Section 25.08.515 shall be punished by a civil fine or forfeiture not toexceed Fifty Dollars ($50).

B. Conduct made unlawful by Section 25.08.500 of this chapter shall constitute a crime subject to the provisions of Chapters 12A.02 and 12A.04 of this Code(Seattle Criminal Code), and any person convicted thereof shall be punished by a finenot to exceed Five Hundred Dollars ($500), or by imprisonment in the City Jail for a term not to exceed six (6) months, or by both such fine and imprisonment.

1. Section 54. Section 25.08.820 of the Seattle Municipal Code, which Section was last amended by Ordinance 121192, is amended as follows:

25.08.820 Penalties cumulative.

The penalties imposed by Sections 25.08.800, 25.08.805 and 25.08.810 shall be in addition to any other sanction or remedial injunctiveprocedure which may be available at law or equity.

Section 55. Section 25.08.960 of the Seattle Municipal Code, adopted by Ordinance 122614, is amended as follows:

25.08.960 Citation Penalties.A person found to have violated Section25.08.501 is subject to a penalty according to thefollowing schedule.

TX: Section 56. The enforcement provisions contained in this ordinance apply to all enforcement actions commenced on or after the effective date of this ordinance, regardless of when the violation occurred. To this extent,this ordinance applies retroactively, but in all other respects it applies prospectively.

Section 57. Sections 25.08.130, 25.08.240, 25.08.535, 25.08.620, 25.08.750, 25.08.770, 25.08.780, 25.08.790, and 25.08.810 of the Seattle Municipal Code are hereby repealed.

Section 58. The provisions of this ordinance are declared to be separate and severable. The invalidity of any particular provision shall not affect the validity of any other provision.

Section 59. This ordinance shall take effect and be in force on whichever is the later of: (a) the effective date of approval of the amendments in this ordinance by the Washington State Department of Ecology, which date is no later than ninety daysafter submittal to the Department of Ecology; or (b)(i) thirty (30) days from and after approval by the Mayor or, (ii) if not approved and returned by the Mayor within (10) days after presentation, then as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of _________, 2009, and signed by me in open session in authentication of its passage this _____ day of __________, 2009.

_________________________________

President __________of the City Council

Approved by me this ____ day of _________, 2009.

_________________________________

Gregory J. Nickels, Mayor

Filed by me this ____ day of _________, 2009.

____________________________________

City Clerk

(Seal)

Gordon Clowers/gc/Bob Morgan/bm/Rebecca Herzfeld

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