The Council Chambers is accessible to persons with disabilities. Equipment is available for the hearing impaired. Persons requesting special

accommodations or language interpreters should contact the City Clerk’s Office, 589-2489, as soon as possible in advance of the Council meeting so

that an attempt to provide the special accommodations can be made.

http://www.cityoflakewood.us City Hall will be closed 15 minutes after adjournment of the meeting.

LAKEWOOD CITY COUNCIL STUDY SESSION AGENDA Monday, February 13, 2017 7:00 P.M. City of Lakewood City Council Chambers 6000 Main Street SW Lakewood, WA 98499

________________________________________________________________ Page No.

CALL TO ORDER ITEMS FOR DISCUSSION:

( 3) 1. Information Technology Plan update. – (Memorandum)

( 9) 2. Review of flood hazard overlay and habitat protection for rivers and streams

code amendments. – (Memorandum) (36) 3. Review of Title 18A land use and development code update. –

(Memorandum) (45) 4. Review of the 2017 Comprehensive Plan amendment process. –

(Memorandum) (47) 5. Review of pan handling code amendments. – (Memorandum) REPORTS BY THE CITY MANAGER

ITEMS TENTATIVELY SCHEDULED FOR THE FEBRUARY 21, 2017 REGULAR CITY COUNCIL MEETING: 1. Business showcase. – CR Coachworks, Doug Graf and Julie Graf, Owners 2. Proclamation declaring March 13-17, 2017 as Classified School Employees

Week. – Ms. Irene Oda, President, Educational Support Personnel of Clover Park

3. Tacoma Public Utilities update. – Mr. Bob Mack, Deputy Director for Public

Affairs, Tacoma Public Utilities

The Council Chambers is accessible to persons with disabilities. Equipment is available for the hearing impaired. Persons requesting special

accommodations or language interpreters should contact the City Clerk’s Office, 589-2489, as soon as possible in advance of the Council meeting so

that an attempt to provide the special accommodations can be made.

http://www.cityoflakewood.us City Hall will be closed 15 minutes after adjournment of the meeting.

Lakewood City Council Agenda -2- February 13, 2017 Page No.

4. Awarding a bid for constructing sidewalks on Gravelly Lake Drive from 100th

Street to Bridgeport Way SW. – (Motion – Consent Agenda) 5. Awarding a bid for street improvements on 108th Street SW from Main Street

SW to Bridgeport Way SW. – (Motion – Consent Agenda) 6. Authorizing the execution of Amendment No. 20 to the interlocal agreement

with Pierce County relative to surface water management billings. – (Motion – Consent Agenda)

7. Adopting amendments to the Lakewood Municipal Code relative to pan

handling. – (Ordinance – Regular Agenda) 8. Amending Chapter 18A.40 and Chapter 14A.154 of the Lakewood Municipal

Code relative to flood hazard overlay and habitat protection for rivers and streams. – (Ordinance – Regular Agenda)

9. Adopting the Six Year 2017-2022 Transportation Improvement Program

amendments. – (Resolution – Regular Agenda) COUNCIL COMMENTS

ADJOURNMENT

To: Mayor and City Councilmembers

From: Kenneth White, Information Technology Manager Through: John J. Caulfield, City Manager Tho Kraus, Assistant City Manager/Administrative Services

Date: February 13, 2017

Subject: Information Technology Plan Update Background Since the City Council approved the initial 6-Year Information Technology Strategic Plan in 2014, $1.9M has been invested in technology infrastructure through 2016. Subsequently, the City Council approved technology investments totaling $1.2M as part of the adopted 2017/2018 budget. Over the following four years, 2019 through 2022, the City’s information technology needs based on the current plan totals $1.4M, of which $600K is projected to be funded and the remaining $800K unfunded. The 6-Year Information Technology Strategic Plan is an evolving document and will be updated in June 2017.

6-Year Strategic Plan

Funding Sources 2017 2018 2019 2020 2021 2022 TotalFunded - General Government 812,750$ 404,120$ 157,870$ 179,870$ 127,870$ 133,870$ 1,816,350$ Unfunded*:

Computer Replacement - - 138,750 138,750 138,750 138,750 555,000 Permit System - - 150,000 30,000 30,000 30,000 240,000

Total Funding Sources 812,750$ 404,120$ 446,620$ 348,620$ 296,620$ 302,620$ 2,611,350$

Ref# Project Name 2017 2018 2019 2020 2021 2022 Total1 Primary & Secondary Data Center - Total: 238,000 67,300 52,300 74,300 22,300 28,300 482,500$

a) Network - Switches & Routers 160,000 - - 40,000 - - 200,000$ b) Server/Hardware Upgrades 30,000 - 30,000 6,000 - 6,000 72,000$ c) Disaster Recovery Co-Location Implementation (Police Station) 48,000 17,300 17,300 23,300 17,300 17,300 140,500$ d) Firewall & Intrusion Detection Systems - 50,000 5,000 5,000 5,000 5,000 70,000$

2 City Council Chambers Technology 126,000 15,000 15,000 15,000 15,000 15,000 201,000$ 3 Computer Replacement 138,750 138,750 138,750 138,750 138,750 138,750 832,500$ 4 Document Management, Workflow & Paperless System - Total: 250,000 164,570 72,070 72,070 72,070 72,070 702,850$

a) Municipal Court Workflow System 50,000 9,700 9,700 9,700 9,700 9,700 98,500$ b) Legal Workflow System 50,000 4,870 4,870 4,870 4,870 4,870 74,350$ c) Document Management System - Electronic Records 150,000 150,000 57,500 57,500 57,500 57,500 530,000$

5 Web Site Enhancement 15,000 - - - - - 15,000$ 6 Redesign the City's Permit Process/Eden Web Extensions - - 150,000 30,000 30,000 30,000 240,000$ 7 Vulnerability & Penetration Testing 35,000 18,500 18,500 18,500 18,500 18,500 127,500$ 8 Wireless Access Points (Wi-Fi) 10,000 - - - - - 10,000$

Total Project Costs 812,750$ 404,120$ 446,620$ 348,620$ 296,620$ 302,620$ 2,611,350$

Project Costs 2017 2018 2019 2020 2021 2022 Total1-Time/ Capital 794,750 338,750 168,750 138,750 138,750 138,750 1,718,500$ Ongoing - M&O 18,000 65,370 277,870 209,870 157,870 163,870 892,850$

Total Project Costs 812,750$ 404,120$ 446,620$ 348,620$ 296,620$ 302,620$ 2,611,350$ * Computer Replacement and Permit System while important are considered unfunded because all other projects listed in the 6-year plan have been "obligated" for m&o and required subscription upgrades.

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Completed Projects – 2015

• Phone System Replacement – Budgeted $240,000 Actual $193,218 In March of 2015 the Information Technology division completed the phone system replacement project. This entailed replacement of the NEC phone system with a new Shoretel system providing the city with a robust and reliable communication system for many years to come. This system came in on time and under budget.

• Blue Beam Software – Budgeted $3,500 Actual $2,431 Provides a robust best-in-class PDF creation, markup, editing and collaboration solution for both Community and Economic Development and Public Works departments while also allowing third party collaboration with contractors, engineers and inspectors. This project came in on time and on budget.

• Website Update and Redesign – Budgeted $10,000 Actual $,2520

Phase I redesign was completed in April of 2015. The new website was rolled out live May 2015. Phase II which included the Mylakewood311 system was completed and went live end of December, 2015.

• Video Arraignment – Budgeted $50,000 Actual $41,328

The Information Technology division working in partnership with the Municipal Court selected and implemented the Lifesize video conferencing system for video arraignment. This system provides a superb, yet simple video collaboration solution that supports all of the needs of the Municipal Court both on-the-fly and through scheduled hearings.

• Enterprise Data Storage Systems - $0.00 Actual $95,687

Utilizing savings resulting from numerous projects the Information Technology division replaced the aging storage systems which were in place providing additional capacity, ability to scale up storage and optimization of the new cloud infrastructure solution. The previous systems are now scheduled to be deployed at the City’s secondary data center located at the Police Station which will reduce future storage expenditures significantly at the co-location.

• Cloud Infrastructure – Virtual Servers – Budgeted $5,400 Actual $5,313

The cloud infrastructure solution by VMWare brought streamlined cloud solutions and operations providing an enterprise-class virtual cloud system with powerful server virtualization, safe automated management and enhanced growth capabilities for the City. This project also eliminated multiple existing solutions which reduced both initial startup costs and ongoing expenses in the amount of $4108.19 per year within the data center. The virtual solution eliminated the need continue to replace physical servers reducing future replacement costs.

• Cloud Infrastructure – Virtual Desktop – Budgeted $17,000 Actual $16,851 The cloud infrastructure virtual desktop project was completed at the end of the third quarter in 2015. This solution provided real time remote access for inspectors, police and administrative users throughout the City. The system has eliminated hours of work each day for Public Works & Community Development inspectors allowing them to enter data in real time in the field versus having to come back to City Hall numerous times a day. Currently there are 18 assigned virtual desktops in use within the organization. We expect the number of approved users to continue to grow as new systems come on board and the need for remote access expands.

• Remote Support Capability – Budgeted $0.00 Actual $2,400

Provides IT Management and helpdesk support through advanced remote control solutions which allow the Information Technology division to manipulate, control and provide remote support. These remote capabilities provide real time response while also eliminating additional travel time by allowing the HelpDesk team to connect to systems remotely.

• Multi-Function Copiers – Budgeted $105,054 Actual $105,054 The copier & printer replacement project was completed in December, 2015 which consisted of removal & replacement of the existing Ricoh copiers with new Sharp equipment, replacement of select printers and implementation of an account management solution to manage all print devices throughout the City. The new system provides a robust enterprise solution tying directly into the City’s future document

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management solution. In addition to copy, print & scanning features the system supports authentication using existing City badges to track total print jobs and costs associated providing feature rich reports on expenditures and overall costs. Color printing, two sided single pass scanning capability, wireless mobile device printing and integration with third party solutions and apps are just some of the enhanced features available. Information Technology division continues to monitor and adjust the system as necessary to bring additional features and enhanced reporting.

• MyLakewood311 – Budgeted $10,000 Actual $11,377

Information Technology division began the implementation of the new 311 project in October, 2015 with an estimated soft rollout date of Dec 15, 2015 with a go live date of Dec 31, 2015. During the implementation the Information Technology division worked with all affected departments to ensure a successful launch of the 311 Mobile Application for the City of Lakewood. The new MyLakewood311 application provides a central source for the collection, resolution and reporting of tickets providing departments the ability to tracking requests coming in from the public. The system also provides a best-in-class mobile application which can be installed on mobile devices to provide a rich full featured solution for end users. The MyLakewood311 system went live, December 31st, 2015 with a successful launch.

• Redesign Of The City’s Permit Process/Eden Web Extensions – Budgeted $4,000 Actual $6,699 The online permitting solution continues to grow and expand providing additional resources for businesses within the City. Currently residents and businesses are able to use the online system to perform inquiries on existing permits, estimate fees, schedule inspections, parcel inquiries, apply for permits and recently the ability to perform business license renewals has been added. The Community and Economic Development department continue to add new features and options throughout the year.

Completed Projects – 2016

• Facilities Service Desk – Budget $0 / Actual $0 Since its initial inception the facilities service desk solution has had over 550 requests submitted. This solution builds off the successful launch of the city’s Information Technology helpdesk system and continues to provide a no-cost automated solution for facilities service desk requests.

• Messaging (Email) System Refresh – Budget $35,000 Actual $21,232 The city implemented Exchange 2013 in early 2016 which continues to provide email services on both desktop and mobile devices.

• Cell Phone Archival Of Text Messages – Budget $15,719 Actual $10,500 (Yearly)

Project was completed in the latter part of 2016. All text messages (SMS) which are sent or received on a city issued cell phone are captured and retained according to the Washington state retention schedule.

• Enterprise Network Monitoring Tools – Budget 10,000 Actual $9,875

The Information Technology division purchased an enterprise monitoring solution during the 4th quarter of 2016 as a key application for network and application monitoring. This solution will assist information technology team members in both proactive and systems monitoring roles by providing a single flexible tool that monitors applications, servers, networked devices, virtualization and traffic across the environment.

• SSMCP Website – Budget $2,600 / Actual $2,600 In 2016, Information Technology team members partnered with Pierce College and Robert Half to create and develop the South Sound Military and Communities Partnership programs official MYJBLM.COM website. This site promotes public involvement and improves information sharing about past, present and future events of interest to communities with a connection to JBLM. The site is maintained and updated by the SSMCP division. Funding provided by SSMCP.

• Aerial Photography Updates – Budget $0 (Utilized Completed Project Savings) / Actual $14,672 Utilizing savings from other projects and working in partnership with King County’s GIS division and other municipalities the City of Lakewood was able to obtain updated high quality detailed aerial photography images to update its GIS database. Updates had previous occurred in 2008. Funding provided utilizing savings from other projects.

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• DigitalOnQ – Digital Video & Evidence Solution – Budget $53,018 (Seizure Funds) / Actual $53,018

Mid 2016, a new dedicated video & image evidence management solution was purchased utilizing seizure funds which streamlines and enhances Lakewood’s ability to store, view and manage digital evidence. This solution provides our existing FileONQ uses with an integrated, powerful and secure way to manage and view their digital evidence. Lakewood has been working directly with developers of the system to ensure it meets the needs of the department including remote access, ability to share evidence with county prosecutors, legal entities, etc. in a secure and safe manner. The system is in full production although it continues to be developed throughout 2017 as needs arise and feature requests are added to improve efficiencies.

2016 Projects in Progress – To Be Carried Over to 2017

• Task Management System – Budget $75,000 / 2016 Actual $48,000 Estimated Completion Date: 2nd Quarter 2017 With the successful integration of the MyLakewood311 application, the Information Technology Division has been working with numerous departments reviewing several solutions which tie directly to the MyLakewood311 application. Key benefits of the solution include the ability to track, rate and manage assets, monitor service requests from inception to completion, schedule preventative maintenance and extend life of assets using the materials management tools provided and more. Areas such as stormwater systems, facilities, streets and traffic control devices and fleet equipment are included. The proposed system will provide a robust solution manage workflow and daily activities and ties directly into the MyLakewood311 solution. This project has been ongoing and is scheduled to be complete end of 2nd quarter 2017.

• Video Surveillance & Security Cameras – Budget $50,000 / 2016 Actual $0 Estimated Completion Date: 2nd Quarter 2017 Information Technology Division team members are currently working with multiple divisions to replace, enhance and upgrade current video surveillance systems located throughout the City. The initial focus was on the replacement of the video surveillance system used by police for undercover investigations which has been completed. Initially the project was intended to cover only City Hall and the Police station. It has since expanded to cover city hall, police station, O&M facility, skate park & the Fort Steilacoom maintenance shop. Along with city owned facilities, the project will bring numerous cameras to Ft. Steilacoom and the skate park to allow streaming of video for the public. Expected completion is the latter part of the 2nd quarter of 2017.

• Rental Housing Program - Budget $50,000 / 2016 Actual $$53,492 Estimated Completion Date: 3rd Quarter 2017 Partnering with the Community and Economic Development Department, Information Technology Division team members have been working with Robert Half technology to develop and create a rental housing inspection. This system will be a key system in supporting the rental housing program. Phase I will consist of the application, reporting and lottery system while Phase II will consist of mobile technology integration and additional enhancements.

• Fiber Optic Connection – Budget $53,130 / 2016 Actual $28,340 Estimated Completion 2nd Quarter 2017 Phase I - Working in partnership with public works, the Information Technology division was able to complete the installation of fiber optic cables at Ft. Steilacoom park which has since provided a means to carry voice and data services to the park along with providing wireless access to Lakewood residents and guests visiting the park. Phase II – beginning in the 1st quarter of 2017 Information Technology division will be installing fiber at various locations throughout the city starting with the skate park. This will provide additional resources for both public safety and viewing of park activity along with city guest Wi-Fi services.

• Municipal Code Online Hosting Solution (2016/2017) – Budget $30,000 / 2016 Actual $6,184 Estimated Completion 4th Quarter 2017 Partnering with the city numerous city divisions an online robust municipal code system was put into production in late 2016. The new hosted solution utilizes the latest technology to provide advanced online

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codes and high quality print publications along with electronic versions of resolutions, Council minutes and ordinances. Information Technology division team members are currently working with our partners to perform codification of the City of Lakewood’s municipal code. Remaining funds were carried over from 2016 which will be used towards the codification process.

2017 Scheduled Projects

• Network Switches & Routers - Budget $160,000 Estimated Completion Date: 2nd Quarter 2018 The Information Technology division will begin replacing all legacy network infrastructure to include switches, routers and critical networking components during the 1st quarter of 2017. This project is expected to take several months to complete as it involves a complete overhaul of the city’s existing legacy systems, documentation to include disaster recovery information and business continuity planning.

• Server Upgrade & Refresh Budget $30,000 Estimated Completion Date: 3rd Quarter 2017 In preparation for the City’s primary and secondary data center migration project the Information Technology division will begin replacing existing legacy hardware with new Dell server systems. These systems will provide additional capacity to expand and build upon the city’s virtual network infrastructure. Completion of the project will provide dual network operation centers (NOC) with the primary being located at the police station and the secondary located at city hall.

• Disaster Recovery/ Co-Location - Budget $28,000 Estimated Completion Date:4th Quarter 2017 In an effort to ensure business continuity during a disaster or emergency, the Information Technology division team members will be configuration both primary and secondary data centers within the city. The primary data center will be housed at the Police station while the secondary will be located at city hall. This project will provide redundant systems in the event of an outage to ensure connectivity to central resources and South Sound 911 are maintained.

• Disaster Recovery/ Business Continuity Plan - Budget $10,000 Estimated Completion Date: 4th Quarter 2018 Creation of comprehensive documentation, policies & procedures in regards to disaster recovery processes within the technology division. Project will be carried over from 2016 to 2017 to allow for the configuration, setup and operation of the network operation centers.

• Disaster Recovery/Redundant Voice and Data Circuits – Budget $10,000/Annually Estimated Completion 4th Quarter 2017 To ensure complete redundancy of the Cities voice & data networks the Information Technology division will be installing additional circuits to be located at the police station which is the City’s designated Emergency Operations Center and the backup co-location for data services. Currently, in the event of a disaster at City Hall network and voice Services would not be available due to the loss of connectivity between the two locations and external resources. Redundant voice & data circuits will ensure connectivity to all systems during an outage at either location.

• Council Chambers Technology Upgrade - Budget $126,000

Estimated Completion Date: 3rd Quarter 2017 The City of Lakewood will be replacing and upgrade existing technology within the council chambers. This legacy equipment has been in use since the inception of city hall. This is all in an effort to reduce costs, improve efficiency and promote advancement in technology including the ability to stream meetings, enhanced viewing options and multi-purpose use to include potential cameras and audio systems outside of city hall such as Ft. Steilacoom park.

• Computer Replacement - Budget $138,750 in each year 2017/2018 Estimated Completion Date: 4th Quarter 2021 Over a 4-year period the Information Technology division will perform a workstation refresh program which provides replacement workstations, laptops or mobile tablets for units which have reached their end of life or have been designated as faulty or damaged systems. The systems targeted are critical to the

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success of the city to ensure productivity and tools necessary for Information Technology division team members to perform their duties and functions within their respective departments. Over the next 4 years the technology division will utilize funding set aside for yearly refresh cycles.

• Municipal Court Workflow System - Budget $50,000 Estimated Completion Date: 2nd Quarter 2017 Working in partnership with the Municipal Court, the Information Technology division will be implementing the new electronic court electronic workflow, calendaring and document management solution which will provide a fully electronic solution for the court. Expected go-live date will be 2nd quarter of 2017.

• Legal Workflow System - Budget $50,000 Estimated Completion 3rd Quarter 2017 Provides the Legal department the most powerful, adaptable case and matter management solution on the market place. Provides tools and resources to the Legal department which increases efficiencies while keeping the department lean.

• Document Management System – Electronic Records - Budget $300,000 ($150,000/year in 2017/2018) Estimated Completion Date: 4th Quarter 2019 Beginning in the 1st quarter of 2017 the Information Technology division will begin researching solutions for a city-wide enterprise document management solution. This system is a collection of technologies that work together to provide a comprehensive solution for managing the creation, capture, indexing, storage, retrieval, and disposition of records and information assets within the city. Total allocated funds are $300,00 over a two-year period.

• Website Enhancements & Upgrades – Budget $15,000 Estimated Completion Date 4th Quarter 2017 In continuation of the City’s website redesign project, team members will be adding enhancements to the website to continue to modernize the system, provide additional enhancements to include video, enhanced customer service options and to provide a solution which not only looks better, but one that works better for both visitors and search engines.

• Vulnerability & Penetration Testing – Budget $35,000 Estimated Completion Date 4th Quarter 2017 Provide a comprehensive testing of internal and external systems to provide an analysis of threats facing city applications, enabling the city to better protect its systems and data from malicious attacks. Also required to meet CJIS (Criminal Justice Information Systems) requirements.

• Wireless Access Points (Wi-Fi) – Budget $15,000

Estimated Completion Date: 3rd Quarter 2017 Phase I - The Fort Steilacoom park WiFi project was completed in 2016. The pilot test occurred during SummerFEST with final hardware purchase completed and installed during the 4th quarter of 2016. Phase II – Information Technology division team members are now working to bring additional WiFi access points to various locations throughout the city along with the skate park. Savings obtained during the Ft. Steilacoom fiber project will be used to add additional wireless access points where needed including dedicated hot spots throughout the city. Expansion of the city’s Wi-Fi systems will also provide additional capacity for public enabled guest services which currently reside at City Hall and Ft. Steilacoom Park.

Next Steps The Information Technology plan continues to be an evolving document as needs within the City change and will be updated mid-year 2017. An update to the current six-year Information Technology Strategic Plan is scheduled to be presented to the City Council in June 2017.

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To: Mayor and City Councilmembers From: Frank A. Fiori, Current Planning Manager Through: John J. Caulfield, City Manager Date: January 24, 2017 Subject: Flood Hazard Overlay Zone and Critical Areas Ordinance

Amendments BACKGROUND: As a participating jurisdiction in the National Flood Insurance Program (NFIP), the City of Lakewood is required to maintain a floodplain management program and associated ordinances that meet the requirements of the NFIP as established by the Federal Emergency Management Agency (FEMA). In 2014 FEMA completed a new preliminary Flood Insurance Study (FIS) and created new Flood Insurance Rate Maps (FIRM) for Pierce County based on the data in the new FIS. In addition, the National Marine Fisheries Service (NMFS) filed legal action against FEMA over the implementation of the NFIP in the Puget Sound Basin. The NMFS prevailed in the action and as a result a Biological Opinion (BiOp), of September 22, 2008 was prepared that provided guidance to FEMA regarding the implementation of the NFIP. In order to continue to be eligible to participate in the NFIP local jurisdictions within the Puget Sound Basin must meet the procedural and substantive requirements of the BiOp as well as the requirements of the NFIP. In 2015 City staff prepared amendments to both LMC Title 18A and Tile 14A believed necessary to meet the requirements of the BiOp as well as the requirements of the NFIP. The proposed amendments were submitted to FEMA and Ecology for review and comment. All of the proposed amendments met with the approval of Ecology and FEMA with the exception that the City and FEMA were continuing to work out the regulation of flood hazard areas lying within the buffer areas for certain streams as established by the BiOp as opposed to the buffers as established by the City’s Shoreline Master Progam (SMP). The City adopted the amendments to Title 18A and Title 14A via Ordinance 630 in December of 2015. The preliminary FIS and FIRM have now been made final and a Letter of Final Determination (LFD) was issued by FEMA on September 7, 2016. The new FIS and FIRM will become effective march 7, 2017. As noted previously, in order to maintain eligibility in the NFIP the

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City’s floodplain regulations must be in compliance with NFIP, FEMA regulations and the BiOp of September 22, 2008. The proposed amendments to Title 18A and Title 14A were introduced to the Planning Commission, and the proposed amendments were reviewed and discussed at their January 18, 2017 meeting. A public hearing was also conducted by the Planning Commission on January 18, 2017. The proposed amendments have been sent to the Washington Department of Commerce for distribution in accordance with RCW 36.70A.106. The City requested, and received approval for, expedited review of the proposed amendments. PROPOSED AMENDMENTS/ UPDATES: Due to the fact that the final FIS and FIRM are now countywide maps and the name of the FIS has changed from the previous 1987 FIS, FEMA does not consider automatic adoption clauses such as those currently contained in 18A and 14A to be compliant, therefore staff is proposing amendments to sections of 18A and 14A that will satisfy the requirement of FEMA. City staff and FEMA have come to agreement in regard to the regulation of flood hazard areas lying within the buffer areas for certain streams as established by the September 22, 2008 BiOp as opposed to the buffers as established by the City’s Shoreline Master Progam (SMP). Therefore, staff is proposing an amendment to Title 14A that will satisfy the requirement of the BiOp. DISCUSSION: The proposed ordinance amendments will bring the City into compliance with NFIP and FEMA requirements, and the BiOp of September 22, 2008 for continued participation in the NFIP. DRAFT UPDATES: The proposed amendments to Title 18A and Title 14A were introduced to the Planning Commission, and the proposed amendments were reviewed and discussed at their January 18, 2017 meeting. A public hearing was also conducted by the Planning Commission on January 18, 2017. The Planning Commission voted to recommend approval of the proposed amendments and forward them to City Council for action. The proposed amendments to Title 18A and 14A were submitted to FEMA and Ecology for review and comment. All of the proposed amendments have met with the approval of Ecology and FEMA. The proposed amendments have been sent to the Washington Department of Commerce for distribution in accordance with RCW 36.70A.106. The City requested, and was granted, expedited review for the proposed amendments.

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PROPOSED AMENDMENTS:

18A.40.120- Applicability - Flood Hazard Overlay A. Establishment of Flood Zones. This section shall apply to the areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in a scientific engineering report entitled “The Flood Insurance Study for the Unincorporated Areas of Pierce County, WA, Vols. 1 and 2,” dated August 19, 1987, as amended with an accompanying Flood Insurance Rate Map (FIRM) and Flood Boundary Maps, and any revisions thereto, and all Protected Areas within the City are hereby adopted by reference and declared to be a part of this section. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for Pierce County, and Incorporated Areas“ dated March 7, 2017, and any revisions thereto, with an accompanying Flood Insurance Rate Map (FIRM), and any revisions thereto, are hereby adopted by reference and declared to be a part of this ordinance. The Flood Insurance Study and the FIRM are on file at the City of Lakewood, 6000 Main Street SW, Lakewood, WA. The Flood Insurance Study shall be kept on file by the City Engineer. The best available information for flood hazard area identification, as outlined in this section, shall be the basis for regulation until a new FIRM is issued which incorporates the data utilized in administration of this section. B. Noncompliance. No structure or land shall hereafter be developed, converted, altered, constructed, or located without full compliance with the terms of this section and other applicable regulations. Violations of the provisions of this section are subject to the penalties identified in this title. C. Abrogation and Greater Restrictions. This section is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this section and other code, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. D. Interpretation of FIRM Boundaries. The Community Development Director shall make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazards. In the interpretation and application of this section, all provisions shall be:

1. Considered to constitute minimum requirements. 2. Liberally construed in favor of the public trust. 3. Deemed neither to limit nor repeal any other powers granted under state statutes. A party contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretations as provided in this code.

E. Disclaimer of Liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on occasion. Flood heights may be increased by man-made or natural causes. This section does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the City of Lakewood, or any officer or employee thereof, or FEMA for any flood damages that result from reliance on this section or any administrative decision lawfully made hereunder.

(Ord. 630 § 13, 2015; Ord. 264 § 1 (part), 2001.)

14A.154.050- Habitat Protection for Rivers and Streams Regulated activities proposed along rivers and streams shall provide for habitat protection.

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A. Habitat Protection for Rivers and Streams Shall be Provided Through Buffers.

1. The buffer, consisting of undisturbed natural vegetation, shall be required along all streams, as classified by the DNR water typing classification system (WAC 222-16-030). The buffer shall extend landward from the ordinary high water mark of the water body.

a. Outside of the buffer removal of native vegetation shall not exceed 35 percent of the

surface area of the portion of the site in the Regulatory Floodplain. Native vegetation within the buffer portion of the property can be counted toward this requirement.

2. The buffer of a river or stream shall not extend landward beyond an existing substantial

improvement such as an improved road, dike, levee, or a permanent structure which reduces the impact proposed activities would have on the river or stream.

3. Buffer widths shall be as established by by the City of Lakewood Shoreline Master

Program (SMP) as contained in Chapter 4, Section C of the SMP. 4. If a proposed project does not meet the criteria established in LMC 18A.40.180.A. and B.

a habitat impact assessment shall be conducted in accordance with Section 14A.154.050.CB, and if necessary, a habitat mitigation plan shall be prepared and implemented in accordance with the provisions of this chapter.

B. Habitat Impact Assessment.

Unless allowed under Sec. 18A.40.180, a permit application to develop in the Regulatory Floodplain,Special Flood Hazard Area (SFHA),for that portion of any parcel located within the area between the boundary of a buffer as established in the SMP, Chapter 4, Table 2, and the boundary of any buffer as required by the National Marine Fisheries Services’ Puget Sound Biological Opinion of September 22, 2008, shall include an assessment of the impact of the project on water quality and aquatic and riparian habitat. The assessment shall be:

1. A biological evaluation or biological assessment that has received concurrence from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, pursuant to Section 7 of the Endangered Species Act; or

2. Documentation that the activity fits within a habitat conservation plan approved pursuant to Section 10 of the Endangered Species Act; or

3. Documentation that the activity fits within Section 4(d) of the Endangered Species Act; or

4. An assessment prepared in accordance with the most current Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA (Federal Emergency Management Agency) Region X. The assessment shall determine if the project would adversely affect:

a. The primary constituent elements identified when a species is listed as threatened or endangered,

b. Essential fish habitat designated by the National Marine Fisheries Service,

c. Fish and wildlife habitat conservation areas,

d. Vegetation communities and habitat structures,

e. Water quality,

f. Water quantity, including flood and low flow depths, volumes and velocities,

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g. The channel’s natural planform pattern and migration processes,

h. Spawning substrate, if applicable, and/or,

i. Floodplain refugia, if applicable.

C. Habitat Mitigation Plan

1. If the assessment conducted under Sec. 14A.154.050.CB concludes the proposed project is expected to have an adverse effect on water quality and/or aquatic or riparian habitat or habitat functions, the applicant shall provide a plan to mitigate those impacts, in accordance with the current Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA (Federal Emergency Management Agency) Region X.

a. If the proposed project is located outside of the protected area, the mitigation plan shall include such avoidance, minimization, restoration, or compensation measures as are appropriate for the situation.

b. If the proposed project is located within the protected area, the mitigation plan shall include such appropriate measures as are needed to ensure that there is no adverse effect due to the project. Minimization measures are not allowed in the protected area, unless they, in combination with other measures result in no adverse effect. No compensatory mitigation is allowed in the Protected Area.

2. The plan’s habitat mitigation activities shall be incorporated into the proposed project. The floodplain development permit shall be based on the redesigned project and its mitigation components.

3. A certificate of occupancy or final inspection approval for a project shall not be issued until all work identified in the biological evaluation, biological assessment, or mitigation plan has been completed or the applicant has provided the necessary assurances that unfinished portions of the project will be completed.

D. Compensatory Storage

New development shall not reduce the effective flood storage volume of the Regulatory Floodplain. A development proposal shall provide compensatory storage if grading or other activity displaces any effective flood storage volume. Compensatory storage shall:

1. Provide equivalent volume at equivalent elevations to that being displaced. For this purpose, “equivalent elevation” means having similar relationship to ordinary high water and to the best available 10-year, 50-year and 100-year water surface profiles;

2. Be hydraulically connected to the source of the flooding; and

3. Provide compensatory storage in the same construction season as when the displacement of flood storage volume occurs and before flood season begins.

4. The newly created storage area shall be graded and vegetated to allow fish access during flood events without creating fish stranding sites.

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(Ord. 630 § 4, 2015; Ord. 362 § 3 (part), 2004.)

14A.158.020 - Designation All Areas of Special Flood Hazard shall be as identified in the scientific and engineering report entitled "The Flood Insurance Study for Pierce County," dated August 19, 1987, or as amended, with accompanying Flood Insurance Rate Maps prepared by the Federal Emergency Management Agency (FEMA). A copy of which shall be maintained with the City Clerk. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for Pierce County, and Incorporated Areas“ dated March 7, 2017, and any revisions thereto, with an accompanying Flood Insurance Rate Map (FIRM), and any revisions thereto, are hereby adopted by reference and declared to be a part of this ordinance. The Flood Insurance Study and the FIRM are on file at the City of Lakewood, 6000 Main Street SW, Lakewood, WA. The Flood Insurance Study shall be kept on file by the City Engineer. (Ord. 630 § 5, 2015; Ord. 362 § 3 (part), 2004.) ATTACHMENTS: 1. Planning Commission Resolution 2. SEPA Checklist 3. Notice of Issuance of Determination of Non Significance to Agencies 4. Determination of Non Significance 5. Notice of Public Hearing 6. Request for Expedited Review to Commerce 7. Notice of Approval of Expedited Review from Commerce

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CITY OF LAKEWOOD PLANNING COMMISSION RESOLUTION NO. 2017-01

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF LAKEWOOD

RECOMMENDING APPROVAL OF VARIOUS AMENDMENTS TO THE CITY’S LAND USE DEVELOPMENT CODE, CHAPTER 18A, AND THE CRITICAL AREAS

AND NATURAL RESOURCE LANDS REGULATIONS, CHAPTER 14A, OF THE LAKEWOOD MUNICIPAL CODE

WHEREAS, the City of Lakewood incorporated on February 28, 1996; and WHEREAS, pursuant to Title 36.70A RCW, on July 10, 2000, the City adopted the City of Lakewood Comprehensive Plan (Plan) pursuant to the Growth Management Act (GMA); and on August 20, 2001, the City adopted a Land Use and Development Code (Chapter 18A of the Lakewood Municipal Code); and WHEREAS, on April 19, 2006, the City of Lakewood adopted Ordinance No. 362 which enacted Title 14A of the Lakewood Municipal Code, which are the City’s Critical Areas and Natural Resource Lands Regulations; and, WHEREAS, on December 29, 2016, the City of Lakewood Community Development Department released proposed amendments and updates to the City’s land use development code and critical areas and natural resource lands regulations and related provisions of the municipal code for public review and issued a Determination of Non-Significance (DNS) for this proposal on the same date; and, WHEREAS, the Lakewood Planning Commission held public hearings on the proposed amendments and updates to the City’s land use development code and critical areas and natural resource lands regulations on January 18, 2017, considered the public testimony received through the public hearing process, and deliberated on the proposed amendments and updates to the City’s land use development code and critical areas and natural resource lands regulations update; NOW, THEREFORE, BE IT RESOLVED that the Planning Commission for the City of Lakewood does hereby recommend to the Lakewood City Council that Lakewood Municipal Code Title 18A and Title 14A should be updated and revised to read as indicated in Exhibit A attached hereto. PASSED AND ADOPTED at a regular meeting of the Planning Commission on January 18, 2017 by the following vote:

AYES: BOARDMEMBERS:

NAYS: BOARDMEMBERS:

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ABSENT: BOARDMEMBERS:

_________________________________ DON DANIELS, CHAIR PLANNING COMMISSION

ATTEST: _________________________________ KAREN DEVEREAUX, SECRETARY

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EXHIBIT A

18A.40.120- Applicability - Flood Hazard Overlay A. Establishment of Flood Zones. This section shall apply to the areas of special flood hazard identified by the Federal Emergency Management Agency (FEMA) in a scientific engineering report entitled “The Flood Insurance Study for the Unincorporated Areas of Pierce County, WA, Vols. 1 and 2,” dated August 19, 1987, as amended with an accompanying Flood Insurance Rate Map (FIRM) and Flood Boundary Maps, and any revisions thereto, and all Protected Areas within the City are hereby adopted by reference and declared to be a part of this section. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for Pierce County, and Incorporated Areas“ dated March 7, 2017, and any revisions thereto, with an accompanying Flood Insurance Rate Map (FIRM), and any revisions thereto, are hereby adopted by reference and declared to be a part of this ordinance. The Flood Insurance Study and the FIRM are on file at the City of Lakewood, 6000 Main Street SW, Lakewood, WA. The Flood Insurance Study shall be kept on file by the City Engineer. The best available information for flood hazard area identification, as outlined in this section, shall be the basis for regulation until a new FIRM is issued which incorporates the data utilized in administration of this section. B. Noncompliance. No structure or land shall hereafter be developed, converted, altered, constructed, or located without full compliance with the terms of this section and other applicable regulations. Violations of the provisions of this section are subject to the penalties identified in this title. C. Abrogation and Greater Restrictions. This section is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this section and other code, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. D. Interpretation of FIRM Boundaries. The Community Development Director shall make interpretations where needed, as to the exact location of the boundaries of the areas of special flood hazards. In the interpretation and application of this section, all provisions shall be:

1. Considered to constitute minimum requirements. 2. Liberally construed in favor of the public trust. 3. Deemed neither to limit nor repeal any other powers granted under state statutes. A party contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretations as provided in this code.

E. Disclaimer of Liability. The degree of flood protection required by this section is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on occasion. Flood heights may be increased by man-made or natural causes. This section does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This section shall not create liability on the part of the City of Lakewood, or any officer or employee thereof, or FEMA for any flood damages that result from reliance on this section or any administrative decision lawfully made hereunder.

(Ord. 630 § 13, 2015; Ord. 264 § 1 (part), 2001.)

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14A.154.050- Habitat Protection for Rivers and Streams Regulated activities proposed along rivers and streams shall provide for habitat protection. A. Habitat Protection for Rivers and Streams Shall be Provided Through Buffers.

1. The buffer, consisting of undisturbed natural vegetation, shall be required along all streams, as classified by the DNR water typing classification system (WAC 222-16-030). The buffer shall extend landward from the ordinary high water mark of the water body.

a. Outside of the buffer removal of native vegetation shall not exceed 35 percent of the

surface area of the portion of the site in the Regulatory Floodplain. Native vegetation within the buffer portion of the property can be counted toward this requirement.

2. The buffer of a river or stream shall not extend landward beyond an existing substantial

improvement such as an improved road, dike, levee, or a permanent structure which reduces the impact proposed activities would have on the river or stream.

3. Buffer widths shall be as established by by the City of Lakewood Shoreline Master

Program (SMP) as contained in Chapter 4, Section C of the SMP. 4. If a proposed project does not meet the criteria established in LMC 18A.40.180.A. and B.

a habitat impact assessment shall be conducted in accordance with Section 14A.154.050.CB, and if necessary, a habitat mitigation plan shall be prepared and implemented in accordance with the provisions of this chapter.

B. Habitat Impact Assessment.

Unless allowed under Sec. 18A.40.180, a permit application to develop in the Regulatory Floodplain,Special Flood Hazard Area (SFHA) for that portion of any parcel located within the area between the boundary of a buffer as established in the SMP, Chapter 4, Table 2, and the boundary of any buffer as required by the National Marine Fisheries Services’ Puget Sound Biological Opinion of September 22, 2008, shall include an assessment of the impact of the project on water quality and aquatic and riparian habitat. The assessment shall be:

1. A biological evaluation or biological assessment that has received concurrence from the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, pursuant to Section 7 of the Endangered Species Act; or

2. Documentation that the activity fits within a habitat conservation plan approved pursuant to Section 10 of the Endangered Species Act; or

3. Documentation that the activity fits within Section 4(d) of the Endangered Species Act; or

4. An assessment prepared in accordance with the most current Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA (Federal Emergency Management Agency) Region X. The assessment shall determine if the project would adversely affect:

a. The primary constituent elements identified when a species is listed as threatened or endangered,

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5

b. Essential fish habitat designated by the National Marine Fisheries Service,

c. Fish and wildlife habitat conservation areas,

d. Vegetation communities and habitat structures,

e. Water quality,

f. Water quantity, including flood and low flow depths, volumes and velocities,

g. The channel’s natural planform pattern and migration processes,

h. Spawning substrate, if applicable, and/or,

i. Floodplain refugia, if applicable.

C. Habitat Mitigation Plan

1. If the assessment conducted under Sec. 14A.154.050.CB concludes the proposed project is expected to have an adverse effect on water quality and/or aquatic or riparian habitat or habitat functions, the applicant shall provide a plan to mitigate those impacts, in accordance with the current Regional Guidance for Floodplain Habitat Assessment and Mitigation, FEMA (Federal Emergency Management Agency) Region X.

a. If the proposed project is located outside of the protected area, the mitigation plan shall include such avoidance, minimization, restoration, or compensation measures as are appropriate for the situation.

b. If the proposed project is located within the protected area, the mitigation plan shall include such appropriate measures as are needed to ensure that there is no adverse effect due to the project. Minimization measures are not allowed in the protected area, unless they, in combination with other measures result in no adverse effect. No compensatory mitigation is allowed in the Protected Area.

2. The plan’s habitat mitigation activities shall be incorporated into the proposed project. The floodplain development permit shall be based on the redesigned project and its mitigation components.

3. A certificate of occupancy or final inspection approval for a project shall not be issued until all work identified in the biological evaluation, biological assessment, or mitigation plan has been completed or the applicant has provided the necessary assurances that unfinished portions of the project will be completed.

D. Compensatory Storage

New development shall not reduce the effective flood storage volume of the Regulatory Floodplain. A development proposal shall provide compensatory storage if grading or other activity displaces any effective flood storage volume. Compensatory storage shall:

1. Provide equivalent volume at equivalent elevations to that being displaced. For this purpose, “equivalent elevation” means having similar relationship to ordinary high water and to the best available 10-year, 50-year and 100-year water surface profiles;

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6

2. Be hydraulically connected to the source of the flooding; and

3. Provide compensatory storage in the same construction season as when the displacement of flood storage volume occurs and before flood season begins.

4. The newly created storage area shall be graded and vegetated to allow fish access during flood events without creating fish stranding sites.

(Ord. 630 § 4, 2015; Ord. 362 § 3 (part), 2004.)

14A.158.020 - Designation All Areas of Special Flood Hazard shall be as identified in the scientific and engineering report entitled "The Flood Insurance Study for Pierce County," dated August 19, 1987, or as amended, with accompanying Flood Insurance Rate Maps prepared by the Federal Emergency Management Agency (FEMA). A copy of which shall be maintained with the City Clerk. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for Pierce County, and Incorporated Areas“ dated March 7, 2017, and any revisions thereto, with an accompanying Flood Insurance Rate Map (FIRM), and any revisions thereto, are hereby adopted by reference and declared to be a part of this ordinance. The Flood Insurance Study and the FIRM are on file at the City of Lakewood, 6000 Main Street SW, Lakewood, WA. The Flood Insurance Study shall be kept on file by the City Engineer. (Ord. 630 § 5, 2015; Ord. 362 § 3 (part), 2004.)

020

CITY OF LAKEWOOD DEPARTMENT OF COMMUNITY DEVELOPMENT

ENVIRONMENTAL CHECKLIST APPLICATION FORM

PROJECT: 2017 AMENDMENTS TO THE CITY OF LAKEWOOD LAND USE AND DEVELOPMENT CODE

AND ENVIRONMENTAL PROTECTION CODE REGARDING FLOODPLAIN MANAGEMENT

A. BACKGROUND

1. Name of Proposed Project: 2017 Floodplain Management Regulations

2. Proponent:

3. Contact Person:

4. Checklist Date:

5. Lead Agency:

6. Proposed Timing:

City of Lakewood

Frank A. Fiori, Planning Manager 6000 Main Street SW Lakewood, WA 98499

December 16, 2016

City of Lakewood

Adoption expected in Spring 2017

7. Future Actions: The proposed revisions will bring City codes into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (BSA) Biological Opinion (Bi Op) for the Puget Sound Basin of September 22, 2008.

8. Environmental Information: National Marine Fisheries Service (NMFS) Biological Opinion (Bi Op) of September 22, 2008 on the NFIP.

9. Other pending government approvals: None at this time.

10. Government approvals for this project: Adoption of an ordinance by the Lakewood City Council.

11. Project Description: This proposal involves zoning code amendments to Title 18A of the City of Lakewood Municipal Code in regard to floodplain regulations and to Title 14A of the City of Lakewood Municipal Code in regard to critical areas and natural resource lands regulations. The proposed revisions will bring City code into compliance with the National Flood Insurance Program (NFIP) and Endangered

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Species Act (BSA) Biological Opinion (Bi Op) for the Puget Sound Basin of September 22, 2008.

12. Project Location: The proposed amendments will apply to lands within the Lakewood city limits that are located within the regulatory floodplain or critical areas and natural resource areas as defined.

C. SIGNATURE

The above answers are true and complete to the best of my knowledge. understand that the lead agency is relying on them to make its decision.

Signature: ~ ~ Name of signee: Frank A. Fiori

Position and Agency/Organization: Planning Manager, City of Lakewood

Date Submitted: December 16, 2016

D. SUPPLEMENTAL SHEET FOR NONPROJECT ACTIONS

Because these questions are very general, it may be helpful to read them in conjunction with the list of the elements of the environment.

When answering these questions, be aware of the extent the proposal, or the types of activities likely to result from the proposal, would affect the item at a greater intensity or at a faster rate than if the proposal were not implemented. Respond briefly and in general terms.

1. How would the proposal be likely to increase discharge to water; emission to air; production, storage, or release of toxic or hazardous substances; or production of noise?

The proposed code amendments are intended to bring City code into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (ESA) Biological Opinion (BiOp)for the Puget Sound Basin of September 22, 2008. The proposed revisions will lead to no increased discharges to water; emissions to air; production, storage or release of toxic or hazardous substances; or production of noise.

Proposed measures to avoid or reduce such increases are:

Pollution impacts will be avoided and reduced by implementation of the proposed regulations.

2. How would the proposal be likely to affect plants, animals, fish, or marine life?

The proposed code amendments will lead to fitrther conservation and protection of plants, animals, fish and marine life.

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Proposed measures to protect or conserve plants, animals, fish, or marine life?

The proposed code amendments will bring City code into compliance with the National Flood Insurance Program (NFIP)and Endangered Species Act (ESA) Biological Opinion (BiOp)for the Puget Sound Basin of September 22, 2008.

3. How would the proposal be likely to deplete energy or natural resources?

The proposed amendments will not be likely to deplete energy or natural resources.

Proposed measures to protect or conserve energy and natural resources are:

The proposed amendments will protect natural resources through the requirements for regulating development within buffers adjacent to critical areas and providing for the protection of fish habitat.

4. How would the proposal be likely to use or affect environmentally sensitive areas or areas designated ( or eligible or under study) for governmental protection; such as parks, wilderness, wild and scenic rivers, threatened or endangered species habitat, historic or cultural sites, wetlands, floodplains, or prime farmlands?

The proposed code amendments will bring City code into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (ESA) Biological Opinion (Bi Op) for the Puget Sound Basin of September 22, 2008.

Proposed measures to protect such resources or to avoid or reduce impacts are:

The proposed code amendments are intended to protect such resources by regulating development in floodplains and critical areas, establishing buffers and requiring mitigation for loss of habitat.

5. How would the proposal be likely to affect land and shoreline use, including whether it would allow or encourage land or shoreline uses incompatible with existing plans?

The proposed code changes are compatible with existing plans and are intended to implement existing plans, and regulate land uses and development within the floodplain and critical area environments.

Proposed measures to avoid or reduce shoreline and land use impacts are:

The proposed code amendments are intended to protect shorelines and mitigate land use impacts by regulating development in floodplains and critical areas, establishing buffers and requiring mitigation for loss of habitat.

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6. How would the proposal be likely to increase demands on transportation or public services and utilities?

The proposed amendments will result in no increased demand on transportation services or public services and utilities.

Proposed measures to reduce or respond to such demand(s) are:

Not applicable.

7. Identify, if possible, whether the proposal may conflict with local, state, or federal laws or requirements for the protection of the environment.

The proposed amendments are expected to work in concert with local, state, and federal laws intended to protect the environment. The proposed code amendments will bring City code into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (ESA) Biological Opinion (BiOp) for the Puget Sound Basin of September 22, 2008.

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CITY OF LAKEWOOD NOTICE OF ISSUANCE OF DETERMINATION OF NON-SIGNIFICANCE (DNS)

Project Name: 2017 AMENDMENTS TO THE LAND USE AND

DEVELOPMENT CODE AND ENVIRONMENTAL PROTECTION CODE REGARDING FLOODPLAIN MANAGEMENT AND CRITICAL AREAS

Description of Proposal: City initiated amendments to the City’s Land Use and Development

Code (Title 18A of the Lakewood Municipal Code) and to the City’s Environmental Protection Code (Title 14A of the Lakewood Municipal Code). This proposal involves zoning code amendments to Title 18A of the City of Lakewood Municipal Code in regard to floodplain regulations and to Title 14A of the City of Lakewood Municipal Code in regard to critical areas and natural resource lands regulations. The proposed amendments will apply to certain lands within the Lakewood city limits that are located within the special flood hazard areas or critical areas and natural resource areas as defined. The proposed revisions will bring City code into compliance with the National Flood Insurance Program (NFIP) and the Endangered Species Act (ESA) Biological Opinion (BiOp) for the Puget Sound Region of September 22, 2008.

Proponent: City of Lakewood, Washington

Community Development Department

Lead Agency: City of Lakewood, Washington The Lead Agency for this proposal has determined that all potential significant adverse impacts on the environment will be addressed through mitigation measures including further project specific environmental reviews. An environmental impact statement is not required under RCW 43.21C.030(2)(c). Copies of the proposed amendments and the threshold determination are available to the public on request. This DNS is issued under 197-11-340 (2)(a)(v); the Lead Agency will not act on this proposal for 15-days beginning on December 29, 2016, and ending 15 days later on January 13, 2017. Comments on environmental effects, if any, must be submitted within this time period. Written comments are encouraged. A public hearing before the Planning Commission to take public testimony and consider the proposed amendments will be held on January 18, 2017, at 6:30 PM in the Lakewood City Council Chambers at 6000 Main Street SW. The decision of the Planning Commission will be forwarded to the Lakewood City Council as a recommendation for action. Responsible Official: David Bugher Community Development Director, City of Lakewood Address: 6000 Main Street SW

Lakewood, WA 98499-5027 Telephone: (253) 512-2261

025

The final threshold determination for Process V Legislative Actions is considered final and is not subject to administrative appeal. The DNS becomes final 14 days after issuance unless it is withdrawn by the Responsible Official.

026

CITY OF LAKEWOOD DETERMINATION OF NON-SIGNIFICANCE

PROJECT NAME:

PROJECT DESCRIPTION:

PROJECT PROPONENT:

SUMMARY:

2017 Amendments to the Land Use and Development Code and Critical Areas and Natural Resource Lands Regulations Regarding Floodplain Management and Critical Areas

Amendments to the City's Land Use and Development Code and Critical Areas and Natural Resource Lands Regulations to bring the City's floodplain management and critical areas ordinances into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (ESA) Biological Opinion (BiOp) for the Puget Sound Basin of September 22, 2008.

City of Lakewood 6000 Main Street SW Lakewood, WA 98499

This proposal involves zoning code amendments to Title 18A of the City of Lakewood Municipal Code in regard to floodplain regulations and to Title 14A of the City of Lakewood Municipal Code in regard to critical areas and natural resource lands regulations. The proposed amendments will apply to lands within the Lakewood city limits that are located within the regulatory floodplain or critical areas and natural resource areas as defined. The proposed revisions will bring City code into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (ESA) Biological Opinion (BiOp) for the Puget Sound Basin of September 22, 2008.

FINDINGS OF FACT:

1. On July 10, 2000, the Lakewood City Council adopted a new Comprehensive Plan as required by the Washington State Growth Management Act of 1995. An Environmental Impact Statement was prepared pursuant to the State Environmental Policy Act (SEP A) which addresses the enviromnental impacts caused by changes in land use proposed by the new Plan.

2. On August 20, 2001 the City adopted a Land Use and Development Code (Chapter 18A of the Lakewood Municipal Code). The broad intent of the Code is to implement the Comprehensive Plan. The adopted Code is intended to foster hannony among land uses, preserve the qualities of desirable residential neighborhoods, improve neighborhoods whose

City of Lakewood Floodplain and CAO Amendments Determination of Non-Significance December 29, 2017 027

character undennines good-quality living conditions, and promote the well-being of the city through integration of aesthetic, environmental, and economic values.

3. On November 15, 2004 the City adopted Critical Areas and Natural Resource Lands Regulations (Chapter 14A, Environmental Protection, of the Lakewood Municipal Code). It is the intent of the Critical Areas and Natural Resource Lands Regulations to designate and protect critical areas and natural resource lands, including wetlands, critical aquifer recharge areas, fish and wildlife habitat areas, geologically hazardous areas, flood hazard areas, and mineral resource lands, protect the natural environment, including air and water, to preserve the community's high quality of life, protect unique, fragile and valuable elements of the environment, including fish and wildlife habitat; including suitable habitats to maintain native fish and wildlife species within their natural geographic distribution so that isolated sub-populations are not created, protect the public against losses from costs of public emergency rescue and relief operations where the causes are avoidable and the degradation of the natural environment and the expense associated with repair or replacement, protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides, steep slope failures, erosion, seismic events, or flooding, avoid, minimize and mitigate for impacts arising from land development and other activities affecting critical areas to maintain their ecological functions and values including water quality, flood attenuation, habitat, recreation, education, and cultural preservation, provide the public with sufficient infonnation and notice of potential risks associated with developing in and adjacent to critical areas, and to implement the goals and requirements of the Growth Management Act and the Lakewood Comprehensive Plan.

4. The Community Development Department is now proposing to amend certain sections of the Land Use and Development Code (Title 18A of the Lakewood Municipal Code) and certain sections of the Critical Areas and Resource Lands Regulations (Title 14A, Environmental Protection, of the Lakewood Municipal Code). The proposed amendments will apply to certain lands within the City of Lakewood city limits that are located within the special flood hazard area or critical areas and natural resource areas as defined.

5. The proposed changes to the Land Use and Development Code and the Critical Areas and Natural Resource Lands Regulations are intended to bring City code into compliance with the National Flood Insurance Program (NFIP) and Endangered Species Act (BSA) Biological Opinion (Bi Op) for the Puget Sound Basin of September 22, 2008.

CONCLUSIONS OF RESPONSIBLE OFFICIAL:

The Responsible Official concludes that the proposed amendment to the Land Use and Development Code and the Critical Areas and Natural Resource Lands Regulations will help implement the provisions of the Comprehensive Plan. The proposed amendments to the Land Use and Development Code and the Critical Areas and Natural Resource Lands Regulations will not have any adverse effects on the environment beyond, or separate from, those of the Comprehensive Plan itself. Pursuant to WAC 197-11-350 (3), a DNS may be issued. This conclusion is based on staff review of the proposed code amendments and the environmental

City of Lakewood Floodplain and CAO Amendments Determination of Non-Significance December 29, 20 l 7 2 028

checklist. The environmental effects of specific projects allowed by the proposed ordinance amendments will be analyzed on a case-by-case basis, as required by the State Environmental Policy Act.

Agency:

Date of Issue:

City of Lakewood Community'Development Department 6000 Main Street SW Lakewood, WA 98499

December 29, 2016

Comment Deadline: January 13, 2017

Date of Final Determination:

NOTE:Pursuant to Lakewood Municipal Code Section 14.02.200, decisions of the Responsible Official regarding Process V Legislative Actions are final and are not subject to administrative appeal.

City of Lakewood Floodplain and CAO Amendments Determination of Non-Significance December 29, 2017 3 029

CITY OF LAKEWOOD NOTICE OF PUBLIC HEARING

Project Name: 2017 Flood Hazard Overlay and Critical Areas Ordinance

Amendments Description of Proposal: This proposal involves zoning code amendments to Title 18A of the City of Lakewood Municipal Code in regard to flood hazard overlay zone regulations and to Title 14A of the City of Lakewood Municipal Code in regard to environmental protection regulations. The proposed amendments will apply to lands within the Lakewood city limits that are located within certain areas of the special flood hazard area or critical areas and natural resource areas as defined. The proposed amendments are necessary for the City’s continued participation in the National Flood Insurance Program (NFIP) and to bring City code into compliance with the Endangered Species Act Biological Opinion for the Puget Sound Basin of September 22, 2008. The Planning Commission may choose to modify the amendments recommended by staff. The recommendation of the Planning Commission will be forwarded to the Lakewood City Council for final action. Proponent: Community Development Department City of Lakewood, Washington A public hearing before the Lakewood Planning Commission to take public testimony and consider the proposed amendments is scheduled for January 18, 2017, beginning at 6:30 P.M. The hearing will be held in the City Council Chambers, 6000 Main Street SW, Lakewood, WA. The decision of the Planning Commission will be forwarded to the Lakewood City Council as a recommendation for action. A copy of the proposed amendments and the staff report to the Planning Commission may be obtained at the Lakewood Community Development Department. Contact: Lakewood Community Development Department

Frank Fiori, Planning Manager 6000 Main Street SW

Lakewood, WA 98499-5027 Telephone: (253) 512-2261

To be published once in The News Tribune on December 29, 2016

030

Rev 06/2016

Notice of Proposed Amendment

Request for Expedited Review Pursuant to RCW 36.70A.106(3)(b), the following jurisdiction provides notice of a proposed development regulation amendment and requests expedited state agency review under the Growth Management Act. The expedited review period is 10 business days (14 calendar days). Proposed amendments to Comprehensive Plans are not eligible for expedited review. If needed, you may expand this form and the fields below, but please try to keep the entire form under two pages in length.

Jurisdiction: City of Lakewood Mailing Address: 6000 Main Street SW

Lakewood, WA 98499

Date: December 27, 2016

Contact Name: Frank A. Fiori Title/Position: Planning Manager Phone Number: 253-983-7716 E-mail Address: ffiori@cityoflakewood.us

Brief Description of the Proposed/Draft Development Regulations Amendment: (40 words or less)

Proposed amendments to the City’s flood hazard overlay regulations Title 18A.40.100, and to the City’s environmental protection regulations Title 14A. Amendments are to bring the City’s ordinances up to date with National Flood Insurance Program and FEMA requirements.

Is this action part of the scheduled review and update? GMA requires review every 8 years under RCW 36.70A.130(4)-(6).

Yes: ___ No: _X_

Public Hearing Date: Planning Board/Commission: January 18, 2017 Council/County Commission: February 21, 2017

Proposed Adoption Date: February 21, 2017

REQUIRED: Attach or include a copy the proposed amendment text or document(s). We do not accept a website hyperlink requiring us to retrieve external documents. Jurisdictions must submit the actual document(s) to Commerce. If you experience difficulty, please contact reviewteam@commerce.wa.gov.

031

Frank Fiori

From: Sent: To: Cc: Subject:

Dear Mr. Fiori:

COM GMU Review Team <reviewteam@commerce.wa.gov> Wednesday, January 11, 2017 7:32 AM

Frank Fiori Andersen, Dave (COM) 23244, City of Lakewood, Expedited Review Granted, DevRegs

The City of Lakewood has been granted expedited review for the: Proposed amendments to the City's flood hazard overlay regulations Title 18A.40. l 00, and to the City's environmental protection regulations Title 14A. Amendments are to bring the City's ordinances up to date with National Flood Insurance Program and FEMA requirements. This proposal was submitted for the required state agency review under RCW 36.?0A.106.

As of receipt of this email, the City of Lakewood has met the Growth Management Act notice to state agency requirements in RCW 36. 70A.1 06 for this submittal. For the purpose of documentation, please keep this email as confirmation.

If you have any questions, please contact reviewteam@commerce.wa.gov

Thank you.

Review Team, Growth Management Services Department of Commerce P.O. Box 42 52 5 Olympia WA 98504-2525

Disclaimer: Public documents and records are available to the public as required under the Washington State Public Records Act (RCW 42.56). The information contained in all correspondence with a government entity may be disclosable to third party requesters under the Public Records Act.

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035

TO: Mayor and City Councilmembers FROM: Courtney Casady, Assistant to the City Manager and Dave Bugher,

Assistant City Manager THROUGH: John J. Caulfield, City Manager

DATE: February 6, 2017 SUBJECT: Title 18A (Land Use and Development Code) update Purpose: The purpose of this memo is to introduce the City Council to the proposed updates to Title 18a. Background: The current version of Title 18A of the Lakewood Municipal Code was adopted in 2001. Since 2001 the City has made amendments to many sections of Title 18A in order to continue to adapt to new land uses and development standards. Despite our efforts, much has changed in the last 20 years, and the development code is in need of revision in order to address four primary change agents:

1. Update Code sections. Recent Supreme Court decisions including Reed v. Gilbert require that the City amend our municipal code. In addition, Staff is proposing to reference code regulations within the revised code of Washington (RCW) and Washington Administrative Code (WAC) in order to ensure consistency and compatibility with State Law.

2. Enhance Predictability in Permitting. Due to a variety of land use problems that the City of Lakewood inherited upon incorporation, administrative discretion was written into Title 18A because many development areas were unique and needed additional administrative review. Now, almost 20 years later, the City is in a position to revise some areas where approval from the Community Development Director is currently required, and enhance predictability in Permitting.

3. Improve Readability. Using new code structuring, the City will reorganize chapters, remove duplications within the code, include more charts and tables and revise our current land use types and levels. All of these amendments will make our code more user friendly for developers.

4. Increase Accountability. The new code will have all permit processing procedures clearly outlined. This will create more transparency by providing deadlines, staff expectations, explanation of review processes and providing a consistent level of administrative review for all permits.

036

Next Steps/ Timeline: 1. February 15, 2017: Staff will present to the Lakewood Planning Commission 2. March-August, 2017: The Planning Commission will review individual sections of

the proposed changes at their regularly scheduled meetings 3. September, 2017: The Planning Commission will conduct a public hearing and make

a recommendation to City Council Attachments: Title 18A Update Presentation

037

Lakewood City Council

Study Session

Title 18A Update

(Land Use & Development Code)

February 13, 2017

038

Recent Changes

In 2016 we made several large amendments to 18A: • Wireless Telecommunications • Cottage Housing • Planned Development District • Low Impact Development

039

Why is the City proposing to update Title 18A?

Enhance Predictability in

Permitting

• No Administrative Use Permit • Clarify requirements

Update Code Sections

• Come into conformance with new court decisions

• Reference Code Regulations with RCW’s and WAC

• Create a “place” for subarea plans • Incorporate room for new ideas and

land use types not currently in use.

Improve Readability

• Reorganized chapters • More charts & tables • Better Land-use typology

Increase Accountability

• Permit processing procedures clearly

outlined • More transparency: deadlines,

review, authority

040

Improving Readability: Example “Hello, I am interested in bringing a new Italian restaurant to Lakewood. We want to have space for 30 individuals, will serve alcohol, and will be open for lunch and dinner. Where can the restaurant be located within the City?”

Step 3

Step 1

Step 2

Step 5

Step 4

Planner will determine Use Type using LMC 18a.20.600.F

If customer hasn’t identified a property, planner will review 18a.30 in order to see where use is allowed

Use section 18A.50.500 to determine parking requirements

Use LMC 18A.50.231 and 18A.50.400 to determine other design standards

Use 18A.50.600 for sign regulations

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Improving Readability: Example 2 “Hello, I own a piece of property located at 111 S 3rd Street here in Lakewood. We are looking to sell, but want to know what types of uses would be allowed on the property. Can you help me with that? I believe it is zoned NC1.”

Step 3

Step 1

Step 2

Step 5

Step 4

Planner will review 18a.30.430.B in order to see what uses are allowed

Planner will define various Use Type’s using LMC 18a.20

Planner will explain the different processes for uses that are primarily permitted, administrative, conditional.

Review section 18A.70 for use specific standards, example: Daycare or bed and breakfast

Review section 18A.40 for appropriate overlay districts, example: PDD

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CURRENT CODE OUTLINE

PROPOSED CODE OUTLINE

Introduction Basic provisions

Administration Permitted uses

Discretionary permits General permit provisions

Location of sexually oriented businesses Discretionary permits

Land use types and levels Land use districts

Zoning districts Development standards

Overlay districts

Development standards

Use-specific standards

Eligible facilities modification code (wireless telecommunications)

Definitions

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Next Steps

Lakewood Planning Commission Introduction

February 15, 2017

Planning Commission will review individual sections at their regularly scheduled meetings

March- August, 2017

Planning Commission conducts public hearing and makes recommendation to City Council

September, 2017

Periodic Council Review (every 3 months)

Ongoing

044

To: Mayor and City Councilmembers From: David Bugher, Assistant City Manager, Development Services Through: John J. Caulfield, City Manager Date: February 13, 2017 (Study Session) Subject: 2017 Comprehensive Plan Amendment Process Summary: This memorandum discusses the 2017 City- and privately- initiated Comprehensive Plan amendment process. Two recommendations are proposed: 1) No City- initiated amendments for 2017; and 2) A revised schedule and process for privately- initiated Comprehensive Plan amendments. City- Initiated Amendments: Each year, the City Council is afforded the opportunity to initiate a process by which to amend the Comprehensive Plan and related land use and development regulations. The amendments can be text or map changes. The standard process has been to bring the matter to the attention of the Council during the first quarter of every year. Council approves a list of proposed amendments. The amendment process is initiated with action being taken no later than that December. In past years, 2014, 2015, and 2016, the City Council made fairly robust changes in the City’s Comprehensive Plan, in addition to adding new chapters such as a planned development district, low impact development, and cottage housing, revised floodplain, subdivision, and wireless telecommunications regulations, and a new zoning section for boarding houses. For 2017, the department’s work program is aggressive with three major tasks: A rewrite Title 18A, the City’s land use and development regulations; The initiation of Central Business District (CBD) subarea plan; and Implementation of the City’s Rental Housing Safety Program.

Behind-the- scenes, there are other projects underway including the PSRC funding and framework study, a PSRC employment capacity analysis (to be completed February 2017), a Pacific Highway redevelopment project (the WSDOT maintenance site), a new library, the Woodbrook Industrial Park, and the North Clear Zone (NCZ) Action Implementation Plan.

045

Staff has limited capacity to initiate Comprehensive Plan amendments unless these other work program items are removed and/or modified. With this as background, it is recommended that the City Council NOT initiate Comprehensive Plan/land use and development regulations for 2017. Privately- Initiated Amendments: Additionally, the department recommends that private proposals be submitted at any time in 2017; however, to be considered, they must be submitted by a deadline set by the City Council. The department is recommending a deadline date of 4:00 PM, September 29, 2017. Thereafter, all private proposals shall be considered collectively, again by the City Council. The department would maintain a log or docket of all such proposals including a summary of the proposal, the principal proponent’s name and address, the date on which the proposal was submitted, and its review status. This log or docket is forwarded to the City Council for review; this would occur in late fall of 2017. Council would approve the final docket. Proposed amendments that go beyond the scope of an amendment process (a project which requires an EIS, for example), a proposal that does not meet criteria set by the council (consistency with the various elements of the Comprehensive Plan, consistency with county-wide planning policies, and compliance with GMA), or the likelihood of inclusion of the proposal in the department’s future work program, would be set aside. Only those proposals approved by the City Council would move forward. Application fees would then be paid. Hearings would be conducted in the summer of 2018 with conclusion of the amendment process no later than August. This approach, approval of an amendment docket, is used by the cities of Bellevue, Bothell, Federal Way, Lacey, Kent, Olympia, and Tukwila. This proposal changes the current review process. It does away with the current situation where Comprehensive Plan amendments/development regulations are considered at the end of the year which often competes with other Council agenda items, namely budget.

046

To: Mayor and City Councilmembers From: Matthew S. Kaser, Asst. City Attorney Through: John J. Caulfield, City Manager Date: February 13, 2017 Subject: Revised Panhandling Code Amendments In July 2016, the Washington Supreme Court issued a 6-3 decision in the case of City of Lakewood v. Robert Willis, invalidating several portions of the City of Lakewood Municipal Code codified at chapter 9A.04 LMC pertaining to begging and panhandling. In light of the decision by the Washington Supreme Court and other decisions nationally, Staff recommends that the City Council enact an Ordinance which repeals in its entirety the current chapter 9A.04 LMC and replace it with a new one. In order to put this request in context, it is necessary to understand the national legal landscape, together with an understanding of what the Washington Supreme Court did in Willis and the United States Supreme Court’s 2015 decision in Reed v. Town of Gilbert.

Pre-2015 Responses to Panhandling. Anti-panhandling regulation has a long appellate history throughout federal (and to a lesser extent, state courts). In City of Seattle v. Webster, 115 Wn.2d 635, 802 P.2d 1333 (1990), the Washington Supreme Court held that municipalities may impose panhandling and solicitation regulations, provided that those regulations conform to the requirements of the First Amendment. This is in accord with the United States Supreme Court’s

047

observations that “[s]oliciting financial support is undoubtedly subject to reasonable regulation[.]” Schaumburg v. Citizens for Better Env't, 444 U.S. 620, 632 (1980). Post-Webster and until Willis, only one Washington case revised the acceptable bounds of such panhandling regulations. In that case, City of Spokane v. Marr, 129 Wash. App. 890, 120 P.3d 652 (2005), the challenge was to the sufficiency of the facts of a criminal charge and did not squarely address the constitutional issues. On the federal level and in other state appellate courts, anti-panhandling regulations were surviving First Amendment challenges. These decisions focused on two discrete areas: (1) whether the area was a public forum; and (2) was the ordinance “content neutral.”

Public v. Private Forum Whether the location is a “public forum,” represents a “fork,” in the analysis; “an analysis of the ‘character of the property at issue’ is the touchstone of a legal inquiry into the constitutional validity of a regulation that attempts to limit expressive activity.” City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 350, 96 P.3d 979 (2004) (quoting, Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983)). Under both the federal and state constitutions, “[s]peech in nonpublic forums may be restricted if ‘the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.’” Mighty Movers, 152 Wn.2d at 351 (quoting, Seattle v. Huff, 111 Wn.2d 923, 928, 767 P.2d 572 (1989) (ellipsis removed)). On the other hand, “speech in a public forum … is subject to restrictions on time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Mighty Movers, 152 Wn.2d at 350 (citations omitted). “Generally, courts looking at the question of whether government owned property is a public forum have considered whether a ‘principal purpose’ of the property is the free exchange of ideas, whether the property shares the characteristics of a traditional public forum, and the historical use of the property.” Sanders v. City of Seattle, 160 Wn.2d 198, 211, 156 P.3d 874 (2007) (citations omitted). Content Neutral Time Place and Manner Requirements The touchstone in determining whether a regulation is content neutral, “in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not

048

others. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986); Ward, 491 U.S. at 791. Lakewood’s Code currently limits “begging,” which is defined as “asking for money or goods as a charity, whether by words, bodily gestures, signs or other means.” LMC 9A.4.020(E). This definition mirrors virtually word-for-word the definition of “begging,” contained in a City of Seattle Ordinance which was at issue and withstood multiple forms of constitutional challenge. Roulette v. City of Seattle, 850 F. Supp. 1442, 1451 (W.D. Wash. 1994), aff’d on other grounds, 78 F.3d 1425 (9th. Cir. 1996).1 Pre-Reed, those federal courts to have considered the issue have uniformly recognized that municipal prohibitions on roadside begging constitute valid time, place and manner regulations. See e.g., International Soc. for Krishna Consciousness, Inc. v. Baton Rouge, 876 F.2d 494 (5th Cir., 1989); Gresham v. Peterson, 225 F.3d 899 (7th Cir., 2000); Association of Community Organizations for Reform Now v. St. Louis County, 930 F.2d 591 (8th Cir. 1991); see also, Smith v. City of Fort Lauderdale, 177 F.3d 954 (11th Cir. 1999) (ordinance prohibiting panhandling on five-mile strip of beach and two attendant sidewalks); Acorn v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), overruled in part by Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir 2011). Post-Reed, most challenges to related ordinances have succeeded.

Reed v. Town of Gilbert. In June 2015, the United States Supreme Court issued a decision in Reed v. Town of Gilbert. Provisions in a the Town of Gilbert’s imposed more stringent restrictions on signs directing the public to a meeting of a nonprofit group than it did on signs conveying other messages. The Court held these to be improper content-based regulations of speech because the restrictions in the sign code that applied to any given sign depended entirely on the communicative content of the sign. These provisions could not survive First Amendment strict scrutiny because the town could not claim that placing strict limits on temporary directional signs was necessary to beautify the town while at the same time allowing unlimited numbers of other types of signs that created the same problem, and had not shown that limiting temporary directional signs was necessary to eliminate threats to traffic safety, but that limiting other types of signs was not.

1 Although Roulette was appealed, the Ninth Circuit was not called upon to review this definition. 97 F.3d at 302 fn. 2.

049

Two key concepts from Reed should be drawn: Content-Based Distinctions.

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys.

135 S. Ct. 2218, 2227 (internal citations omitted).

Government discrimination among viewpoints—or the regulation of speech based on “the specific motivating ideology or the opinion or perspective of the speaker”—is a “more blatant” and “egregious form of content discrimination.” But it is well established that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.”

135 S. Ct. at 2230. Content-Neutral Distinctions. The several opinions of the court outline some valid distinctions for regulation. In his majority opinion, Justice Thomas noted that local governments still have “ample content-neutral options available to resolve problems with safety and aesthetics” (slip op., at 16). Justice Alito’s concurring opinion identifies regulation of, among other things, which would likely survive the tests set forth by the Court:

•size •building materials •lighting •moving parts •portability

Moreover, “on public property the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner” (slip op., at 16). A local ordinance or state statute can prohibit all signs in the public right-of-way. But, if signs are allowed, the regulations must not distinguish based on the content of the message. Regulations that allow some, but not all, noncommercial signs run afoul of the Reed decision.

050

City of Lakewood v. Willis: What the WSSC Held … And What it Did Not Hold. Lakewood’s Municipal Code has two general provisions which were invalidated. The first, relates to the definition of “begging.” The Code defines “begging,” as follows:

Begging means asking for money or goods as a charity, whether by words, bodily gestures, signs or other means.

(Emphasis added). This provisions was invalided on a reading of Reed. The second addressed location-based limitations. The Code prohibits “begging,” at the following locations:

Begging shall be deemed a violation of this section of the municipal code under the following conditions: (1) at on and off ramps leading to and from state intersections from any City roadway or overpass; (2) at intersections of major/principal arterials (or islands on the principal arterials) in the City; …

(Emphasis added). The Supreme Court held that these locations (i.e., that a restriction “at”) these locales were public forums. It reasoned, that “ramps in Lakewood are public forums—they are ‘accessible to and from general pedestrian traffic[.]’” Willis, 186 Wn.2d at 224.

Responses & Options To eliminate the chilling effect of an overbroad law, we must declare it void as a whole and require the City to go back to the drafting table to craft a constitutionally permissible ordinance.

City of Lakewood v. Willis, 186 Wn.2d at 227 n.21 (Concurrence of Stevens, J.) 1. Location-Based Regulations Might Still Survive. Under Reed and Willis, location-based challenges might survive. The danger, from a First Amendment perspective, is that a court may conclude after-the-fact that the location in question is a public forum entitled to heightened protection under the First Amendment.

051

2. Focus on Specific Conduct Other than “Begging.” Following Reed many municipal panhandling ordinances have been struck down. Two have been located which have survived. The first involves a challenge brought to several portions of a Missouri Ordinance. One portion survived challenge. That provision provides in full:

"No person shall stand in or enter upon a Roadway for the purpose of distributing anything to the occupant of any vehicle."

Traditionalist Am. KKK v. City of Desloge, No. 4:13-CV-810 NAB, 2016 U.S. Dist. LEXIS 21630, at *12 (E.D. Mo. Feb. 23, 2016)(Emphasis by the Court). A second comes from Texas. The relevant ordinance in question provides in full:

No person who is within a public roadway may solicit or sell or distribute any material to the occupant of any motor vehicle stopped on a public roadway in obedience to a traffic control signal light. It is specifically provided, however, that a person, other than a person twelve years of age or younger; may solicit or sell or distribute material to the occupant of a motor vehicle on a public roadway so long as he or she remains on the surrounding sidewalks and unpaved shoulders, and not in or on the roadway itself, including the medians or islands.

Following a Reed-based challenge, this language was found to be constitutional. Watkins v. City of Arlington, 123 F.Supp. 3d 856 (2015). Although the language in both have been found by federal courts to be sound, it poses a separate set of issues and does not get to the issues raised within the City. The approach outlined in the proposed Ordinance generally follows this approach but does not focus on panhandling. Instead, it focuses on pedestrian interference with the public roadways. The operative language is contained in Section 3 and provides:

No person shall interrupt, distract or obstruct the free passage of vehicle or bicycle travel by walking on, standing on or going into any roadway used for vehicle or bicycle travel and contacting any vehicle, bicycle or occupant therein.

052

Restated, this language required three things: (1) that the individual “interrupt[s], distract[s] or obstruct[s] the free passage of vehicle or bicycle travel;” (2) when they walk on, stand on, or go into any roadway used for travel; and (3) contact any vehicle, bicycle or occupant. This approach avoids the problems outlined in Willis and Reed. It does not focus on speech. Instead, it focuses on specific behavior. And, it protects First Amendment rights. Individuals are free to engage in their First Amendment rights, but as case law has confirmed, the rights of those pedestrians end at the roadway curb.

053

ORDINANCE NO. XXX

AN ORDINANCE of the City Council of the City of Lakewood, Washington, creating Chapter 9A.04A of the Lakewood Municipal Code and repealing Chapter 9A.04; related to Pedestrian Interference.

WHEREAS, in July 2016, the Washington Supreme Court in City of Lakewood v. Willis, 186 Wn.2d 210, 375 P.3d 1056 (2016) invalidated two provisions of chapter 9A.04 of the City of Lakewood Municipal Code relative to Aggressive Begging as violating the First Amendment of the United States Constitution; WHEREAS the purpose of streets, highways, and roads is to move people and goods both safely and efficiently and streets, highways, and roads are not designed for the purpose of soliciting funds. Direct personal solicitation from drivers distracts them from their primary duty to watch the traffic and potential hazards in the road, observe all traffic control signals or warnings, and prepare to move through the intersection; and

WHEREAS laws which are narrowly tailored to serve the significant governmental interest in traffic flow and roadway safety have been upheld, including a ruling from the Fifth Circuit of the United States Court of Appeals, which upheld an ordinance that prohibited individuals from soliciting the occupants of vehicles while the individual was in the street or roadway, street or roadway shoulder, or neutral ground of any street or roadway in International Society for Krishna Consciousness of New Orleans, Inc. v. City of Baton Rouge, 876 F.2d 494 (5th Cir. 1989); and

WHEREAS legislation which prohibits pedestrians from entering traffic to approach traffic has been held to “serve[s] a compelling interest at the heart of the government's function: public safety" in Houston Chronicle Publishing Co. v. City of League City, Texas, 488 F.3d 613 (5th Cir. 2007); and WHEREAS in the City of Lakewood, police documents thirty-four recorded accidents involving pedestrians in 2011. One pedestrian was killed in these accidents. Twenty-seven people were injured in these accidents; and WHEREAS in the City of Lakewood, police documents forty-three recorded accidents involving pedestrians in 2012. Thirty two-people were injured in these accidents; and WHEREAS in the City of Lakewood, police documents forty-three recorded accidents involving pedestrians in 2013. Thirty people were injured in these accidents; and WHEREAS in the City of Lakewood, police documents forty recorded accidents involving pedestrians in 2014, one of which was a fatality. Twenty-six people were injured in these accidents; and

054

WHEREAS in the City of Lakewood, police documents fifty-six recorded accidents involving pedestrians in 2015, one of which was a fatality. Thirty-four people were injured in these accidents; and WHEREAS in the City of Lakewood, police documents fifty-six recorded accidents involving pedestrians through mid-December 2016, one of which was a fatality. Thirty-three people were injured in these accidents; and WHEREAS the Lakewood Police Department received no less than 193 calls for service (CFS) for panhandling in 2011, 130 in 2012, 145 in 2013, 163 in 2014, 176 in 2015 and 83 CFS through mid-December 2016; and WHEREAS, a safety hazard has been identified with pedestrians attempting to interact with the drivers and passengers of vehicles at busy intersections within the City of Lakewood, including pedestrians leaving the edge of the curb and actively entering the roadway; and WHEREAS, the practice of pedestrians interacting with the drivers and passengers of vehicles while the pedestrian is in the roadway has been identified as being unsafe for both the pedestrians and for traffic in general; and WHEREAS, the practice of pedestrians interacting with the drivers and passengers of vehicles while the pedestrian is in the roadway constitutes an impediment to the normal and safe flow of traffic in the City of Lakewood; and WHEREAS, the City may impose reasonable time, place and manner restrictions in a traditional public forum that serve the City's significant public safety interests; and WHEREAS, the City finds that limiting the interaction between pedestrians and occupants of vehicles at intersections controlled by traffic signal lights promotes the safety of not only pedestrians but also vehicular traffic and, leaves open ample alternative channels of communication; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKEWOOD, WASHINGTON, DO ORDAIN as follows: Section 1: A new chapter 9A.04A LMC entitled, “Pedestrian Interference,” is created. Section 2: Section 9A.04A.010 LMC entitled “Definitions” is created to read as follows: As used in this chapter: (1) “Curb” means the lateral lines of a roadway, whether constructed above grade or not, which are not intended for vehicular travel.

055

(2) “Roadway” means that portion of the public street including the vertical airspace above such portion of the public street, which is improved, designed or ordinarily used for vehicular travel, exclusive of the curb, berm or shoulder. Section 3: Section 9A.04A.020 LMC entitled “Prohibited Acts” is created to read as follows: No person shall interrupt, distract or obstruct the free passage of vehicle or bicycle travel by walking on, standing on or going into any roadway used for vehicle or bicycle travel and contacting any vehicle, bicycle or occupant therein. Section 4: Section 9A.04A.030 LMC entitled “Violation” is created to read as follows: Any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor. Section 5: Chapter 9A.04 LMC is repealed in its entirety.

Section 6: Severability. If any section, sentence, clause, or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of any other section, sentence, clause, or phrase of this ordinance.

Section 7: Effective Date. This ordinance shall take place thirty (30) days after its

publication or publication of a summary of its intent and contents.

ADOPTED by the City Council this ___ day of February, 2017. CITY OF LAKEWOOD _________________________ Don Anderson, Mayor

Attest: _______________________________ Alice M. Bush, MMC, City Clerk Approved as to Form: _______________________________ Heidi A. Wachter City Attorney

056