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HomeMy WebLinkAboutHE Determination HE 2020-005 WSDOT Noise Variance CITY OF PASCO HEARING EXAMINER FINDINGS OF FACT, CONCLUSIONS OF LAW,AND DECISION Noise Exception Request,Variance MF#HE 2020-005 Washington State Department of Transportation (WSDOT) March 25, 2021 1. FINDINGS OF FACT 1.1 Proposal. Exception to noise ordinance to complete a sound wall project which will result in permanently reduced noise impacts in the project area. The majority of construction work, including heavy equipment use, will occur during night hours over approximately 50 working days. No detours are anticipated, though single-lane closures may be needed periodically. 1.2 Applicant. WSDOT South Central Region, c/o Bill Sauriol, Environmental Manager, 2809 Rudkin Road, Union Gap, WA 98903. 1.3 Location. WSDOT Right-of-Way east of the northbound lanes of US 395, between mileposts 19.07 and 19.33. 1.4 Site and Surrounding Area Zoning. The site, developed with US 395 and a walking path, is in the WSDOT Right-of-Way and has no City zoning designation. Property to the east is zoned RP (Residential Park) and developed with the Flamingo Village Mobile Home Park. Property to the west is zoned R-1 and developed with single-family residences. 1.5 Hearing. A properly noticed open record public hearing was held on March 10, 2021. Due to COVID-19 restrictions, the hearing was conducted remotely, with the Examiner, Department, and Applicant calling in. Access information was available to the public to allow citizens to join via either a video link or telephone call-in. There were no reported technical difficulties during the call or afterwards. However, in case any citizens who wished to comment had difficulty calling in, the record was kept open through March 12. No additional written comments were received. The Department, through Mr. White, summarized the proposal. Mr. Sauriol appeared for the Applicant. No member of the public commented. 1.6 Evidence Reviewed. The Examiner reviewed the Staff Report, which attached maps (vicinity, use, zoning, and comprehensive plan), WSDOT letters and flyers to Flamingo Village residents, photos of the surrounding area, application materials, and the notice of application. 1.7 Notice. Hearing notice was mailed to property owners within 300 feet and published in the newspaper on February 19, 2021. An opportunity for public comment was provided, and no notice concerns were raised. Notice requirements were met.l 1 Staff Report,p. 6;PMC 9.130.060(3). City of Pasco Hearing Examiner Page 1 of 4 Decision,WSDOT Noise Exception,MF#HE 2020-005 1.8 Exception Request. Residents of Flamingo Village experience noise levels from US 395 exceeding city maximum permissible environmental noise limits, averaging around 63.2 dBA, with a 67.4 dBA maximum. WSDOT is proposing to construct a noise wall between Flamingo Village and US 395. Flamingo Village was identified by WSDOT as a community qualifying for a Type II noise wall retrofit to reduce traffic noise impacts to the community. Type II noise walls are constructed for communities established before 1976 when noise abatement criteria were established. The noise limit for residential zones is 55 dBA during the day, and 45 dBA at night.2 The equipment required for constructing the sound wall would create noise of 79.2 dBA on average for about 50 workdays.3 A noise exception is required. 1.9 Staff Report and Conditions. Except as the Decision revises it, the Staff Report is incorporated. The proposed conditions are taken largely as is, but are made mandatory, to ensure mitigation minimizes noise for adjacent residents. Also, exception revocation is addressed in the conditions, should non-compliance with the conditions become an issue and the Applicant's schedule for completing work is added as a condition. 2. CONCLUSIONS 2.1 The Title 9 exception process may be used to approve noise ordinance exceptions. This contrasts with the Title 25 variance process, which allows variances from Title 25 land use requirements. The Examiner asked about the preferable process for reviewing the exception request, and the Applicant and Department did not express a preference. The exception process is built into the noise code and designed to address this type of situation, so is utilized. 2.2 The Hearing Examiner may approve an exception to PMC 9.130.040 exceeding 30 days in certain circumstances: Exceptions may be granted to any person from any requirement of PMC 9.130.040 if findings are made that immediate compliance with such requirement cannot be achieved because of special circumstances rendering immediate compliance unreasonable in light of economic or physical factors, encroachment upon an existing noise source or because of nonavailability of feasible technology or control methods. Applications shall be made to the Director of Community and Economic Development. Exceptions shall be issued only upon application in writing and after providing such information as may be requested. No exception shall be issued for a period of more than 30 days except upon due notice to the public with opportunity to comment to the City Hearing Examiner. The City Hearing Examiner shall make a final determination of approval or disapproval of an exception for a period exceeding 30 days. Public hearing may be held before the City Hearing Examiner in any case when substantial public interest is shown, at the discretion of the Director. z PMC 9.130.040. 3 Staff Report,p. 6. City of Pasco Hearing Examiner Page 2 of 4 Decision,WSDOT Noise Exception,MF#HE 2020-005 Any such exceptions or renewal thereof shall be granted only for the minimum time period found to be necessary under the facts and circumstances. An implementation schedule for achieving compliance with this chapter shall be incorporated into any exception from PMC 9.130.040 that is issued. Sources of noise, subject to this chapter, shall immediately comply with the requirements of this chapter, except in extraordinary circumstances where overriding considerations of public interest dictate the issuance of an exception.4 2.3 The sound wall is necessary to reduce a longstanding freeway noise issue for nearby residents. The majority of work is scheduled for night hours to reduce traffic impacts and complete the project on a faster timeline. Not allowing or limiting the night work would prolong the project and increase impacts on nearby residents. These special circumstances render immediate noise ordinance compliance unreasonable. 2.4 To achieve effective noise management, WSDOT will require the awarded contractor to develop a noise management plan that outlines the type of equipment to be used on the project and the equipment decibel levels. WSDOT is considering building additional noise management options into the contract, including providing a 24-hour contact for noise concerns. This should be mandatory. Other noise management requirements used on WSDOT projects include prohibiting tailgate banging, use of noise shields/blankets around equipment, and vehicle bed liners, among others. 2.5 The exception is requested because noise impacts from the project will be temporary, with the completed project resulting in permanently reduced noise impacts in the project area. The exception meets the PMC 9.130.060 criteria and should be approved. DECISION The Hearing Examiner, pursuant to the above Findings of Fact and Conclusions of Law, approves the requested exception provided these conditions are adhered to: 1. WSDOT shall require the awarded contractor to develop a noise management plan. 2. WSDOT shall consult with the City of Pasco for review of the noise management plan. 3. WSDOT shall comply with and include these noise management measures in any contracts: a. Provide a 24-hour noise concerns contact. b. Prohibit tailgate banging; enforceable with City of Pasco nuisance fines. c. Install noise shields/blankets around equipment. d. Include noise buffering measures to ensure noise levels remain within levels depicted in the Application materials. 4. WSDOT is responsible for ensuring compliance with these conditions. 4 PMC 9.130.060(2)-(6). City of Pasco Hearing Examiner Page 3 of 4 Decision,WSDOT Noise Exception,MF#HE 2020-005 5. Work shall be completed within 50 days, with one automatic ten-day extension. 6. If conditions are not complied with, the Hearing Examiner may revoke the exception. Absent emergency circumstances in which public health or safety is materially unpaired, revocation would only follow notice and an opportunity for the Applicant to address compliance. The revocation remedy does not foreclose the use of other enforcement remedies. Absent a timely appeal,this Decision is final.5 DECISION entered March 25, 2021. City of Pasco Hewing Examiner Susan Elizabeth Drummond 5 See Ch.36.70C RCW(establishing 21 day appeal period to superior court,and setting forth necessary petition for review contents,along with filing and service requirements). City of Pasco Hearing Examiner Page 4 of Decision, WSDOT Noise Exception, MF#HE 2020-005