ORDINANCE ________

AN ORDINANCE relating to energy conservation; requiring owners of nonresidential and multi-family buildings to measure and disclose energy efficiency performance, and adding a new Chapter 22.920 to Title 22 of the Seattle Municipal Code.

WHEREAS, the City established a goal of achieving a 20% improvement in energy performance of existing buildings by 2020, as compared to 2005 levels; and

WHEREAS, the City has adopted nationally-leading energy codes in order to achieve high levels of efficiency in new construction and major renovations; and

WHEREAS, in order to have a significant impact on community-wide energy use in the coming decades, it is imperative that efficiency savings be achieved in buildings constructed prior to the adoption of current energy codes; and

WHEREAS, cost-effective energy efficiency improvements are proven to increase housing affordability and lower business operating costs; and

WHEREAS, Seattle City Light has a proven record of implementing energy conservation as a strategy to avoid the need for additional electric generating capacity; and

WHEREAS, a Green Building Task Force was established in July 2008 to identify and recommend programs to implement cost-effective energy efficiency retrofits and upgrades to Seattle homes and buildings; NOW, THEREFORE,

BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:

Section 1. A new Chapter 22.920 is added to Title 22 of the Seattle Municipal Code as follows:

22.920 Energy Use Benchmarking

22.920.010 Applicability

A. This chapter applies to all nonresidential and multi-family benchmarking buildings as defined in the following table:

Description Reporting Requirements

1. A structure or any portion of a Nonresidential benchmarking structure which: a) Is subject to the provisions of the Seattle Building Code, and b) Has a gross area of more than 10,000 square feet, excluding parking, and c) Is any classified occupancy under the Seattle Building Code other than Residential R-2 or R-3.

2. A structure or any portion of a Multi-family benchmarking structure containing five or more dwelling units and classified under the Seattle Building Code as a Residential Group R-2 occupancy.

3. Buildings subject to the Exempt Seattle Residential Code.

4. All others not listed Exempt

B. Building owners shall comply with the nonresidential-benchmarking building standards when 50% or more of the gross building area, excluding parking, is used for nonresidential-benchmarking building uses; and

C. Building owners shall comply with the multi-family-benchmarking building standards when more than 50% of the gross building area, excluding parking, is used for multi-family-benchmarking building uses.

22.920.020 Definitions

For purposes of this chapter only, the following words shall mean:

A. "Building Owner" means an individual or entity possessing a fee interest in an nonresidential or multi-family benchmarking building. Where a condominium is subject to this chapter, "Building Owner" means the owners' association. In a condominium where the powers of an owners' association are exercised by or delegated to a master association, as defined in RCW 64.34.276, "Building Owner" means the master association.

B. "Certificate of Occupancy" means the certificate issued by the Director after final inspection, allowing the building to be occupied.

C. "Condominium" means real property, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions, as defined in RCW 64.34.020.

D. "Director" means the Director of the Department of Planning and Development.

E. "Dwelling unit" means a single unit providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.

F. "Energy Benchmarking" means the assessment of a building's energy use and efficiency.

G. "Energy Performance Rating" means the score provided by the Energy Star Portfolio Manager program indicating the relative energy efficiency performance of a building as compared to similar buildings nationwide.

H. "Energy Star Portfolio Manager" means the tool developed and maintained by the United States Environmental Protection Agency to track and assess the relative energy performance of similar buildings nationwide.

I. "Initial Occupancy Date" means the date that a certificate of occupancy was first issued for a building. If no certificate of occupancy was issued, the date any utility service was first billed for the building shall be the initial occupancy date.

J. "Owners' Association" means the entity consisting exclusively of all the unit owners in a condominium, as defined under RCW 64.34.300.

K. "Tenant" means a person occupying or holding possession of a building or premises pursuant to a rental agreement

L. "Utility" means an entity that distributes and sells natural gas, electric, or thermal energy services for buildings.

22.920.030 Nonresidential-benchmarking buildings preparing energy benchmarking reports

Building owners of each building subject to nonresidential benchmarking requirements shall provide to the Director, using the Energy Star Portfolio Manager or a similar rating system and in such form as established by Director's rule, an initial energy benchmarking report and, where available, an energy performance rating for each building according to the following schedule:

A. By April 1, 2011 for buildings larger than 50,000 square feet and having an initial occupancy date before January 1, 2010;

B. By April 1, 2012 for buildings larger than 10,000 square feet and having an initial occupancy date before January 1, 2011; and

C. By one year after the initial occupancy date for all other buildings having an initial occupancy date of January 1, 2011 or later.

22.920.040 Multi-family-benchmarking buildings preparing energy benchmarking reports

Building owners of each building subject to multi-family benchmarking requirements shall provide to the Director, using the Energy Star Portfolio Manager or a similar rating system and in such form as established by Director's rule, an initial energy benchmarking report and, where available, an energy performance rating for each building according to the following schedule:

A. By April 1, 2012 for buildings having an initial occupancy date before January 1, 2011; and

B. By one year after the date of initial occupancy for all other buildings having an initial occupancy date of January 1, 2011 or later.

22.920.050 Providing benchmarking information to the building owner

Each tenant located in a building subject to this chapter shall, within 30 days of a request by the building owner, provide in a form that does not disclose personally-identifying information, all information that cannot otherwise be acquired by the building owner and that is needed by the building owner to comply with the requirements of this chapter. A failure to provide information to a building owner may result in penalties as provided under SMC 22.920.120 (C).

22.920.060 Maintaining energy utility records

Utilities providing energy service to a nonresidential or multifamily benchmark building shall maintain energy consumption data for each building for at least the most-recent twelve months in a format capable of being uploaded to the United States Environmental Protection Agency's Energy Star Portfolio Manager.

On and after June 1, 2010, upon written or secure electronic authorization by an authorized representative of the building owner, the utility providing energy service to the building shall upload the utility consumption data for the accounts specified by an authorized representative of the building owner to the United States Environmental Protection Agency's Energy Star Portfolio Manager, in a form that does not disclose personally-identifying information. Utility companies have 60 days from receipt of such written or secure electronic authorization to upload information to Energy Star Portfolio Manager.

22.920.070 Updating energy benchmarking reports

A. Building owners of each building subject to the benchmarking requirements of this chapter shall provide to the Director, using the Energy Star Portfolio Manager or a similar rating system and in such form as established by Director's rule, an updated energy benchmarking report and, where available, an energy performance rating for each building by April 1 of every year.

B. The benchmarking reports and energy performance ratings shall be based on data from the twelve-consecutive months of the previous calendar year.

22.920.080 Disclosing energy benchmarking reports

Upon request of any of the following parties, building owners subject to this chapter must provide within seven days of the request, in such form as established by Director's rule, a copy of the most current energy benchmarking report and, where available, an energy performance rating to:

A. Current tenants,

B. Prospective tenants negotiating a rental agreement,

C. Potential buyers negotiating a purchase and sale agreement, and

D. Potential lenders considering an application for financing or refinancing of the building.

22.920.090 Violations

It is a violation of this chapter for any person or entity to fail to comply with the requirements of the chapter or misrepresent any material fact in a document required to be prepared or disclosed by this chapter.

22.920.100 Authority to enforce

A. The Director shall have the authority to enforce this chapter.

B. This chapter shall be enforced for the benefit of the health, safety, and welfare of the general public, and not for the benefit of any particular person or class of persons.

C. It is the intent of this chapter to place the obligation of complying with its requirements upon the owners of the buildings and other persons subject to this chapter.

D. The Director should exercise discretion when enforcing this chapter and not seek to impose penalties on a utility that is exercising good faith efforts to comply with the requirements of this chapter.

E. No provision or term used in this chapter is intended to impose any duty upon the City or any of its officers or employees that would subject them to damages in a civil action.

22.920.110 Investigating violations and issuing citations or notices of violation

A. The Director is authorized to investigate and determine if any building owner, tenant or other person subject to this chapter has not complied with its requirements.

B. If after investigation, the Director determines that the requirements of this chapter have been violated, the Director may issue a citation or notice of violation as provided below to the building owners, tenants or other persons subject to this chapter for failing to comply with this chapter.

C. The citation or notice of violation shall state the requirement that was violated and what corrective action is necessary to remedy the violation.

D. The citation or notice of violation shall be served on the building owners, tenants or other persons subject to this chapter as provided for in Seattle Municipal Code 23.90.006 C.

E. A copy of the citation or notice of violation may be filed with the King County Department of Records and Elections if any building owner fails to correct the violation or the Director requests the City Attorney take appropriate enforcement action.

F. Nothing in this section shall be deemed to limit or preclude any action or proceeding to enforce this chapter nor does anything in this section obligate the Director to issue a citation or notice of violation prior to initiating a civil enforcement action.

22.920.120 Remedies

A. If the Director determines that a building owner has failed to prepare an accurate energy benchmarking report or energy performance rating as required by this chapter, the Director may, in addition to any other remedy authorized by law or equity, seek the following remedies:

1. A $150 citation may be issued the first time a building owner fails to prepare or update an energy benchmarking report. The citation shall not be issued to the building owner when failure to prepare or report an energy benchmarking report is due to a tenant's failure to provide information required under Section 22.920.050;

2. If a benchmarking report is not filed within 15 days of the date the citation is issued, the City may issue a notice of violation with a penalty of $150 per day for the first 10 days of noncompliance, then $500 per day for each day in violation past the 10th day until compliance is achieved; and

3. If a building owner of a building subject to this chapter has been previously issued a citation under this chapter within the past four (4) years of the date the citation was issued, all subsequent violations for failing to prepare or update an energy benchmarking report shall be subject to a notice of violation.

B. If the Director determines that a building owner has failed to disclose an energy benchmarking report or energy performance rating as required by this chapter, the Director may, in addition to any other remedy authorized by law or equity, seek the following remedies:

1. A $150 citation may be issued for the first violation,

2. A $500 citation may be issued for the second or subsequent violation, and

3. If a building owner of any building subject to this chapter has been previously issued a citation under this chapter within the past two (2) years, all subsequent violations by that building owner for failing to disclose an energy benchmarking report shall be subject to a $500 citation.

C. If the Director determines that a tenant has failed to provide information to a building owner as required under Section 22.920.050, the Director may, in addition to any other remedy authorized by law or equity, seek the following remedies:

1. A $150 citation may be issued for the first violation,

2. A $500 citation may be issued for the second or subsequent violation, and

3. If a tenant of any building subject to this chapter has been previously issued a citation under this chapter within the past two (2) years, all subsequent violations by that tenant for failing to provide information to a building owner as required under Section 22.920.050 shall be subject to a $500 citation.

D. Any other violation of this chapter shall be subject to the issuance of a notice of violation and corresponding penalty provisions.

22.920.130 Review of Notice of Violation by Director

A. A notice of violation shall be final and not subject to further administrative review unless an aggrieved party requests in writing a review by the Director within 10 days after service of the notice of violation. When the last day of the review-request period is a Saturday, Sunday, or federal or City holiday, the period shall run until 5:00 p.m. on the next business day.

B. After receiving a request for review, the Director shall notify the requesting party, the building owners who were issued a notice of violation, and any person who requested notice of the review, that a request for review has been received. Additional information to be considered by the Director shall be submitted to the Director no later than 15 days after the written request for a review is mailed.

C. The Director will review the basis for issuing the notice of violation and all information received by the deadline for submitting additional information. The Director may request clarification of information received and conduct a site visit. After the review is completed, the Director may:

1. Sustain the notice of violation,

2. Withdraw the notice of violation,

3. Continue the review to a date certain for receipt of additional information, or

4. Modify or amend the notice of violation.

D. The Director's decision shall become final and not subject to further administrative appeal.

22.920.140 Response to citations

A. A person must respond to a citation in one of the following ways:

1. Pay the amount of the penalty specified in the citation, in which case the record shall show a finding that the person cited committed the violation; or

2. Request in writing a mitigation hearing to explain the circumstances surrounding the commission of the violation and provide a mailing address to which notice of such hearing may be sent; or

3. Request in writing a contested hearing and specify the reason why the cited violation did not occur or why the person cited is not responsible for the violation, and provide a mailing address to which notice of such hearing may be sent.

B. A response to a citation must be received by the Office of the Hearing Examiner no later than fifteen (15) days after the date the citation is served. When the last day of the appeal period so computed is a Saturday, Sunday, or federal or City holiday, the period shall run until five (5:00) p.m. on the next business day.

22.920.150 Failure to respond to citation

If a person fails to respond to a citation within 15 days of service, an order shall be entered by the Hearing Examiner finding that the person cited committed the violation stated in the citation and assessing the penalty specified in the citation.

22.920.160 Citation mitigation hearings

A. Date and Notice. If a person requests a mitigation hearing, the mitigation hearing shall be held within 30 days after a written response to the citation requesting a hearing is received by the Hearing Examiner. Notice of the time, place, and date of the hearing will be sent by first-class mail to the address provided in the request for hearing not less than ten days prior to the hearing date.

B. Procedure at Hearing. The Hearing Examiner shall hold an informal hearing which shall not be governed by the Rules of Evidence. The person cited may present witnesses, however, witnesses may not be compelled to attend. A representative from DPD may also be present and may present additional information; however, attendance by a representative from DPD is not required.

C. Disposition. The Hearing Examiner shall determine whether the person's explanation justifies reduction of the penalty; however, the penalty may not be reduced unless DPD affirms or certifies that the violation has been corrected prior to the mitigation hearing. Factors that may be considered in whether to reduce the penalty include whether the violation was caused by the act, neglect, or abuse of another; or whether correction of the violation was commenced promptly prior to citation but that full compliance was prevented by a condition or circumstance beyond the control of the person cited.

22.920.170 Contested citation hearing

A. Date and Notice. If a person requests a contested hearing, the hearing shall be held within 60 days after the written response to the citation requesting such hearing is received.

B. Hearing. Contested hearings shall be conducted pursuant to the procedures for hearing contested cases contained in Section 3.02.090 and the rules adopted by the Hearing Examiner for hearing contested cases, except as modified by this section. The issues heard at the hearing shall be limited to those that are raised in writing in the response to the citation and that are within the jurisdiction of the Hearing Examiner. The Hearing Examiner may issue subpoenas for the attendance of witnesses and the production of documents.

C. Sufficiency. No citation shall be deemed insufficient for failure to contain a detailed statement of the facts constituting the specific violation which the person cited is alleged to have committed or by reason of defects or imperfections, provided such lack of detail, or defects or imperfections do not prejudice substantial rights of the person cited.

D. Amendment of Citation. A citation may be amended prior to the conclusion of the hearing to conform to the evidence presented if substantial rights of the person cited are not prejudiced.

E. Evidence at Hearing.

1. The certified statement or declaration authorized by RCW 9A.72.085 submitted by an inspector shall be prima facie evidence that a violation occurred and that the person cited is responsible. The certified statement or declaration of the inspector authorized under RCW 9A.72.085 and any other evidence accompanying the report shall be admissible without further evidentiary foundation.

2. Any certifications or declarations authorized under RCW 9A.72.085 shall also be admissible without further evidentiary foundation. The person cited may rebut the DPD evidence and establish that the cited violation(s) did not occur or that the person contesting the citation is not responsible for the violation.

F. Disposition. If the citation is sustained at the hearing, the Hearing Examiner shall enter an order finding that the person cited committed the violation. If the violation remains uncorrected, the Hearing Examiner shall impose the applicable penalty. The Hearing Examiner may reduce the monetary penalty in accordance with the mitigation provisions in Section 22.920.160 if the violation has been corrected. If the Hearing Examiner determines that the violation did not occur, the Hearing Examiner shall enter an order dismissing the citation.

G. Appeal. The Hearing Examiner's decision is the final decision of the City. Any judicial review must be commenced within 21 days of issuance of the Hearing Examiner's decision in accordance with RCW 36.70C.040.

22.920.180. Failure to appear for citation hearing

Failure to appear for a requested hearing will result in an order being entered finding that the person cited committed the violation stated in the citation and assessing the penalty specified in the citation. For good cause shown and upon terms the Hearing Examiner deems just, the Hearing Examiner may set aside an order entered upon a failure to appear.

22.920.190 Collection of citation penalties

If the person cited fails to pay a penalty imposed pursuant to this chapter, the penalty may be referred to a collection agency. The cost to the City for the collection services will be assessed as costs, at the rate agreed to between the City and the collection agency, and added to the penalty. Alternatively, the City may pursue collection in any other manner allowed by law.

22.920.200 Referral to City Attorney for enforcement

If a person fails to correct a violation or pay a penalty, the Director shall refer the matter to the City Attorney's Office for civil enforcement action. Civil actions to enforce a violation shall be brought exclusively in Municipal Court.

22.920.210 Appeal to Superior Court

Because civil enforcement actions under this chapter are brought exclusively in Municipal Court, notices of violations are not subject to judicial review under chapter 36.70C RCW. Instead, final decisions of the Municipal Court may be appealed under the Rules of Appeals of Decisions of Courts of Limited Jurisdiction.

Section 2. The provisions of this ordinance are declared to be separate and severable. If a court of competent jurisdiction, all appeals having been exhausted or all appeal periods having run, finds any provision of this ordinance to be invalid or unenforceable as to any person or circumstance, such offending provision shall, if feasible, be deemed to be modified to be within the limits of enforceability or validity. However, if the offending provision cannot be so modified, it shall be null and void with respect to the particular person or circumstance, and all other provisions of this ordinance in all other respects, and the offending provision with respect to all other persons and all other circumstances, shall remain valid and enforceable.

Section 3. Utilities may establish and require building owners to pay a reasonable charge to recover the costs of uploading a building's utility consumption data to the United States Environmental Protection Agency's Energy Star Portfolio Manager.

Section 4. This ordinance shall take effect and be in force thirty (30) days from and after its approval by the Mayor, but if not approved and returned by the Mayor within ten (10) days after presentation, it shall take effect as provided by Municipal Code Section 1.04.020.

Passed by the City Council the ____ day of ________________, 2010, and signed by me in open session in authentication of its passage this _____ day of ____________ , 2010. _________________________________ President __________of the City Council

Approved by me this ____ day of _____________________, 2010. _________________________________ Michael McGinn, Mayor

Filed by me this ____ day of __________________________, 2010. ____________________________________ City Clerk

January 21, 2010 Version 12T ta