Chapter 19.10 PURPOSE AND GENERAL PROVISIONS

A. The purpose of this title is to designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.

B. This title is to implement the goals, policies, guidelines, and requirements of the Airway Heights Comprehensive Plan and the Growth Management Act (GMA).

C. The City finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the City and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

D. Goals. By limiting development and alteration of critical areas, this title seeks to:

1. Protect members of the public and public resources and facilities from injury, loss of life or property damage due to landslides and steep slope failures, erosion, and seismic events;

2. Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species;

3. Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and

4. Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands and habitat conservation areas.

E. The regulations of this title are intended to protect critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.

F. This title is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this title to make a parcel of property unusable by denying its owner reasonable economic use of the property or to prevent the provision of public facilities and services necessary to support existing development and planned for by the community without decreasing current service levels below minimum standards.

G. The City’s enactment or enforcement of this title shall not be construed for the benefit of any individual person or group of persons other than the general public. (Ord. C-946 § 1, 2020; Ord. C-664 § 3, 2007)

19.10.020 Authority.

As provided herein, the City Planner or his/her designee is given the authority to interpret and apply and the responsibility to enforce this title to accomplish the stated purpose. (Ord. C-946 § 2, 2020; Ord. C-664 § 4, 2007)

19.10.030 Relationship to other regulations.

A. These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the City.

B. Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this title or any existing regulation, easement, covenant, or deed restriction conflicts with this title, that which provides more protection to the critical areas shall apply.

C. These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to this title shall be included in the SEPA review and threshold determination.

D. Compliance with the provisions of this title does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required. The applicant is responsible for complying with these requirements, apart from the process established in this title. (Ord. C-946 § 3, 2020; Ord. C-664 § 5, 2007)

19.10.040 Administrative procedures.

The administrative procedures followed during the critical areas review process shall conform to the standards and requirements of AHMC Title 14, Development Code Administration. This shall include, but not be limited to, timing, appeals, and fees associated with applications covered by this title. (Ord. C-946 § 4, 2020; Ord. C-664 § 6, 2007)

19.10.050 Fees.

A. The City by resolution shall establish fees for filing of a critical area identification form, critical area review processing, and other services provided by the City as required by this title. These fees shall be based on the anticipated sum of direct costs incurred by the City for any individual development or action and may be established as a sliding scale that will recover all of the City costs including the enforcement of these code provisions. Basis for these fees shall include, but not be limited to, the cost of engineering and planning review time, cost of inspection time, costs for administration, and any other special costs attributable to the critical area review process.

B. Unless otherwise indicated in this title, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. C-946 § 5, 2020; Ord. C-664 § 7, 2007)

19.10.060 Severability.

If any clause, sentence, paragraph, section, or part of this title or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. (Ord. C-946 § 6, 2020; Ord. C-664 § 8, 2007)

19.10.070 Administrative rules.

Applicable departments within the City are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this title and to prepare and require the use of such forms as necessary for its administration. (Ord. C-946 § 7, 2020; Ord. C-664 § 9, 2007)

19.10.080 Interpretation.

A. In the interpretation and application of this title, the provisions of this title shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this title, and shall be deemed to neither limit nor repeal any other provisions under state statute.

B. Critical areas regulated by this title include:

1. Wetlands as designated in Chapter 19.20 AHMC, Wetlands;

2. Critical aquifer recharge areas as designated in AHMC 19.30.060 and 19.30.070, Critical aquifer recharge areas; and

3. Fish and wildlife habitat conservation areas as designated in AHMC 19.30.090, Fish and wildlife habitat conservation areas.

4. Frequently Flooded Areas as designated in RCW 36.70A.030. According to the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program, there are no mapped Frequently Flooded Areas within the City of Airway Heights.

5. Geologically Hazardous Areas as designated in RCW 36.70A.030. According to the Washington State Department of Natural Resources, there are no mapped Geologically Hazardous Areas within the City of Airway Heights.

C. All areas within the City meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this title. (Ord. C-946 § 8, 2020; Ord. C-664 § 10, 2007)

19.10.090 Jurisdiction – Critical areas.

A. The City shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the best available science and the provisions herein.

B. Critical areas regulated by this title include:

1. Wetlands as designated in Chapter 19.20 AHMC, Wetlands.

2. Critical aquifer recharge areas as designated in AHMC 19.30.060 and 19.30.070, Critical aquifer recharge areas.

3. Fish and wildlife habitat conservation areas as designated in AHMC 19.30.090, Fish and wildlife habitat conservation areas.

4. Frequently flooded areas as designated in RCW 36.70A.030. According to the 100-year floodplain designations of the Federal Emergency Management Agency and the National Flood Insurance Program, there are no mapped frequently flooded areas within the City of Airway Heights.

5. Geologically hazardous areas as designated in RCW 36.70A.030. According to the Washington State Department of Natural Resources, there are no mapped geologically hazardous areas within the City of Airway Heights.

19.10.100 Protection of critical areas.

Any action taken pursuant to this title shall result in equivalent or greater functions and values of the critical areas associated with the proposed action, as determined by the best available science. All actions and developments shall be designed and constructed in accordance with AHMC 19.10.240, Mitigation sequencing, to avoid, minimize, and restore all adverse impacts. Applicants must first demonstrate an inability to avoid or reduce impacts before restoration and compensation of impacts will be allowed. No activity or use shall be allowed that results in a net loss of the functions or values of critical areas. (Ord. C-946 § 10, 2020; Ord. C-664 § 12, 2007)

19.10.110 Best available science.

A. Best Available Science to Be Consistent with Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.

B. Characteristics of a Valid Scientific Process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government’s regulatory decisions, and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the director shall determine whether the source of the information displays the characteristics of a valid scientific process. Such characteristics are as follows:

1. Peer Review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The proponents of the information have addressed the criticism of the peer reviewers. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed;

2. Methods. The methods used to obtain the information are clearly stated and reproducible. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to ensure their reliability and validity;

3. Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained;

4. Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods;

5. Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge; and

6. References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

C. Nonscientific Information. Nonscientific information may supplement scientific information, but it is not an adequate substitute for valid and available scientific information. Common sources of nonscientific information include the following:

1. Anecdotal Information. One or more observations that are not part of an organized scientific effort (for example, “I saw a grizzly bear in that area while I was hiking”);

2. Nonexpert Opinion. Opinion of a person who is not a qualified scientific expert in a pertinent scientific discipline (for example, “I do not believe there are grizzly bears in that area”); and

3. Hearsay. Information repeated from communication with others (for example, “At a lecture last week, Dr. Smith said there were no grizzly bears in that area”).

D. Absence of Valid Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the City Planner shall:

1. Take a precautionary or a no-risk approach that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and

2. Require application of an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:

a. Address finding for the research component of the adaptive management program;

b. Change course based on the results and interpretation of new information that resolves uncertainties; and

c. Commit to the appropriate timeframe and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas. (Ord. C-946 § 11, 2020; Ord. C-664 § 13, 2007)

19.10.120 Applicability.

A. The provisions of this title shall apply to all lands, all land uses and development activity, and all structures and facilities in the City, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the City. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this title.

B. The City shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of this title, including, but not limited to, the following:

1. Building permit, except as provided in the section below for minor development;

2. Clearing and grading;

3. Conditional use permit;

4. Subdivision and short plat;

5. Planned unit development;

6. Binding site plan;

7. Zoning variance;

8. Civil plans; or

9. Any other adopted permit or required approval not expressly exempted by this title.

C. Approval of a permit or development proposal pursuant to the provisions of this title does not discharge the obligation of the applicant to comply with the provisions of this title. (Ord. C-946 § 12, 2020; Ord. C-664 § 14, 2007)

19.10.130 Exemptions.

A. Exemption Request and Review Process. The proponent of the activity may submit a written request for exemption to the City Planner that describes the activity and states the exemption listed in this section that applies.

The City Planner shall review the exemption request to verify that it complies with this title and approve or deny the exemption. If the exemption is approved, it shall be placed on file with the Planning Department. If the exemption is denied, the proponent may continue in the review process and shall be subject to the requirements of this title.

B. Exempt Activities and Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this title does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this title; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

1. Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this title.

Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the City within one working day following commencement of the emergency activity. Within 30 days, the City Planner shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the City Planner determines that the action taken, or any part of the action taken, was beyond the scope of an allowed emergency action, then enforcement provisions of AHMC 19.10.340, Unauthorized critical area alterations and enforcement, shall apply.

After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration and/or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical areas report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical areas report, and mitigation plan shall be reviewed by the City in accordance with the review procedures contained herein. Restoration and/or mitigation activities must be initiated within one year of the date of the emergency, and completed in a timely manner;

2. Operation, Maintenance, or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species;

3. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching;

4. Development of single-family and duplex lots legally created prior to the effective date of the ordinance codified in this chapter, on or before September 1, 2020, consistent with the reasonable use provisions of these regulations, or single-family and duplex lots vested under state law;

5. Other minor developments pursuant to this title. (Ord. C-946 § 13, 2020; Ord. C-664 § 15, 2007)

19.10.140 Exception – Public agency and utility.

A. If the application of this title would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a public agency and utility exception shall be made to the City and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The City Planner shall prepare a recommendation to the Hearing Examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with public agency and utility exception review criteria in subsection (D) of this section.

C. Hearing Examiner Review. The Hearing Examiner shall review the application and City Planner’s recommendation and conduct a public hearing pursuant to the provisions of AHMC Title 14. The Hearing Examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the public agency and utility exception criteria in subsection (D) of this section.

D. Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions follow:

1. There is no other practical alternative to the proposed development with less impact on the critical areas;

2. The application of this title would unreasonably restrict the ability to provide utility services to the public;

3. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

4. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science; and

5. The proposal is consistent with other applicable regulations and standards.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. C-946 § 14, 2020; Ord. C-664 § 16, 2007)

19.10.150 Exception – Reasonable use.

A. If the application of this title would deny all reasonable economic use of the subject property, the City shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the City and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW) (SEPA documents). The City Planner shall prepare a recommendation to the Hearing Examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection (D) of this section.

C. Hearing Examiner Review. The Hearing Examiner shall review the application and conduct a public hearing pursuant to the provisions of AHMC Title 14. The Hearing Examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the reasonable use exception review criteria in subsection (D) of this section.

D. Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions follow; one or more may apply:

1. The application of this title would deny all reasonable economic use of the property;

2. No other reasonable economic use of the property has less impact on the critical area;

3. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;

4. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of the ordinance codified in this title;

5. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

6. The proposal will result in no net loss of critical area functions and values consistent with the best available science; or

7. The proposal is consistent with other applicable regulations and standards.

19.10.160 Allowed activities.

A. Critical Areas Report. Activities allowed under this title shall have been reviewed and permitted or approved by the City or other agency with jurisdiction, but do not require submittal of a separate critical area identification form or critical areas report, unless such submittal was required previously for the underlying permit. The City Planner may apply conditions to the underlying permit or approval to ensure that the allowed activity is consistent with the provisions of this title to protect critical areas.

B. Required Use of Best Management Practices. All allowed activities shall be conducted using best management practices, resulting in the least amount of impact to the critical areas. Best management practices shall be used for tree and vegetation protection, construction management, erosion and sedimentation control, water quality protection, and regulation of chemical applications. The City shall observe the use of best management practices to ensure that the activity does not result in degradation to the critical area. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense.

C. Allowed Activities. The following activities are allowed:

1. Permit Requests Subsequent to Previous Critical Areas Review. Development permits and approvals that involve both discretionary land use approvals (such as subdivisions, rezones, or conditional use permits) and construction approvals (such as building permits) if all of the following conditions have been met:

a. The provisions of this title have been previously addressed as part of another approval;

b. There have been no material changes in the potential impact to the critical area or buffer since the prior review;

c. There is no new information available that is applicable to any critical areas review of the site or particular critical area;

d. The permit or approval has not expired or, if no expiration date, no more than five years have elapsed since the issuance of that permit or approval; and

e. Compliance with any standards or conditions placed upon the prior permit or approval has been achieved or secured;

2. Modification to Existing Structures. Structural modification of, addition to, or replacement of an existing legally constructed structure that does not further alter or increase the impact to the critical area or buffer and there is no increased risk to life or property as a result of the proposed modification or replacement; provided, that restoration of structures substantially damaged by fire or act of nature must be initiated within one year of the date of such damage, as evidenced by the issuance of a valid building permit, and diligently pursued to completion;

3. Activities within the Improved Right-of-Way. Replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a City-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased storm water; subject to the following:

a. Critical area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and

b. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance;

4. Minor Utility Projects. Utility projects which have minor or short-duration impacts to critical areas, as determined by the City Planner in accordance with the criteria below, and which do not significantly impact the function or values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water. Such allowed minor utility projects shall meet the following criteria:

a. There is no practical alternative to the proposed activity with less impact on critical areas;

b. The activity involves the placement of a utility pole, street sign, anchor, or vault or other small component of a utility facility; and

c. The activity involves disturbance of an area less than 75 square feet;

5. Public and Private Pedestrian Trails. Public and private pedestrian trails, except in wetlands, fish and wildlife habitat conservation areas, or their buffers, subject to the following:

a. The trail surface shall meet all other requirements including water quality standards set forth in Chapter 3 of the Airway Heights Public Works Standards Manual;

b. Critical area and/or buffer widths shall be increased, where possible, equal to the width of the trail corridor, including disturbed areas; and

c. Trails proposed to be located in landslide or erosion hazard areas shall be constructed in a manner that does not increase the risk of landslide or erosion and in accordance with an approved geotechnical report;

6. Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the director:

a. The removal of the following invasive and noxious weeds and vegetation with hand labor and light equipment;

b. The removal of trees from critical areas and buffers that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property; provided, that:

i. The applicant submits a report from a certified arborist, registered landscape architect, or professional forester that documents the hazard and provides a replanting schedule for the replacement trees;

ii. Tree cutting shall be limited to pruning and crown thinning, unless otherwise justified by a qualified professional. Where pruning or crown thinning is not sufficient to address the hazard, trees should be removed or converted to wildlife snags;

iii. All vegetation cut (tree stems, branches, etc.) shall be left within the critical area or buffer unless removal is warranted due to the potential for disease or pest transmittal to other healthy vegetation;

iv. The landowner shall replace any trees that are removed with new trees at a ratio of two replacement trees for each tree removed (2:1) within one year in accordance with an approved restoration plan. Replacement trees may be planted at a different nearby location if it can be determined that planting in the same location would create a new hazard or potentially damage the critical area. Replacement trees shall be species that are native and indigenous to the site and a minimum of one inch in diameter at breast height (dbh) for deciduous trees and a minimum of six feet in height for evergreen trees, as measured from the top of the root ball;

v. If a tree to be removed provides critical habitat, such as an eagle perch, a qualified wildlife biologist shall be consulted to determine timing and methods for removal that will minimize impacts; and

vi. Hazard trees determined to pose an imminent threat or danger to public health or safety, to public or private property, or of serious environmental degradation may be removed or pruned by the landowner prior to receiving written approval from the City; provided, that within 14 days following such action, the landowner shall submit a restoration plan that demonstrates compliance with the provisions of this title.

c. Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW, and Spokane County Code Chapter 3.19; provided, that the removed vegetation shall be replaced in kind or with similar native species within one year in accordance with an approved restoration plan; and

d. Unless otherwise provided, or as a necessary part of an approved alteration, removal of any vegetation or woody debris from a habitat conservation area or wetland shall be prohibited;

7. Chemical Applications. The application of herbicides, pesticides, organic or mineral-derived fertilizers, or other hazardous substances, if necessary, as approved by the City; provided, that their use shall be restricted in accordance with State Department of Fish and Wildlife Management recommendations and the regulations of the State Department of Agriculture and the U.S. Environmental Protection Agency;

8. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new roads or significant amounts of excavation. In every case, impacts to the critical area shall be minimized and disturbed areas shall be immediately restored; and

9. Navigational Aids and Boundary Markers. Construction or modification of navigational aids and boundary markers. (Ord. C-946 § 16, 2020; Ord. C-664 § 18, 2007)

19.10.170 Critical area project review process – General requirements.

A. As part of this review, the City shall:

1. Verify the information submitted by the applicant;

2. Evaluate the project area and vicinity for critical areas;

3. Determine whether the proposed project is likely to impact the functions or values of critical areas; and

4. Determine if the proposed project adequately addresses the impacts and avoids impacts to the critical area associated with the project.

B. If the proposed project is within, adjacent to, or is likely to impact a critical area, the City shall:

1. Require a critical areas report from the applicant that has been prepared by a qualified professional;

2. Review and evaluate the critical areas report;

3. Determine whether the development proposal conforms to the purposes and performance standards of this title, including the criteria in AHMC 19.10.280, Review criteria;

4. Assess the potential impacts to the critical area and determine if they can be avoided or minimized; and

5. Determine if any mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this title. (Ord. C-946 § 17, 2020; Ord. C-664 § 19, 2007)

19.10.180 Critical area pre-application consultation.

Any person preparing to submit an application for development or use of land that may be regulated by the provisions of this title shall conduct a consultation meeting with the City Planner prior to submitting an application for development or other approval. At this meeting, the City Planner shall discuss the requirements of this title; outline the review process; and work with the activity proponent to identify any potential concerns that might arise during the review process, in addition to discussing other permit procedures and requirements. (Ord. C-946 § 18, 2020; Ord. C-664 § 20, 2007)

19.10.190 Critical area identification form.

A. Submittal. Prior to the City’s consideration of any proposed activity not found to be exempt under AHMC 19.10.130, Exemptions, or allowed pursuant to AHMC 19.10.160, Allowed activities, the applicant shall submit to the department a complete critical area identification form on forms provided by the City.

B. Site Inspection. Upon receipt of a project application and a critical area identification form, the City Planner shall conduct a site inspection to review critical area conditions on site. The City Planner shall notify the property owner of the inspection prior to the site visit. Reasonable access to the site shall be provided by the property owner for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period.

C. Critical Area Identification Form Review Process. The Planning Director or his/her designee shall review the critical area identification form, conduct a site inspection, review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal and if a more detailed critical areas report shall be submitted.

1. Decision Indicators. The City Planner may use the following indicators to assist in determining the need for a critical areas report:

a. Information and scientific opinions from appropriate agencies, including but not limited to the Departments of Fish and Wildlife, Natural Resources, and Ecology;

b. Documentation, from a scientific or other reasonable source, of the possible presence of a critical area; or

c. A finding by a qualified professional or a reasonable belief by the City Planner that a critical area may exist on or adjacent to the site of the proposed activity.

D. Decision on Identification Form.

1. No Critical Areas Present. If after a site visit the City Planner’s analysis indicates that the project area is not within or adjacent to a critical area or buffer and that the proposed activity is unlikely to degrade the functions or values of a critical area, then the City Planner shall rule that the critical areas review is complete and note on the identification form the reasons that no further review is required. A summary of this information shall be included in any staff report or decision on the underlying permit.

2. Critical Areas Present, But No Impact – Waiver. If the City Planner determines that there are critical areas within or adjacent to the project area, but that the best available science shows that the proposed activity is unlikely to degrade the functions or values of the critical area, the City Planner may waive the requirement for a critical areas report. A waiver may be granted if there is substantial evidence that all of the following requirements will be met:

a. There will be no alteration of the critical area or buffer;

b. The development proposal will not impact the critical area in a manner contrary to the purpose, intent, and requirements of this title; and

c. The proposal is consistent with other applicable regulations and standards.

A summary of this analysis and the findings shall be included in any staff report or decision on the underlying permit.

3. Critical Areas May Be Affected by Proposal. If the City Planner determines that a critical area or areas may be affected by the proposal, then the City Planner shall notify the applicant that a critical areas report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report.

E. City Planner’s Determination Subject to Reconsideration. A determination regarding the apparent absence of one or more critical areas by the City Planner is not an expert certification regarding the presence of critical areas. The determination is subject to possible reconsideration and reopening if new information is received.

If the applicant wants greater assurance of the accuracy of the critical areas review determination, the applicant may choose to hire a qualified professional to provide such assurances. (Ord. C-946 § 19, 2020; Ord. C-664 § 21, 2007)

19.10.200 Public notice of initial determination.

The City shall notify the public of proposals in accordance with AHMC Title 14, if public notice is required by the underlying development application under Chapter 14.04 AHMC.

A. If the City Planner determines that no critical areas report is necessary, he or she shall state the reasons for this determination in the notice of application issued by the City for the proposal. If the City Planner determines that there are critical areas on the site that the proposed project is unlikely to impact and the project meets the requirements for and has been granted a waiver from the requirement to complete a critical areas report, a summary of the analysis and findings for this decision shall be stated in the notice of application for the proposal.

B. If the City Planner determines that critical areas may be affected by the proposal and a critical areas report is required, public notice of the application shall include a description of the critical area that might be affected and state that a critical areas report(s) is required. (Ord. C-946 § 20, 2020; Ord. C-664 § 22, 2007)

19.10.210 Critical areas report – Requirements.

A. Preparation by Qualified Professional. If required by the City Planner in accordance with AHMC 19.10.190(D)(3), the applicant shall submit a critical areas report prepared by a qualified professional as defined herein.

B. Incorporating of Best Available Science. The critical areas report shall use scientifically valid methods and studies in the analysis of critical areas data and field reconnaissance and reference the source of science used. The critical areas report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this title.

C. Minimum Report Contents. At a minimum, the report shall contain the following:

1. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested;

2. A copy of the site plan for the development proposal, including:

a. A map to scale depicting critical areas, buffers, the development proposal, and any areas to be cleared; and

b. A description of the proposed storm water management plan for the development and consideration of impacts to drainage alterations;

3. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site;

4. Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area;

5. A statement specifying the accuracy of the report, and all assumptions made and relied upon;

6. An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development;

7. An analysis of site development alternatives including a no-development alternative;

8. A description of reasonable efforts made to apply mitigation sequencing pursuant to AHMC 19.10.240, Mitigation sequencing, to avoid, minimize, and mitigate impacts to critical areas;

9. Plans for adequate mitigation, as needed, to offset any impacts, in accordance with AHMC 19.10.250, Mitigation plan requirements, including, but not limited to:

a. The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

b. The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment;

10. A discussion of the performance standards applicable to the critical area and proposed activity;

11. Financial guarantees to ensure compliance; and

12. Any additional information required for the critical area as specified in the corresponding chapter.

D. Unless otherwise provided, a critical areas report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the City Planner. (Ord. C-946 § 21, 2020; Ord. C-664 § 23, 2007)

19.10.220 Critical areas report – Modifications to requirements.

A. Limitations to Study Area. The City Planner may limit the required geographic area of the critical areas report as appropriate if:

1. The applicant, with assistance from the City, cannot obtain permission to access properties adjacent to the project area; or

2. The proposed activity will affect only a limited part of the subject site.

B. Modifications to Required Contents. The applicant may consult with the City Planner prior to or during preparation of the critical areas report to obtain City approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

C. Additional Information Requirements. The City Planner may require additional information to be included in the critical areas report when determined to be necessary to the review of the proposed activity in accordance with this title. Additional information that may be required includes, but is not limited to:

1. Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site;

2. Grading and drainage plans; and

3. Information specific to the type, location, and nature of the critical area. (Ord. C-946 § 22, 2020; Ord. C-664 § 24, 2007)

19.10.230 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated using the best available science in accordance with an approved critical areas report and SEPA documents, so as to result in no net loss of critical area functions and values.

B. Mitigation shall be in kind and on site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area.

C. Mitigation shall not be implemented until after City approval of a critical areas report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical areas report. (Ord. C-946 § 23, 2020; Ord. C-664 § 25, 2007)

19.10.240 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided or minimized in the following sequential order of preference:

A. Avoiding the impact altogether by not taking a certain action or parts of an action;

B. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

C. Rectifying the impact to wetlands, critical aquifer recharge areas and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

D. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineering or other methods;

E. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

F. Compensating for the impact to wetlands by replacing, enhancing, or providing substitute resources or environment. Compensation for impacts as an alternative to avoidance, minimizing and rectifying impacts is not permitted for critical aquifer recharge areas or habitat conservation areas; and

G. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures. (Ord. C-946 § 24, 2020; Ord. C-664 § 26, 2007)

19.10.250 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by City a mitigation plan as part of the critical areas report. The mitigation plan shall include:

A. Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the compensation proposed and including:

1. A description of the anticipated impacts to the critical areas and the mitigating actions proposed and the purposes of the compensation measures, including the site selection criteria, identification of compensation goals, identification of resource functions, and dates for beginning and completion of site compensation construction activities. The goals and objectives shall be related to the functions and values of the impacted critical area;

2. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

3. An analysis of the likelihood of success of the compensation project.

B. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this title have been met.

C. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

1. The proposed construction sequence, timing, and duration;

2. Grading and excavation details;

3. Erosion and sediment control features;

4. A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

5. Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, and topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

D. Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, and seven after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years.

E. Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

F. Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with AHMC 19.10.400, Bonds to ensure mitigation, maintenance, and monitoring. (Ord. C-946 § 25, 2020; Ord. C-664 § 27, 2007)

19.10.260 Innovative mitigation.

A. The City may encourage, facilitate, and approve innovative mitigation projects that are based on the best available science. Advance mitigation or mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section, wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

1. Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

2. The group demonstrates the organizational and fiscal capability to act cooperatively;

3. The group demonstrates that long-term management of the habitat area will be provided; and

4. There is a clear potential for success of the proposed mitigation at the identified mitigation site.

B. Conducting mitigation as part of a cooperative process does not reduce or eliminate the required replacement ratios. (Ord. C-946 § 26, 2020; Ord. C-664 § 28, 2007)

19.10.270 Determination process.

The City Planner shall make a determination as to whether the proposed activity and mitigation, if any, is consistent with the provisions of this title. The City Planner’s determination shall be based on the criteria of AHMC 19.10.280, Review criteria. (Ord. C-946 § 27, 2020; Ord. C-664 § 29, 2007)

19.10.280 Review criteria.

A. Any alteration to a critical area, unless otherwise provided for in this title, shall be reviewed and approved, approved with conditions, or denied based on the proposal’s ability to comply with all of the following criteria:

1. The proposal minimizes the impact on critical areas in accordance with AHMC 19.10.240, Mitigation sequencing;

2. The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site;

3. The proposal is consistent with the general purposes of this title and the public interest;

4. Any alterations permitted to the critical area are mitigated in accordance with AHMC 19.10.230, Mitigation requirements;

5. The proposal protects the critical area functions and values consistent with the best available science and results in no net loss of critical area functions and values; and

6. The proposal is consistent with other applicable regulations and standards.

B. The City may condition the proposed activity as necessary to mitigate impacts to critical areas and to conform to the standards required by this title.

C. Except as provided for by this title, any project that cannot adequately mitigate its impacts to critical areas in the sequencing order of preferences in AHMC 19.10.240 shall be denied. (Ord. C-946 § 28, 2020; Ord. C-664 § 30, 2007)

19.10.290 Favorable determination.

If the City Planner determines that the proposed activity meets the criteria in AHMC 19.10.280, Review criteria, and complies with the applicable provisions of this title, the City Planner shall prepare a written notice of determination and identify any required conditions of approval. The notice of determination and conditions of approval shall be included in the project file and be considered in the next phase of the City’s review of the proposed activity in accordance with any other applicable codes or regulations.

Any conditions of approval included in a notice of determination shall be attached to the underlying permit or approval. Any subsequent changes to the conditions of approval shall void the previous determination pending re-review of the proposal and conditions of approval by the City Planner.

A favorable determination should not be construed as endorsement or approval of any underlying permit or approval. (Ord. C-946 § 29, 2020; Ord. C-664 § 31, 2007)

19.10.300 Unfavorable determination.

If the City Planner determines that a proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the criteria in AHMC 19.10.280, Review criteria, and the provisions of this title, the City Planner shall prepare written notice of the determination that includes findings of noncompliance.

No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not adequately mitigate its impacts on the critical areas and/or does not comply with the provisions of this title.

Following notice of determination that the proposed activity does not meet the review criteria and/or does not comply with the applicable provisions of this title, the applicant may request consideration of a revised critical areas report. If the revision is found to be substantial and relevant to the critical areas review, the City Planner may reopen the critical areas review and make a new determination based on the revised report. (Ord. C-946 § 30, 2020; Ord. C-664 § 32, 2007)

19.10.310 Completion of the critical areas review.

The City’s determination regarding critical areas pursuant to this title shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved. (Ord. C-946 § 31, 2020; Ord. C-664 § 33, 2007)

19.10.320 Appeals.

A. Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this title may be appealed according to, and as part of, the appeal procedure for the permit or approval involved.

B. Any interpretation or decision made by the Director in the administration of this title is final and conclusive unless appealed to the Airway Heights Hearing Examiner.

1. Any person aggrieved by a decision of the Director may, within 30 days following the date of the department’s written decision, submit an appeal of the Director’s decision. The burden of proof in any appeal is the responsibility of the appellant. Any appeal shall be in written form and filed with the department together with a fee as established by resolution of the board. Any appeal shall as a minimum contain the following information:

a. An explanation and description of how the appellant is aggrieved;

b. A statement describing why the appellant believes the decision of the Director is in error and the specific relief sought;

c. A statement showing why upholding an appeal will not be detrimental to public health, safety or welfare, or significantly negate the functions of a critical area, the goals, objectives and policies of the Growth Management Act, and the purposes of this chapter;

d. A statement describing any mitigating measures the appellant proposes to assure that the function of the critical area will not be irrevocably jeopardized in the event the appeal is successful.

e. Payment of applicable fees for the appeal, notices and the Hearing Examiner.

2. Upon the filing of an appeal with appropriate fee, the Director shall set forth the time and place for a public hearing before the Hearing Examiner on the matter. If the appeal is filed 20 days or more before the Hearing Examiner’s regularly scheduled monthly meeting, he or she shall hear the appeal at that meeting. For appeals filed within 19 days of the regularly scheduled monthly meeting, the Hearing Examiner shall hear the appeal the subsequent month.

3. Notice of the time, date and place of the hearing shall be sent to the appellant and the permittee by first class mail prior to the public hearing. Legal notice of the hearing shall be published in a newspaper of general circulation and the subject property shall be posted with the notice not less than 10 days prior to the public hearing.

4. Within 10 days after the public hearing, the Hearing Examiner shall issue a written decision, including the findings of fact on which his or her decision is based. Such written decision shall be available to the appellant and the public upon request.

5. The Director shall transmit the application and appeal information to the Hearing Examiner at least five days prior to the public hearing. The Director may provide additional information if the appeal contains material or facts not available prior to the Director’s decision.

6. The Hearing Examiner shall determine if the appeal should be upheld, upheld with conditions, or denied. Any person aggrieved by the decision of the Hearing Examiner regarding a permit pursuant to this title may request relief from Spokane County Superior Court. (Ord. C-946 § 32, 2020; Ord. C-664 §§ 34, 62, 2007)

19.10.330 Variances.

A. Variances from the standards of this title may be authorized by the City in accordance with the procedures set forth in AHMC 17.03.090. The Hearing Examiner shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

B. Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

1. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land and that are not applicable to other lands in the same district;

2. The special conditions and circumstances do not result from the actions of the applicant;

3. A literal interpretation of the provisions of this title would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this title, and the variance requested is the minimum necessary to provide the applicant with such rights;

4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings under similar circumstances;

5. The granting of the variance is consistent with the general purpose and intent of this title, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

6. The granting of the variance is consistent with the general purpose and intent of the City of Airway Heights Comprehensive Plan and adopted development regulations.

C. Conditions May Be Required. In granting any variance, the City may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this title.

D. Time Limit. The City shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

E. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. C-946 § 33, 2020; Ord. C-664 § 35, 2007)

19.10.340 Unauthorized critical area alterations and enforcement.

A. When a critical area or its buffer has been altered in violation of this title, all ongoing development work shall stop, and the critical area shall be restored. The City shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this title.

B. Requirement for Restoration Plan. All development work shall remain stopped until a restoration plan is prepared and approved by the City. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection (C) of this section. The City Planner shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum. Performance Standards for Restoration.

1. For alterations to critical aquifer recharge areas, wetlands, and habitat conservation areas, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The historic structural and functional values shall be restored, including water quality and habitat functions;

b. The historic soil types and configuration shall be replicated;

c. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities. The historic functions and values should be replicated at the location of the alteration; and

d. Information demonstrating compliance with the requirements in AHMC 19.10.250, Mitigation plan requirements, shall be submitted to the City Planner.

2. For alterations to geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

D. Site Investigations. The City Planner is authorized to make site inspections and take such actions as are necessary to enforce this title. The City Planner shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this title shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this title is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this title shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The City may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this title. The civil penalty shall be assessed at a maximum rate of $25.00 per day per violation. (Ord. C-946 § 34, 2020; Ord. C-664 § 36, 2007)

19.10.350 Critical area markers and signs.

A. The boundary at the outer edge of critical area tracts and easements shall be delineated with permanent survey stakes, using iron or concrete markers as established by local survey standards.

B. The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

C. These provisions may be modified by the City Planner as necessary to ensure protection of sensitive features or wildlife needs.

D. These provisions do not apply to areas designated as critical aquifer recharge areas. (Ord. C-946 § 35, 2020; Ord. C-664 § 37, 2007)

19.10.360 Notice on title.

A. In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county auditor according to the direction of the City. The notice shall state the presence of the critical area or buffer on the property, the application of this title to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.

B. This notice on title shall not be required for a development proposal by a public agency or public or private utility:

1. Within a recorded easement or right-of-way;

2. Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

3. On the site of a permanent public facility.

C. The applicant shall submit proof that the notice has been filed for public record before the City approves any site development or construction for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. (Ord. C-946 § 36, 2020; Ord. C-664 § 38, 2007)

19.10.380 Critical area tracts.

A. Critical area tracts shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below that total 5,000 or more square feet:

1. All wetlands and buffers;

2. All habitat conservation areas; and

3. All other lands to be protected from alterations as conditioned by project approval.

B. Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C. Critical area tracts shall be designated on the face of the plat or recorded drawing in a format approved by the City Attorney. The designation shall include the following restriction:

1. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat; and

2. The right of the City to enforce the terms of the restriction.

D. The City may require that any required critical area tract be dedicated to the City, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowners’ association or other legal entity (such as a land trust, which ensures the ownership, maintenance, and protection of the tract). (Ord. C-946 § 37, 2020; Ord. C-664 § 39, 2007)

19.10.390 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 15 feet from the edges of all critical area buffers, or from the edges of all critical areas if no buffers are required. Landscaping is not permitted in buffer areas, unless provided for in mitigation provisions under AHMC 19.20.050. (Ord. C-946 § 38, 2020; Ord. C-664 § 40, 2007)

19.10.400 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to the City final permit approval, such as final plat approval or final building inspection, the City shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the City. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the City to ensure mitigation is fully functional.

B. The bond shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that is at risk, whichever is greater.

C. The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the City Attorney.

D. Bonds or other security authorized by this section shall remain in effect until the City determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the City for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function and may be held for longer periods when necessary.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

F. Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

G. Any failure to satisfy critical area requirements established by law or condition, including, but not limited to, the failure to provide a monitoring report within 30 days after it is due or comply with other provisions of an approved mitigation plan shall constitute a default, and the City may demand payment of any financial guarantees or require other action authorized by the Airway Heights Municipal Code or any other law.

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. C-946 § 39, 2020; Ord. C-664 § 41, 2007)

19.10.410 Critical area inspections.

Reasonable access to the site shall be provided to the City, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. (Ord. C-946 § 40, 2020; Ord. C-664 § 42, 2007)