Chapter 22D.010
MITIGATION OF IMPACTS RESULTING FROM DEVELOPMENT PROPOSALS
Sections:
22D.010.020 Projects subject to mitigation requirements.
22D.010.030 Mitigation requirements identified.
22D.010.040 Mitigation of adverse impacts.
22D.010.050 Recovery contracts.
22D.010.060 Credit against mitigation assessment for dedication of land.
22D.010.070 Credits for public work on regional improvements.
22D.010.080 Use of mitigation assessments.
22D.010.090 Appeals to the city council.
22D.010.010 Policy.
It is the policy of the city of Marysville to implement the State Environmental Policy Act, Chapter 43.21C RCW, and the State Subdivision Code, Chapter 58.17 RCW, by requiring the proponent of any subdivision, rezone, project or development to mitigate any and all impacts directly resulting from the same which adversely affect the environment for the public health, safety or welfare. Mitigation measures, including dedication of property to public use and voluntary payments into the city’s growth management fund, shall be a material consideration in the approval, modification or denial of all such proposals. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.020 Projects subject to mitigation requirements.
All subdivisions, rezones, projects and developments (hereinafter collectively referred to as “projects”) which are found by the responsible official of the city of Marysville, the hearing examiner or the city council to directly result in adverse environmental impacts or to adversely affect the public health, safety or welfare (hereinafter referred to as “adverse impacts”) shall be required to mitigate such impacts as a condition of receiving city approval to proceed with the project; provided, that mitigation requirements shall not apply to categories of projects which are exempt under WAC 197-10-170, except for short plats, duplexes and triplexes, the exemption for which is repealed for the purposes of this chapter. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.030 Mitigation requirements identified.
The city legislative or administrative authority issuing the project approval shall determine and identify those adverse impacts which will directly result from the proposed project, and shall determine and identify required mitigation of the same. Such mitigation may include dedication of land or easements within the proposed project. It must be established that each mitigation requirement is reasonably necessary as a direct result of the project. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.040 Mitigation of adverse impacts.
The city legislative or administrative authority issuing the project approval shall condition the same upon satisfactory mitigation of all identified adverse impacts by one of the following alternative methods:
(1) The proponent may modify the project so as to avoid creating adverse impacts; or
(2) The proponent may undertake, at its own cost, to mitigate all identified adverse impacts on a time schedule agreed upon with the city legislative or administrative authority issuing the project approval; or
(3) If the city determines that the identified adverse impacts would best be mitigated on a regional basis, the city shall prepare a cost estimate for the regional capital improvements, and shall define a benefit area for the same. The city and the proponent shall negotiate the fair share of said total cost to be allocated to the proponent’s project, being guided by assessment methods allowed in Chapter 35.44 RCW. A proponent may enter into an agreement with the city to pay the mitigation assessment for the project on a mutually agreed-upon time schedule or may dedicate land or do public works as a credit against the mitigation assessment, as provided below.
If such mitigation is not deemed possible, practical, or in the public interest, the proposed project may be denied. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.050 Recovery contracts.
At the option of the city council, a proponent may be allowed to enter into a recovery contract with the city providing for partial reimbursement to the proponent, or its assignee, of costs of regional capital improvements required by this chapter, including design, grading, paving and installation of streets, curbs, gutters, storm drainage, sidewalks, street lighting, traffic controls and other similar improvements required by the street standards of the city. Such contracts shall be governed by the following provisions:
(1) Within 30 days after the improvements are accepted by the city and a bill of sale/warranty is filed with respect to the same, the proponent of the recovery contract shall submit a request for the same, using a form supplied by the city, together with supporting documentation showing all costs incurred in the project.
(2) An assessment area shall be formulated based upon a determination by the city as to which parcels of real estate adjacent to the street improvements would be required by this chapter to make similar improvements at the time development is proposed for said parcels.
(3) The reimbursement share of all property owners in the assessment area shall be a pro rata share of construction and contract administration costs of the improvement project. The city shall determine the reimbursement share by using a method of cost apportionment which is based upon the benefit to each property owner from the project. There shall be no reimbursement to the proponent for the share which is allocated to its property, nor for any contributions paid by the city.
(4) A preliminary determination of area boundaries and assessments, along with a description of the property owner’s rights and options, shall be forwarded by certified mail to the property owners of record within the proposed assessment area. If any property owner requests a hearing in writing within 20 days of the mailing of the preliminary determination, a hearing shall be held before the city council, notice of which shall be given to all affected property owners. The city council’s ruling shall be determinative and final.
(5) The contract, upon approval by the city council, shall be recorded in the records of the Snohomish County auditor within 30 days of such approval. The recorded contract shall constitute a lien against all real property within the assessment area which did not contribute to the original cost of the project improvements.
(6) If, within a period of 15 years from the date the contract was recorded, any property within the assessment area applies for development rights which implement the requirements of this chapter, the lien for payment of said property’s proportionate share shall become immediately due and payable to the city as a condition of receiving development approval.
(7) All assessments collected by the city pursuant to a recovery contract, less the city’s administrative charge, shall be paid to the original proponent or its personal representative, successors or assigns within 30 days after receipt by the city. The city’s administrative charge for each collection is set forth in MMC 14.07.005. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.060 Credit against mitigation assessment for dedication of land.
At the option of the city council, a proponent may be allowed or required to dedicate land, or cause land to be dedicated, to the city for public purposes. In such a case, the proponent shall be granted a credit against any part or all of the mitigation assessment referred to in MMC 22D.010.040, to the extent of the appraised value of the land which is dedicated. The implementation of this credit shall be in accordance with the following criteria:
(1) Dedication of land shall only be required or accepted by the city upon a finding that it is reasonably necessary as a direct result of the proposed project, and will tend to mitigate adverse impacts of the project.
(2) No credit shall be given for dedication of land for public road right-of-way located on the subject property or which abuts the same or otherwise provides direct access to the subject property.
(3) In evaluating a specific parcel of land for dedication, the city shall consider the following factors:
(a) Compatibility of the land with the city’s then current comprehensive plan for public facilities;
(b) Topography, geology, access and location of the land, as the same relate to its effective development and use for public purposes;
(c) The proximity of the land to pre-existing property under public ownership;
(d) The proximity of the land to existing and foreseeable population concentrations;
(e) The possibility of combining the land with abutting properties which are presently under public ownership or are anticipated for future acquisition;
(f) The environmental and economic impact of developing and using the land for public purposes;
(g) The fair market value of the land;
(h) The extent, if any, to which dedication of the land to the public would unreasonably interfere with the private development and use of abutting properties.
(4) If either the city or the proponent desires to pursue the option of land dedication, they shall, by mutual agreement, retain the services of a qualified appraiser who shall investigate and report to the parties the appraised value of the subject land. The cost of the appraisal shall be borne equally by the city and the proponent. Within 30 days from the date of the appraisal report, the city shall notify the proponent of its decision whether the dedication will be required/allowed as a condition of project approval.
(5) In the event the city requires/allows dedication, the owner of the property shall deed or dedicate the same to the city with a warranty of clear title, as a condition of receiving final approval of the project.
(6) The proponent shall be given a credit against the mitigation assessment referred to in MMC 22D.010.040 which is equal to the appraised value of the dedicated land.
(7) The city shall have complete discretion with respect to the use of the dedicated land, and the schedule for the development of the same; provided, that any such use or development shall be consistent with all applicable laws of the city, state and federal governments. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.070 Credits for public work on regional improvements.
In any case where a proponent requests permission to develop, at its own cost, a regional improvement to the public street system, park and recreational facilities, storm drainage and flood control facilities, or public safety facilities, which are located either on the subject property or off site and which would contribute to mitigation of identified adverse impacts resulting from the project, the city may, in its sole discretion, grant permission to the proponent to perform such public work, and the value of the same shall be credited against the mitigation assessment for the project. The value of such work shall be determined by the city engineer and shall be consistent with the probable cost of such work if it were put out for public bid. In authorizing such public work, and in granting a credit against the mitigation assessment, the city council must find that said work is in the public interest and meets the following standards:
(1) The public work must be a regional improvement which is provided for and anticipated in the city’s comprehensive plan; no credit shall be allowed for construction of local access streets within the subject property or which abut the same or otherwise provide direct access to the subject property.
(2) The public work must be directly related to the mitigation of impacts created or contributed to by the project.
(3) The timing for the development of the public work must be consistent with the long-range scheduling for such development by the city.
(4) The proponent or its contractor must demonstrate its financial and professional ability to perform the project in a workmanlike manner and in compliance with all specifications for the project and all governmental regulations relating thereto.
(5) The proponent or its contractor shall be required to comply with all bonding and warranty requirements otherwise applicable to public works.
(6) The proponent or its contractor shall be required to deposit with the city cash in a sum equal to the public work contract retainage requirement specified in RCW 60.28.010. Said deposit shall be subject to all provisions contained in Chapter 60.28 RCW.
(7) The proponent shall deed and convey the completed project and facilities to the city, for no cost, as a condition of receiving final approval of the development or construction in question. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.080 Use of mitigation assessments.
All mitigation assessments paid to the city under this chapter shall be deposited in the growth management fund established under Chapter 3.12 MMC, and shall be held and used subject to the following provisions:
(1) Mitigation assessments paid by a proponent may only be expended by the city on capital improvements agreed upon between the proponent and the city which are designed to mitigate impacts directly resulting from the proposed project.
(2) Mitigation assessments shall be expended for such purposes within five years after the date of payment to the city.
(3) Any mitigation assessment not so expended shall be refunded with interest at the rate then established by state law as applying to judgments. The refund shall be made to the property owner of the subject property who is of record at the time of the refund; provided, that if the mitigation assessment is not expended within the five-year period due to delay attributable to the proponent, or its successors or assigns, the mitigation assessment shall be refunded without interest. (Ord. 2852 § 10 (Exh. A), 2011).
22D.010.090 Appeals to the city council.
Any proponent aggrieved by the amount of a mitigation assessment, or by a determination requiring the dedication of land, may appeal the same to the city council by filing a written notice of appeal with the city clerk within 20 days from the date thereof. The city council shall hold a hearing on such appeal within 30 days after the date on which the notice of appeal was filed. Notice of the time and place of the hearing shall be mailed to the proponent. At the hearing the proponent shall be entitled to be heard and introduce evidence on its own behalf. The city council shall thereupon make a final decision on the matter and shall advise the proponent of the same in writing. (Ord. 2852 § 10 (Exh. A), 2011).