Chapter 14.30
Critical Areas
Sections:
14.30.030 Establishment of critical areas and natural resource lands--Provision for data maps.
14.30.040 Interpretation of data maps.
14.30.050 Effect of data maps--Applicability.
14.30.070 Critical areas and resource lands.
14.30.080 Processing of applications for reasonable use exceptions or variances.
14.30.090 Reasonable use exceptions.
14.30.100 Hearing examiner procedure.
14.30.110 Warning and disclaimer of liability.
14.30.120 Nonconforming developments.
14.30.010 Purpose.
Flood, erosion, landslide and seismic hazard areas, slopes greater than forty percent and steeper, streams, wetlands and their buffers as defined by the city’s wetlands protection ordinance together constitute sensitive areas that are of special concern to the city. The purposes of this chapter are to protect the public health, safety, and welfare by:
(1) Protecting and restoring sensitive areas, and/or mitigating impacts to sensitive areas by regulating their development;
(2) Protecting the public from damage due to landslide, subsidence, or erosion;
(3) Preventing any adverse impacts to water quality, wetlands, and streams;
(4) Protecting the public against losses from:
(A) Unnecessary maintenance and replacement of public facilities;
(B) Publicly funded mitigation of avoidable impacts; and
(C) Cost for public emergency rescue and relief operations;
(5) Alerting appraisers, assessors, owners, buyers or lessees to the development limitations of the sensitive areas;
(6) Providing the city council or the responsible city agency with information to approve, condition, or deny public or private development proposals;
(7) Protecting the economic and ecological values of the environment. (Ord. 1545 §1, 2010).
14.30.020 Definitions.
(a) "Administrative authority" means those public officials authorized by this chapter to administer the provisions and employ the procedures set forth in this chapter. When reference is made to the director of community development, it shall be deemed to mean the director of community development (the director) or his or her designee.
(b) "Conservation easement" means a reservation or encumbrance on a particular piece of real property that precludes building improvement(s) intended for human habitation or other structures or activities that would frustrate the primary purpose of the easement as a buffer.
(c) "Critical aquifer recharge area" means those areas that have been identified as having a critical recharging effect on aquifer use for potable water in community water systems.
(d) "Critical areas" means one or a combination of wetlands, critical aquifer recharge areas, frequently flooded areas or geologically hazardous areas, and such others as may be included within that definition by mandatory provisions of state law, rule, regulation, or judicial decision.
(e) "Data maps" means that series of maps maintained by the city for the purpose of graphically depicting the boundaries of resource lands and critical areas.
(f) "Fish and wildlife habitat conservation areas" is defined as follows:
(1) Areas with which federally (50 CFR 17.11 and 50 CFR 17.12) or state (WAC 232-12-011 and 232-12-014) listed endangered and threatened species of fish and wildlife have a primary association;
(2) Lakes, ponds, streams and rivers planted with game fish, including fish planted under the auspices of a federal, state, local, or tribal program which supports priority fish species as identified by the Department of Wildlife.
(g) "Frequently flooded areas" means flood plains and other areas subject to a one percent or greater chance of flooding in any given year.
(h) "Geologically hazardous areas" means all lands within the city’s comprehensive plan study area which will be classified as either: (1) known or suspected risk, (2) no risk, or (3) risk unknown--data are not available to determine the presence or absence of a geological hazard. Geological hazards include:
(1) Erosion hazard areas include areas that because of natural characteristics, including vegetative cover, soil texture, slope, gradient, and rainfall patterns, or manmade changes to such characteristics, are vulnerable to erosion. Erosion hazard areas are those areas that have a severe or very severe erosion potential as detailed in the soil descriptions contained in the most recent "Soil Survey of Grays Harbor County Area, Washington" issued by Soil Conservation Service, USDA.
(2) Landslide hazard areas include areas potentially subject to landslides based upon the following combination of geologic, topographic and hydrologic factors:
(A) Areas of historic failure;
(B) Areas with all three of the following characteristics:
(i) Slopes of twenty-five percent gradient or greater, and
(ii) Hillsides intersecting geologic contacts with a relatively permeable sediment overlaying a relatively impermeable sediment or bedrock, and
(iii) Springs or groundwater seepage;
(C) Slopes that are parallel or subparallel to planes or weakness in subsurface materials;
(D) Privately owned areas with slopes that have gradients greater than eighty percent subject to rock fall during seismic shaking;
(E) Areas potentially unstable as a result of rapid stream incision or stream bank erosion;
(F) Areas located in a canyon or an active alluvial fan presently or potentially subject to one percent or greater chance of inundation by debris flows or catastrophic flooding;
(G) Areas with slope gradients of forty percent or greater not composed of consolidated rock. These will be of at least ten feet of vertical relief.
(3) Seismic hazard areas include areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction or surface faulting.
(i) "Mineral lands" means lands that are not already characterized by urban growth and are of long term commercial significance for the extraction of aggregate and mine resources, including: sand, gravel and valuable metallic substances.
(j) "Native vegetation" means vegetation comprised of plant species which are indigenous to the Puget Sound region and which reasonably could have been expected to naturally occur on the site. Native vegetation does not include noxious weeds.
(k) "Qualified professional" means an accredited or licensed professional with a combination of education and experience in the discipline appropriate for the subject matter that is being commented on; someone who would qualify as an expert in the field.
(l) "Resource lands" means mineral lands.
(m) "Sensitive areas special study" means a study that identifies and characterizes any sensitive area as a part of the larger development proposal site, assesses any hazards to the proposed development, assesses impacts of the development proposal on any sensitive areas on or adjacent to the development proposal site, and assesses the impacts of any alteration proposed for a sensitive area. Studies propose adequate mitigation, maintenance and monitoring plans and bonding measures. Sensitive areas special studies include a scale map of the development proposal site and a written report.
(n) "Species of local importance" means those species that are game species.
(o) "Steep slopes" means any ground that rises at an inclination of forty percent or more within a vertical elevation change of at least ten feet (a vertical rise of ten feet or more for every twenty-five feet of horizontal distance). A slope is delineated by establishing its toe and top as measured by averaging the inclination over at least ten feet of vertical relief.
(1) Toe of a slope is a distinct topographic break in slope which separates slopes inclined at less than forty percent from slopes equal to or in excess of forty percent. Where no distinct break exists, the toe of a steep slope is the lowermost limit of the area where the ground surface drops ten feet or more vertically within a horizontal distance of twenty-five feet.
(2) Top of a slope is a distinct, topographic break in slope which separates slopes inclined at less than forty percent from slopes equal to or in excess of forty percent. Where no distinct break in slope exists, the top of slope shall be the uppermost limit of the area where the ground surface drops ten feet or more vertically within a horizontal distance of twenty-five feet.
(p) "Urban growth" means activities that make intensive use of land for the location of buildings, structures, and impermeable surfaces to such a degree as to be incompatible with the primary use of such land for the production of food, other agricultural products, or fiber, or the extraction of mineral resources.
(q) "Urban growth, characterized by" means lands having urban growth on it; or land located in relationship to an area with urban growth on it as to be appropriate for urban growth; or any and all incorporated areas.
(r) "Wetlands, regulated" is defined in the ordinances of the city, or in the absence of such a definition, as defined with the provisions of the regulations issued by the Washington State Department of Ecology. (Ord. 1545 §2, 2010).
14.30.030 Establishment of critical areas and natural resource lands--Provision for data maps.
(a) List of Critical Areas. Certain portions of the incorporated area of the city have been divided into the following critical areas:
(1) Wetlands;
(2) Critical aquifer recharge areas;
(3) Frequently flooded areas;
(4) Geologically hazardous areas;
(5) Fish and wildlife conservation areas.
(b) List of Natural Resource Lands. Natural resource lands include the following:
Mineral resource areas.
(c) Critical areas and resource lands are designated on a series of data maps which are now or will be hereafter maintained in the office of the clerk-controller. These maps contain the best available graphic depiction of critical areas and resource lands and will be continuously updated as reliable data becomes available. These maps are for information and illustrative purposes only and are not regulatory in nature.
The critical areas and resource lands data maps are intended to alert the development community, appraisers, and current or prospective property owners of a potential encounter with a use or development limiting factor based on the natural systems. The presence of a critical area or resource designation on the data maps is sufficient foundation for the director of community development to order an analysis for the factor(s) identified prior to acceptance of a development application as being complete and ready for processing under the provisions of the zoning code or the subdivision code. (Ord. 1545 §3, 2010).
14.30.040 Interpretation of data maps.
The city director of community development or his or her designee is declared the director of community development of the ordinance codified in this chapter for the purpose of interpreting data maps. An affected property owner or other party with standing has a right to appeal the administrative determination to the city council using the same procedure for appeals found in Title 17.
The data maps are to be used as a general guide to the location and extent of critical areas and resource lands. Critical areas and resource lands indicated on the data maps are presumed to exist in the locations shown and are protected under all the provisions of this chapter. The exact location of critical areas and resource lands shall be determined by the applicant as a result of field investigations performed by qualified professionals using the definitions found in this chapter. All development applications are required to show the boundary(s) of all critical areas and resource lands on a scaled drawing prior to the development application being considered "complete" for processing purposes. (Ord. 1545 §4, 2010).
14.30.050 Effect of data maps--Applicability.
(a) Effect of Data Maps. The conclusion by the director of community development that a parcel of land or a part of parcel of land that is the subject of a proposed development application is within the boundary(s) of one or more critical areas or resource lands, as shown on the data maps, shall serve as cause for additional investigation and analysis to be conducted by the applicant. The site-specific analysis shall be limited to those critical areas and resource lands indicated on the data maps. In the event of multiple designations, each subject matter will be addressed independently and collectively for the purpose of determining development limitations and appropriate mitigating measures.
(b) Applicability. This chapter applies to all real property within the corporate limits of the city, as it is now configured or altered in the future.
When any other chapter of this code conflicts with this chapter, the more restrictive provision will apply. (Ord. 1545 §5, 2010).
14.30.060 General provisions.
(a) All development proposals, whether public or private, shall comply with the requirements and purposes of this chapter and the adopted administrative rules. Lots approved for development prior to adoption of this chapter shall be vested. Responsibility for enforcement of this chapter shall rest with the director of community development. For the purposes of this chapter, "development proposals" include proposals which require any of the following: building permit, shoreline substantial development permit, shoreline variance, shoreline conditional use permit, conditional use permit, unclassified use permit, variance, zone reclassification, shoreline environment redesignation planned unit development, subdivision, short subdivision, master plan development, binding site plan, or any subsequently adopted permits or required approvals not expressly exempted from this chapter.
(b) When sufficient information to evaluate a proposal is not available, the director of community development shall notify the applicant that special studies are required. A special study shall include a site analysis, a discussion of potential impacts, and specific mitigation measures designed to mitigate the potential impacts. A monitoring program may be required to evaluate the effectiveness of the mitigation measures.
(c) Prior to accepting a development application tendered pursuant to the zoning code or the subdivision code, the data maps shall be consulted for the purposes of determining whether or not the property subject to the application is within any area shown as a critical area or resource land. When such areas are encountered, the applicant will promptly be notified and the type(s) of critical or resource areas disclosed. Instructions shall be provided to the applicant on the type of evaluation and site-specific analysis that will be required as a supplement to the application materials necessary to bring the application up to a standard that can be characterized as complete and eligible for processing. If the subject property does not lie within or partly within the critical areas or resource lands as depicted on the data maps, the application will be considered complete, provided the application requirements of the ordinance governing the process at issue are satisfied.
(d) From the effective date of the ordinance codified in this chapter, no development application processed under the zoning or platting/subdivision titles shall be approved without a written finding that this chapter has been considered, additional information has been assembled under this chapter or was not required, and that the purpose and intent of this chapter has been accorded substantial consideration.
(e) The requirements set forth in this chapter shall be considered as minimum requirements in the processing of development applications under subdivision and zoning titles and represent standards in addition to the requirements set forth in those titles.
(f) No site analysis required by this chapter will be considered complete without a detailed resume of the principal author(s) which disclose(s) their technical training and experience and demonstrates their stature as qualified professionals. (Ord. 1545 §6, 2010).
14.30.070 Critical areas and resource lands.
(a) Critical Areas.
(1) Wetlands.
(A) Site analysis is required for the purpose of establishing an exact wetland boundary using the criteria found in the "Federal Manual for Identifying and Delineating Jurisdictional Wetlands." Field delineation of the boundary is required and a scaled map must be produced. The Puget Sound wetlands rating system must be applied to the wetlands area to establish the category(s) of wetlands in evidence. The analysis required by this subsection shall be done by qualified professional and technical scientists, the Washington Department of Ecology, or others who can demonstrate through a combination of formal training and field experience the ability to function professionally in this capacity.
(B) Development Standards. All developments must follow the provisions of the wetlands protection provisions of this code, as now existing or as may be amended.
(2) Critical Aquifer Recharge Areas.
(A) Classification. For the purposes of this chapter, the boundaries of the city’s aquifer recharge areas are the boundaries of the two highest DRASTIC zones which are rated 180 and above on the DRASTIC index range.
(B) Regulation.
(i) Permeable Surfaces. Whenever possible, uses that are not identified as a threat to the aquifer shall provide as much open permeable space as possible, and impervious surfaces shall be minimized.
(ii) Hydrogeologic Assessment.
a. Only the following uses of land shall require a hydrogeologic assessment of the proposed site if the site is located within an aquifer recharge area.
1. Hazardous substance processing and handling;
2. Hazardous waste treatment and storage facility;
3. Disposal of on-site sewage for subdivisions and commercial and industrial sites;
4. Waste water treatment plant sludge disposal categorized as S-3, S-4 and S-5;
5. Animal feed lots;
6. Landfills.
b. The hydrogeologic assessment shall include, but is not limited to:
1. Information sources;
2. Geologic setting;
3. Background water quality;
4. Groundwater elevations;
5. Location/depth to perched water tables;
6. Recharge potential of facility site;
7. Groundwater flow direction and gradient;
8. Currently available data on wells located within one thousand feet of site;
9. Currently available data on any spring within one thousand feet of site;
10. Surface water location and recharge potential;
11. Water source supply to facility;
12. Any sampling schedules necessary;
13. Discussion of the effects of the proposed project on the groundwater resource.
c. The hydrogeologic assessment shall be submitted by a firm with experience in hydrogeologic assessments or determined acceptable by the city.
d. Uses requiring a hydrogeologic assessment may be conditioned or denied based upon the director of community development’s evaluation of the hydrogeologic assessment. The hydrogeologic assessment must show the use does not present a threat to the aquifer system and that the proposed use will not cause contaminants to enter the aquifer.
(iii) Storage Tank Permits.
a. All new underground storage facilities used or to be used for the underground storage of hazardous substances or hazardous wastes shall be designed and constructed so as to:
1. Prevent releases due to corrosion or structural failure for the operational life of the tank;
2. Be protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material, or designed to include a secondary containment system to prevent the release or threatened release of any stored substance; and
3. Use material in the construction or lining of the tank which is compatible with the substance to be stored.
b. Aboveground Tanks.
1. No new aboveground storage facility or part thereof shall be fabricated, constructed, installed, used, or maintained in any manner which may allow the release of a hazardous substance to the ground, ground waters, or surface waters within an aquifer recharge area.
2. No new aboveground tank or part thereof shall be fabricated, constructed, installed, used, or maintained without having constructed around and under it an impervious containment area enclosing or underlying the tank or part thereof.
3. A new aboveground tank will require a secondary containment system either built into the tank structure or a dike system built outside the tank for all tanks located within an aquifer recharge area.
(3) Frequently Flooded Areas.
(A) Generally. Flood plains and other areas subject to flooding perform important hydrologic functions.
(B) Classification. Any flood hazard area shall be as identified in the most recent scientific and engineering report entitled "The Flood Insurance Study for Grays Harbor County," with accompanying flood insurance rate maps prepared by the Federal Emergency Management Agency (FEMA).
(C) Regulation. All developments must follow the provisions of the flood plain district, if any, set forth within the zoning code.
(4) Landslide Hazard Areas. Development proposals on sites containing landslide hazard areas shall meet the following requirements:
(A) Slopes Over Forty Percent--Development Standards. All proposed developments on slopes forty percent or steeper should be avoided if possible.
(i) Alterations. Alterations to slopes over forty percent shall be allowed as follows:
a. Utilities. Construction of public and private utility corridors may be allowed on steep slopes provided that a special sensitive area study indicates such alteration will not subject the area to the risk of landslide or erosion.
b. View Corridors. The city shall allow the logging, trimming and limbing of vegetation on steep slopes for the creation and maintenance of views; provided, that the soils are not disturbed.
c. Trails. Public and private trails may be allowed on forty percent steep slopes or greater, provided they adhere to the construction and maintenance standards in the most current U.S. Forest Service "Trails Management Handbook" and "Standard Specifications for Construction of Trails."
d. Surface Water Management. Steep slopes may be used for approved surface water conveyance. Installation techniques shall minimize disturbance to the slope and vegetation.
(ii) Limited Exemptions.
a. Slopes forty percent and steeper with a vertical elevation change of up to twenty feet may be exempted from the provisions of this section based on city review of a soils report prepared by a geologist, civil or geotechnical engineer which demonstrates that no adverse impact will result from the exemption.
b. Any slope which has been created through previous, legal grading activities may be regarded as part of an approved development proposal. Any slope which remains equal to or in excess of forty percent following site development shall be subject to the development standards for slopes over forty percent.
c. Unless otherwise specified, the following restrictions apply to vegetation removal or introduction in steep slopes, landslide hazard areas and their buffers:
1. There shall be no removal of any vegetation from any steep slope hazard area or buffer except for the limited plant removal necessary for surveying purposes and for the removal of hazard trees or for view corridors as set forth in subsection (a)(4)(A)(i)(b) of this section.
2. Harvesting of timber and reforestation to prevent erosion is permitted.
3. On slopes which have been disturbed by human activity or infested by noxious weeds, replacement with native species or other appropriate vegetation may be allowed subject to approval by the city.
(B) Slopes Twenty-Two to Thirty-Nine Percent--Development Standards.
(i) A landslide hazard area, located on a slope less than forty percent, may only be altered in the following circumstances:
a. If the development proposal will not decrease slope stability on adjacent properties; and
b. If the landslide hazard area can be modified or the development proposal can be designed so the landslide hazard to the project and adjacent property is eliminated or mitigated and the development proposal on that site is certified as safe by a geologist, civil or geotechnical engineer.
c. If the development proposal will not increase surface water discharge or sedimentation to adjacent properties.
(ii) Where such alterations are approved, buffers will not be required.
(iii) Single-family and duplex residential structures shall be exempt from the requirements of subsection (a)(4)(B) of this section.
(C) Buffers. A minimum buffer of twenty-five feet shall be established from all edges of a landslide hazard area and from landslide hazard areas with slopes less than forty percent unless these areas are approved for alteration pursuant to subsection (a)(4)(B)(ii) of this section. Existing native vegetation within ten feet of the buffer area shall be maintained.
(D) Modifications to Buffer Width. When the geotechnical report demonstrates that a lesser buffer distance, and design and engineering solutions, will meet the intent of this chapter, such reduced buffer and design and engineering solutions may be permitted. Should the geotechnical report indicate that a greater buffer than that required by subsection (a)(4)(C) of this section is needed to meet the intent of this chapter, the greater buffer shall be required.
(E) Building Setback Lines. Building setback lines of eight feet shall be required from the edge of a landslide hazard area.
(5) Erosion Hazard Areas.
(A) Criteria. Erosion hazard areas are identified by the presence of vegetative cover, soil texture, slope, and rainfall patterns, or human-induced changes to such characteristics, which create site conditions which are vulnerable to erosion.
(B) Mapping. Erosion hazard areas are those areas that have a severe or very-severe erosion potential as detailed in the soil descriptions contained in the most recent edition of the "Soil Survey of Grays Harbor County Area, Washington," Soil Conservation Service, USDA.
(C) Development Standards. For all regulated activities proposed within erosion hazard areas, a geotechnical report prepared by a professional engineer licensed with the state of Washington with expertise in geotechnical or civil engineering shall be submitted. Geotechnical reports shall correspond to the definition of "sensitive area special study" contained in this chapter. Provided, where an applicant can demonstrate through submittal of a geotechnical assessment that there are no erosion hazards on-site, the requirement for the geotechnic report may be waived. The geotechnical assessment shall include at a minimum the following:
(i) A discussion of the surface and subsurface geologic conditions of the site;
(ii) A site plan of the area delineating all areas of the site subject to landslide and erosion hazards, based on mapping and criteria referenced in subsections (a)(5)(A) and (B) of this section. The submittal must include a contour map of the proposed site, at a scale of one inch equals two hundred feet. Slopes shall be clearly delineated for the ranges between fifteen and thirty-nine percent, and forty percent or greater, including figures for aerial coverage of each slope category on-site.
If the geotechnical assessment demonstrates, to the satisfaction of the director of community development, that the proposed site is not located in any erosion hazard area, based upon the criteria set forth in this subsection, then the requirements of this section shall not apply.
(D) Performance Standards. The director of community development shall evaluate all geotechnical reports for erosion hazard areas to ensure that the following standards are met:
(i) Location and Extent of Development.
a. Development shall be located to minimize disturbance and removal of vegetation;
b. Structures shall be clustered where possible to reduce disturbance and maintain natural topographic character;
c. Structures shall conform to the natural contours of the slope and foundations should be tiered where possible to conform to existing topography of the site.
(ii) Design of Development.
a. All development proposals shall be designed to minimize the footprint of building and other disturbed areas;
b. All development shall be designed to minimize impervious lot coverage;
c. Roads, walkways and parking areas shall be designed to parallel the natural contours;
d. Access shall be in the least sensitive area of the site.
e. Buffers. A minimum buffer of twenty-five feet shall be established from all edges of an erosion hazard area.
f. Building Setback Lines. Building setback lines of eight feet shall be required from the edge of an erosion hazard area buffer.
(6) Seismic Hazard.
(A) Generally. Seismic hazard areas are areas subject to severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement, or soil liquefaction.
(B) Classification.
(i) Criteria. Seismic hazard areas are areas underlain by alluvial and recessional outwash surficial geologic units.
(ii) Mapping. Seismic hazard areas are alluvial and recessional outwash units, if any, which are identified in any study which may be hereafter adopted by the city council through formal action.
(iii) Regulation. For all regulated activities except the construction of a single-family residential structure, proposed within seismic hazard areas, a geotechnical report prepared by a professional engineer licensed with the state with expertise in geotechnical or civil engineering shall be submitted. Provided, where an applicant can demonstrate through submittal of a geotechnical assessment that there are no seismic hazards on-site or that the seismic hazard can be mitigated, the requirement for the geotechnical report may be waived. Single-family and duplex residential structures shall be exempt from the requirements of subsections (a)(6)(A) and (B) of this section. Single-family and duplex residential structures shall meet appropriate Uniform Building Code requirements for seismic hazard areas.
a. Geotechnical Report. The geotechnical report shall address the existing geologic, topographic, and hydraulic conditions on a site, including an evaluation of the ability of the site to accommodate the proposed activity. The geotechnical report shall include at a minimum the following:
1. A discussion of the surface and subsurface geologic conditions of the site;
2. A site plan of the area delineating all areas of the property subject to seismic hazards, based on mapping and criteria referenced above;
3. A discussion of mitigation measures which can be taken to eliminate seismic risks associated with the underlying surficial geology; and
4. An evaluation of the effectiveness of the proposed mitigation measures.
The development proposal may be approved, approved with conditions, or denied based on the director of community development’s evaluation of the ability of the proposed mitigation measures to eliminate seismic risks associated with the underlying surficial geology.
b. Geotechnical Assessments.
1. Should the director of community development question the presence of seismic hazard areas on the site, the applicant may submit a geotechnical assessment prepared by a professional engineer licensed with the state with expertise in geotechnical engineering.
2. The geotechnical assessment shall include at a minimum the following:
A. A discussion of the surface and subsurface geologic conditions of the site;
B. A site plan of the area delineating all areas of the site subject to seismic hazards, based on mapping and criteria referenced above. If the geotechnical assessment demonstrates, to the satisfaction of the director of community development, that the proposed site is not located in any seismic hazard areas, based upon the criteria set forth above, then the requirements of this section shall not apply.
(iv) Plat Notification. For all proposed short subdivision and subdivision proposals within seismic hazard areas, the applicant shall include a note on the face of the plat. The note shall be as set forth below:
Notice: This site lies within a seismic hazard area as defined in City of Montesano’s Sensitive/Critical Areas Ordinance. Restrictions on use or alteration of the site may exist due to natural conditions of the site and resulting regulation.
The note shall be recorded prior to final plat approval of any short subdivision or subdivision.
(7) Fish and Wildlife Habitat Conservation Areas.
(A) Generally. Fish and wildlife habitat areas are those areas identified as being of critical importance to maintenance of fish, wildlife, and plant species, including:
(i) Areas with which federally or state listed endangered and threatened species of fish, wildlife, and plants have a primary association and which, if altered, may reduce the likelihood that the species will maintain and reproduce over the long term;
(ii) Waters of the state, including all water bodies classified by the Washington Department of Natural Resources (DNR) water typing classification system as detailed in WAC 222-16-030;
(iii) Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;
(iv) State natural area preserves and natural resource conservation areas.
(B) Classification. Fish and wildlife habitat areas are identified in the following documents:
(i) The following Washington Department of Wildlife documents and data sources:
a. "Priority Habitats and Species Program";
b. "Non-Game Data Base";
c. "Washington Rivers Information System."
(C) Regulation.
(i) Habitat Assessment. For all regulated activities proposed on a site which contains or is within one hundred feet of fish and wildlife habitat, a habitat assessment shall be submitted. The habitat assessment shall be prepared by a professional wildlife biologist with a degree in biology or zoology. At a minimum, the habitat assessment shall contain:
a. A discussion of species or habitats known or expected to be located on or within one hundred feet of the site, including state or federal endangered and threatened species;
b. A site plan which clearly identifies and delineates critical fish and wildlife habitats found within one hundred feet of the site.
(ii) Habitat Management Plan. If the habitat assessment demonstrates to the satisfaction of the director of community development that fish and wildlife habitat are not located on or within one hundred feet of the site, then the development can proceed without further requirement for special wildlife studies. Otherwise, a habitat management plan shall be submitted. All habitat management plans shall be prepared by a professional biologist or zoologist with a degree in one of those fields. The habitat management plan shall contain at a minimum:
a. A discussion of the project’s effects on fish and wildlife habitat;
b. A discussion of any federal, state, or local special management recommendations which have been developed for species or habitats located on the site;
c. A discussion of measures proposed to preserve existing habitats;
d. An evaluation of the effectiveness of any proposed mitigation measures;
e. A discussion of ongoing management practices which will protect fish and wildlife habitats after the project site has been fully developed, including proposed monitoring and maintenance programs.
Habitat management plans shall be forwarded to the Washington Department of Wildlife and similar appropriate state and federal agencies for their comments at the discretion of the city. Bald eagle management plans shall comply with bald eagle protection rules as per WAC 232-12-292.
All projects may be conditioned based on comments from agencies and the director of community development’s evaluation of the impacts of the project. Projects may be denied if the proposal will result in extirpation or isolation of endangered or threatened fish and wildlife species.
(iii) Fish and Wildlife Habitat Buffer. Based on the information provided by the habitat management plan, buffers consisting of undisturbed natural vegetation shall be required to ensure retention of endangered and threatened fish and wildlife habitat areas. The width of the buffers shall be determined on a case-by-case evaluation by the director of community development.
(iv) Buffers on Water Bodies. A buffer, consisting of undisturbed natural vegetation, shall be required along all streams, lakes, and ponds, as classified by the DNR water typing classification system (WAC 222-16-030). The buffer shall extend landward from the ordinary high water mark of the water body. The buffer widths shall be the higher number listed below.
|
DNR Water Type |
Buffer Width in Feet |
|---|---|
|
1 |
100 |
|
2 |
100 |
|
3 |
75 |
|
4 |
50 |
|
5 |
25 |
(v) Allowable Activities in the Buffer. The following alterations may be made within the buffer upon approval of a plan by the director:
a. Outdoor recreational activities, including fishing, bird watching, hiking, boating, horseback riding, swimming, canoeing, and bicycling;
b. The maintenance (but not construction) of drainage ditches and other flood control activities;
c. Normal maintenance, repair, or operation of existing serviceable structures, facilities, or improved areas;
d. Minor modification of existing serviceable structures within a buffer zone;
e. Parks, trails, foot bridges, and other public park facilities;
f. Public utilities and related facilities.
(vi) Mitigation for Streams--Standards for Restoration, Enhancement or Replacement.
a. Restoration is required when a stream or its buffer has been altered in violation of this chapter or any prior ordinance applying to the treatment of streams, or when an unapproved or unanticipated alteration occurs during the construction of an approved development proposal; provided, that a mitigation plan for the restoration demonstrates that:
1. The stream is degraded and will not be further degraded by the restoration activity;
2. The restoration will reliably and demonstrably improve the water quality and fish and wildlife habitat of the stream;
3. The restoration will have no lasting significant adverse impacts on any in-stream resource;
4. All work will be carried out under the direct supervision of a qualified biologist;
5. The following minimum performance standards shall be met for restoration of a stream; provided, that these standards may be modified if the applicant can demonstrate that greater habitat value can be obtained:
A. The natural channel dimensions should be replicated including identical depth, width, length and gradient at the original location and the original horizontal alignment should be replaced,
B. The bottom should be restored with identical or similar materials,
C. The bank and buffer configuration should be restored to the original conditions,
D. The channel, bank and buffer areas should be replanted with native vegetation which replicates the original in species, sizes and densities, and
E. The original habitat value should be recreated.
b. Replacement or enhancement is required when the planning commission permits or approves the alteration of a stream or buffer. There will be no net loss of stream functions on a development proposal site and no impact on stream functions above or below the site due to approved alterations.
1. Replacement. When an approved alteration involves the relocation of a stream, the performance standards in subsection (a)(8)(C)(vi)(a) of this section are required in order to replicate the structure and function of the original stream, unless the applicant can demonstrate that greater habitat value can be obtained through varying these standards.
2. Enhancement. Enhancement, when allowed, should improve the functions and values of the streams. Surface water management or flood control alterations shall not be considered enhancement unless other functions and values are simultaneously increased.
3. Location. Replacement or enhancement for streams shall be accomplished in streams, and shall occur on-site unless the applicant demonstrates that on-site replacement or enhancement is not possible, that the off-site alternative is in the same drainage sub-basin and that greater biological and hydrological values will be derived.
(b) Resource Lands.
(1) Mineral Resource Lands.
(A) Generally. All mineral resource lands that are not already characterized by urban growth and that have long term significance for the extraction of minerals.
(B) Permitted Uses. Permitted uses are as follows:
(i) Quarrying and mining of minerals or materials, including but not limited to sand and gravel, rock, clay and peat;
(ii) The exploitation, primary reduction, treatment and processing of minerals or materials together with the necessary buildings, structures, apparatus or appurtenances on the property where at least one of the major mineral or material constituents being exploited is from the property, including, but not limited to, concrete batching, asphalt mixing, brick, tile, terra cotta and the use of accessory minerals and materials from other sources necessary to convert the minerals or materials to marketable products;
(iii) The growing and harvesting of forest products, the operation of sawmills and chippers and activities and structures incidental to each;
(iv) Agricultural crops, open field growing, stock grazing and the harvesting of any wild crop such as marsh hay, ferns, moss, berries, etc.
(v) Public utility facilities;
(vi) Dwellings used and required by mining or quarrying operations for continuous supervision by a caretaker or superintendent and his immediate family; and dwellings on the same premises which are being used for agricultural purposes, which dwellings are occupied only by persons employed on the same premises and their immediate families;
(vii) Compost processing limited to the receiving and processing of lawn clippings, leaves, branches, limbs, stumps, scrap lumber, and salvaged wood which has not been chemically treated and other acceptable organic materials necessary for conversion into marketable recycling/composted products.
(C) Bulk Regulations. The site shall be a contiguous area and have a size not less than five acres.
(2) Property Adjacent or Abutting Designated Mineral Resource Lands.
(A) Regulations.
(i) Uses Permitted Outright. Uses permitted outright are as follows:
a. All suburban agricultural, residential estate, and suburban residential zoning designations;
b. The growing and harvesting of timber, forest products and associated management activities in accordance with the Washington Forest Practices Act of 1974 as amended, as codified in Chapter 76.09 RCW and regulations adopted pursuant hereto;
c. One single-family dwelling or mobile home per lot, parcel, or tract;
d. Buildings accessory to a single-family dwelling or mobile home, such as garages, storerooms, woodsheds, laundry rooms, playhouses, greenhouses, hobby shops, animal or fowl shelters, or similar and related accessory uses;
e. Agriculture, floriculture, horticulture, general farming, dairying, the raising, feeding and sale or production of poultry, livestock, honeybees, Christmas trees, nursery stock and floral vegetation, and other agricultural activities and structures accessory to farming and animal husbandry;
f. Public and semi-public structures, and uses including, but not limited to, fire stations, utility substations, pump stations, wells and transmission lines.
(ii) Uses Permitted Subject to the Granting of a Conditional Use Permit. Other uses may be permitted subject to the approval of the planning commission.
(B) Bulk Regulations.
(i) Minimum setbacks from the adjacent or abutting natural resource lands shall be established prior to determination of all other setbacks as set forth in subsection (b)(2)(A) of this section. All yards of properties adjacent or abutting natural resource lands must meet the necessary setbacks as required by subsection (b)(2)(B)(ii)(c) of this section. Any yards not determined to be adjacent to or abutting natural resource land shall be determined in the following order: (a) front yard; (b) rear yard; (c) all remaining yards shall be considered as side yards.
(ii) Permitted accessory uses may be within the required yard adjacent to or abutting a natural resource land subject to other required setbacks.
a. The minimum lot area shall be two and one-half acres per lot.
b. The minimum lot width shall be one hundred feet.
c. Minimum yard adjacent to or abutting a designated natural resource land is fifty feet.
d. On property abutting a primary state or county highway, the minimum front yard shall be thirty-five feet. On property abutting all other roads the minimum front yard shall be twenty-five feet.
e. The minimum side yard shall be eight feet.
f. The minimum rear yard shall be thirty feet.
g. The maximum height shall be thirty-five feet.
h. In order to encourage clustering and the maintenance of open space and wetlands, parcels larger than ten acres may be allowed a density of one dwelling unit per one and one-quarter acres; provided, that lots shall not be smaller than one acre. Clustered housing projects shall not occupy more than sixty percent of a parcel. (Ord. 1545 §7, 2010).
14.30.080 Processing of applications for reasonable use exceptions or variances.
The hearing examiner may authorize, upon appeal or application in a specific case, such variances or reasonable use exceptions from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship. (Ord. 1545 §8, 2010).
14.30.090 Reasonable use exceptions.
(a) Applicability and Intent. A reasonable use exception (RUE) is intended to ensure reasonable use of a property when reasonable use of that property cannot be achieved through any other means. An applicant may request an RUE pursuant to this section if the applicant demonstrates that:
(1) The subject property is encumbered to such an extent by critical areas and/or water quality buffers that application of this chapter would deny all reasonable use of the subject property; and
(2) Reasonable use of the subject property cannot be achieved through buffer averaging, a habitat management plan, or a variance.
(b) Exception Request and Review Process. An application for an RUE shall be made to the city and shall include a critical area report, including mitigation plan, if necessary, and any other relevant information and reports that are necessary, in the opinion of the director, to process and prepare the recommendation on the application, 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).
(c) After receiving the application, the director shall determine whether the property qualifies for inclusion in any program established by the city that would eliminate the need for an RUE including, but not limited to, programs regarding transfer of development rights, mitigation banking, and open space acquisition. If the property qualifies for inclusion in one or more of such programs, the director shall notify the applicant in writing of such qualification and of the applicable rules and regulations, and shall send an application form for inclusion in such program(s). If the property is included in one or more of such programs, the application shall be further processed as amended or withdrawn, as appropriate.
(d) After receiving the application, the city may, at its sole discretion, offer to purchase the development rights rather than grant an RUE, and the applicant, at his/her sole discretion, may agree to accept the offer to purchase said development rights rather than pursue an RUE.
(e) The director shall prepare a recommendation to the hearing examiner based on review of the submitted information and reports, a site inspection, and the proposal’s compliance with the criteria in subsection (g) of this section.
(f) Hearing Examiner Review. The hearing examiner shall review an RUE or variance application and conduct a public hearing pursuant to the provisions of Section 14.30.100 and the provisions of Chapter 2.38. In the event of any inconsistency between those enactments, the provisions of Section 14.30.100 shall control. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s compliance with all of the RUE review criteria in subsection (g) of this section.
(g) Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions are as follows:
(1) The application of this chapter would deny all reasonable use of the property;
(2) There is no reasonable alternative to the proposal;
(3) The proposed impact to the critical area is the minimum necessary to allow reasonable use of the property;
(4) The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant, or of the applicant’s predecessor, that occurred after February 20, 1992;
(5) The proposed total lot coverage does not exceed one thousand two hundred square feet;
(6) The proposal does not pose an unreasonable threat to the public health, safety, or welfare on or off the property;
(7) Any net loss of critical area functions and values, as determined by a qualified consultant through the application of best available science, will be mitigated on-site to the extent feasible if off-site options are not available. If off-site options, such as a fee-in-lieu or mitigation banking program, are available, the mix of on-site and off-site mitigation should be based on recommendations of the consultant;
(8) A habitat management plan has been prepared pursuant to Section 14.30.070, unless it is determined through the applicable review process that such a plan is unnecessary; and
(9) The proposal is consistent with other applicable regulations and standards.
(h) 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. The standard for the burden of proof shall be clear and convincing evidence. (Ord. 1545 §9, 2010).
14.30.100 Hearing examiner procedure.
(a) Applicability. This section applies each time a provision of this chapter authorizes a public hearing before the hearing examiner and a final decision by the hearing examiner.
(b) Purpose. The purpose of the public hearing is to review a proposed project for consistency with the municipal code, appropriate elements of the comprehensive plan, and all other applicable law, and to provide an opportunity for the public to comment on the project and its compliance with the municipal code, the comprehensive plan, and all other applicable law.
(c) State Environmental Policy Act. The State Environmental Policy Act (SEPA) and the Montesano SEPA provisions contained in this title may also apply to an action processed under this section.
(d) Decision Procedures. Applications filed under this chapter requiring a hearing examiner decision shall first be reviewed by the director of community development as follows:
(1) Environmental Review. For a land use application subject to Chapter 43.21C RCW and provisions of this code, the SEPA threshold determination shall be issued and any required public comment period shall be completed prior to a public hearing.
(2) Planning Commission Review and Recommendation. For all applications filed under this chapter for decision by the hearing examiner, when written public comments are received during the public comment period concerning the effect of the application on the comprehensive plan, the shoreline master program, or matters not addressed by specific provisions of this code, the director or the hearing examiner may, but are not required to, request planning commission review and recommendation prior to the final decision. If referred to it for review, the planning commission will consider the application at a public meeting. After that meeting:
(A) The planning commission may recommend approval, approval with modifications, or denial of an application.
(B) In making a recommendation, the planning commission shall consider the applicable decision criteria of this code, all other applicable law, and any necessary documents and approvals.
(C) If, in the opinion of the commission, the applicable criteria are not met, the planning commission may recommend the proposal be modified or denied.
(D) A planning commission recommendation is not a final decision and therefore there is no appeal of the recommendation.
(3) Transmittal of Planning Commission Recommendation. The planning commission’s written recommendation and other documents upon which its decision is based shall be promptly transmitted to the director and hearing examiner.
(4) Single Report. The director shall prepare a single consolidated report setting forth all the recommendations and conclusions, including any received from the planning commission, made on the application as of the date of the report. The report shall state any mitigation required or proposed under the development regulations or as required by SEPA, Chapter 43.21C RCW, and shall include the SEPA determination if a determination has not previously been issued. The report shall be presented to the hearing examiner at the public hearing.
(e) Public Hearing. The hearing examiner shall hold a public hearing prior to issuing a decision. The hearing examiner shall maintain a record of the exhibits presented and an audio recording of the testimony and arguments presented, which shall be kept by the clerk-controller. Any rules of procedure for hearings adopted by the hearing examiner shall be kept on file with the office of the city clerk-controller and the department of community development.
(f) Participation in the Public Hearing. Participation in the hearing will be in accordance with the following procedures:
(1) The provisions of the Open Meetings Act (Chapter 42.30 RCW).
(2) Any person may participate in the public hearing. The hearing examiner has discretion to limit testimony to relevant, nonrepetitive comments and to set time limits.
(g) Hearing Examiner Action.
(1) The hearing examiner may approve, approve with modifications, deny, or remand an application.
(2) In making a decision, the hearing examiner shall consider the applicable decision criteria of this code, all other applicable law, and any necessary documents and approvals.
(h) Notice of Decision of the Hearing Examiner. The hearing examiner shall issue a written decision in accordance with the time limits established by Chapter 2.38, unless a longer period is agreed upon by the hearing examiner and the applicant. If the hearing examiner and the applicant agree on a longer period for issuance of the written decision, the examiner shall provide notice of the extension to the applicant, the city, and any person who testified at the hearing or submitted written testimony for consideration at the hearing. The hearing examiner shall file the decision as provided in Chapter 2.38.
(i) Continuation of Hearing. A hearing may be continued to a date certain without additional notice.
(j) Motion for Reconsideration. A motion for reconsideration may be filed pursuant to the provisions of Section 2.38.100. Such motion shall be decided on the record unless, at the hearing examiner’s discretion, further public hearing is necessary. If a timely and appropriate request for reconsideration is filed, the appeal period shall begin from the date the decision on the reconsideration is issued.
(k) Corrections or Clarification.
(1) The hearing examiner at any time may amend the decision to correct clerical errors clearly identifiable from the public record. Such correction does not affect any time limit provided for in this chapter or Chapter 2.38.
(2) The hearing examiner may clarify a statement in the written decision as long as the clarification does not materially alter the decision.
(l) Effect of Decision. The decision of the hearing examiner shall be final unless, in compliance with the provisions of Chapter 2.38, a person with standing appeals the decision in accordance with Chapter 36.70C RCW. (Ord. 1545 §10, 2010).
14.30.110 Warning and disclaimer of liability.
The degree of hazard protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Catastrophic natural disasters can, and will, occur on rare occasions. This chapter does not imply that land outside the critical areas or activities permitted within such areas will be free from exposure or damage. This chapter shall not create liability on the part of the city, and officers or employees thereof, for any damages that result from reliance on this chapter or any administrative decision lawfully made hereunder. (Ord. 1545 §11, 2010).
14.30.120 Nonconforming developments.
Within the critical areas and natural resource lands established by this chapter or subsequent amendments thereto, there exist developments and lots of record which would be prohibited, regulated or restricted under the terms of this chapter or future amendments. It is the intent of this chapter to permit these nonconformities to continue and to allow previously approved developments to reach the development conclusion anticipated in their approved applications. The lots of record within major subdivisions that have received preliminary plat approval and short plats filed for record at the Grays Harbor County auditor’s office will be considered building lots in all respects and exempt from the provisions of this chapter. Planned developments, conditional use permits and other land use applications approved prior to the effective date of the ordinance codified in this chapter are also exempt from this chapter. (Ord. 1545 §12, 2010).
14.30.130 Administration.
The director of community development of the city is hereby directed to administer the provisions of this chapter and the city may appoint other employees as may be necessary to assist in its administration. The director of community development shall adopt and revise, as required, such forms and instructions as are necessary or appropriate to serve the public and carry out the provisions of this chapter.
(a) Any additional rules and procedures necessary to implement the provisions of this chapter shall be developed by the director of community development or his/her designee as appropriate. Any such rule or regulation shall be submitted in writing to the council no less than thirty calendar days prior to its anticipated effective date. If during that period the council either rejects or suspends the effective date, the rule or regulation shall not go into effect until approval by the council. In the event of no action by the council, the regulation shall go into effect upon the date set by the director of community development; provided, that the director of community development may propose and the council may authorize an effective date earlier than the thirty days otherwise required.
(b) Such rules and regulations issued by the director of community development as go into effect, as well as copies of the above referenced regulations and manuals, shall be kept on file in the office of the clerk-controller or at such other location within the city’s offices as the clerk-controller may authorize. They shall be available to the public upon request. (Ord. 1545 §13, 2010).