Chapter 19.10 CLEARING, GRADING, FILLING, AND DRAINAGE

1. To promote, protect, and preserve the public interest by establishing standards for and regulating land alteration, particularly the clearing, grading, filling, and/or drainage of land in the city without preventing the reasonable use of land;

2. To regulate land-disturbing activity for control of erosion, sedimentation, stormwater runoff, water pollution, vegetation removal, and landslide in order to minimize damage to public and private property;

3. To complement Chapter 14.12 NBMC in the management of areas of special flood hazard;

4. To promote building and site planning practices that are consistent with the city’s natural topography, soils, and vegetation features;

5. To minimize hazards to life, health, and property;

6. To require that development of environmentally sensitive lands be accomplished in a manner which protects those areas from damage or degradation and which promotes the health, safety, and welfare of the public;

7. To implement the goals and objectives and policies of the city’s comprehensive plan and the Washington State Environmental Policy Act, the Growth Management Act, and the city ordinances adopted pursuant to these state statutes;

8. To preserve and protect cultural, historical and anthropological artifacts from destruction when discovered on property within North Bend;

9. To minimize indiscriminate removal or destruction of trees, shrubs and ground cover; and

10. To show that trees and other vegetation are important elements of the physical environment. They are integral to North Bend community character and protect public health, safety and general welfare. Protecting, enhancing, and maintaining healthy trees and vegetation are key community values. The many benefits of healthy non-invasive trees and vegetation contribute to North Bend’s quality of life by:

a. Encouraging good development practices that minimize the adverse impacts of land-disturbing activities and impervious surfaces such as runoff, soil erosion, land instability, sedimentation and pollution of waterways, thus reducing the public and private costs for stormwater control/treatment and utility maintenance;

b. Improving the air quality by absorbing air pollutants, assimilating carbon dioxide and generating oxygen;

c. Reducing the effects of excessive noise pollution;

d. Providing cost-effective protection from severe weather conditions with cooling effects in the summer months and insulating effects in winter;

e. Providing visual relief and screening buffers;

f. Providing recreational benefits;

g. Providing habitat, cover, food supply and corridors for a diversity of fish and wildlife; and

h. Providing economic benefit by enhancing local property values and contributing to the region’s natural beauty, aesthetic character, and livability of the community.

B. Notwithstanding the above-stated purposes, nothing in this chapter is intended to or shall be deemed to create a duty of the city to protect or promote the interests of any particular person or class of persons. Further, the existence of these regulations or any failure, refusal, or omission of the city to enforce any provision in this chapter is not intended to prevent, supplant, or affect the right of any person affected by the clearing, grading, filling, and/or drainage operations of another to invoke such private remedies as may be available against such other persons. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 1, 1993).

19.10.020 Definitions.

For the purposes of this chapter, the following definitions describe the meaning of the terms used:

1. “Accelerated erosion” means any increase over the rate of natural erosion as a result of land-disturbing activity.

2. “Approval” means approval by the city engineer or CED director.

3. “Brushing” means the practice of removing ground cover to create better visibility on a property for purposes such as marketing or surveying of said property, controlling fires, preserving existing open space, and eliminating noxious weeds and other nuisance vegetation.

4. “Buffer zone” means a parcel or strip of land that is required to permanently remain in an undisturbed and untouched condition and within which no building, clearing, grading, or filling is permitted, except for minor maintenance necessary to protect life and property.

5. “Caliper” means the American Association of Nurserymen standard for trunk measurement of nursery stock. Caliper of the trunk shall be the trunk diameter measured six inches above the ground for up to and including four-inch caliper size and 12 inches above the ground for larger sizes. “Caliper” also refers to landscape planted trees and in the case of North Bend standards is the primary measurement for deciduous trees.

6. “Clearing” means the removal of trees, brush, grass, ground cover, or other vegetative matter from a site which exposes the earth’s surface on the site or results in the loss of trees or forested areas.

7. “Clearing and grading permit” means the written permission of the city to the applicant to proceed with the act of clearing, grading, filling and/or drainage which could disturb the land surface.

8. “Cluster” means a group of three or more trees with overlapping or touching crowns.

9. Critical Root Zone or CRZ. The critical root zone of a tree is established on the basis of the trunk diameter. The CRZ is a circular area which has a radius of 12 inches to every inch diameter of trunk measured at four and one-half feet above grade. Root systems will vary both in depth and spread depending on size of tree, soils, water table, species and other factors. However, this CRZ description is generally accepted in the tree industry. Protecting this entire area should result in no adverse impact to the tree.

The below CRZ drawing has been further differentiated into the “perimeter” (PCRZ) and ICRZ to help define potential impact and required post care. Generally, the full PCRZ is considered the optimum amount of root protection to a tree. As one encroaches into the PCRZ, but not into the “interior CRZ,” the greater post care the tree would require to remain alive and stable. The “interior CRZ” is half the radius of the full PCRZ. Disturbance into the ICRZ could destabilize or cause the tree to decline.

The absolute maximum disturbance allowed should leave the “interior CRZ” undisturbed if the tree is to have any chance of survival. This “interior CRZ” would approximately equal the size of a root ball needed to transplant this tree which in turn would require extensive post care and possibly guying. Post care treatment includes but may not be limited to: regular irrigation, misting, root treatment with special root hormones, mulching, guying and monitoring for several years.

10. “Crown” means the area of a tree containing leaf- or needle-bearing branches.

11. “Crown clean” or “CC” means the selective removal of dead, dying, damaged and diseased portions of trees.

12. “Crown raise” or “CR” means to selectively remove a lower portion of the crown to allow physical or visual clearance.

13. “Crown thin” or “CT” means the selective removal of limbs with foliage from throughout the crown to allow more sunlight or airflow. Percent of removal depends on tree age and vigor but generally should not exceed 20 percent in one year.

14. “Crown reduction” or “CRD” means the selective cutting back of long or heavy limbs to reduce end weight and the potential for failure. Percent of removal depends on tree age and vigor.

15. “DBH” means the diameter at breast height; the diameter of the trunk measured 54 inches (four and one-half feet) above grade.

16. “Development” means any manmade alteration of land, including but not limited to: buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations, storage of equipment and materials, and subdivision of land. For properties within the floodplain, development also includes the removal of more than five percent of the native vegetation on the property, or alteration of natural site characteristics.

17. “Dripline” means the distance from the tree trunk that is equal to the furthest extent of the tree’s crown.

18. “Engineer” means a professional civil engineer, licensed by and in good standing in the state of Washington.

19. “Environmentally sensitive lands” include, but are not limited to, lands identified as environmentally sensitive or critical areas by the city in accordance with the provisions of the State Environmental Policy Act and the Growth Management Act.

20. “Erosion” means the wearing away of the land or ground surface by the action of wind, water, ice, gravity, or any combination thereof.

21. “Exempt” refers to special circumstances as defined in NBMC 19.10.040.

22. “Exceptional tree” means any viable tree which, because of its unique combination of size and species, age, location, and health, is worthy of long-term retention, as determined by the city’s qualified arborist. To be considered exceptional, a tree must meet the following criteria:

a. The tree must be included in and have a diameter at breast height (DBH) that is equal to or greater than the threshold diameters listed below;

b. The tree shall exhibit healthful vigor for its age and species;

c. The tree shall not be considered a significant risk in regard to existing utilities and structures as evaluated per the tree risk assessment detailed in NBMC 19.10.093;

d. The tree shall have no visual structural defects that cannot be mitigated by one or more measures outlined in the International Society of Arboriculture Best Management Practices; and

e. If retained under current tree growth conditions, the tree can be expected to remain viable with reasonable and prudent management and care.

f. A Homestead Tree. Any tree that apparently was planted on a property many years ago that may have a unique, character, size or form as determined by the applicant and city arborist and approved by the CED director.

Exceptional Tree Species and Their Threshold Diameters
Species	Threshold Diameter (DBH)
Bigleaf Maple – Acer macrophyllum	30 inches
Douglas Fir – Pseudotsuga menziesii	30 inches
Sitka Spruce – Picea sitchensis	30 inches
Western Hemlock – Tsuga heterophylla	24 inches
Western Red Cedar – Thuja plicata	30 inches
Giant Sequoia – Sequoiadendron giganteum	30 inches
Pacific Dogwood – Cornus nuttallii	12 inches
Grand Fir – Abies grandis	24 inches
Shore Pine – Pinus contorta ‘contorta’ or White Pine – Pinus strobus	12 inches

23. “Filling” means the act of transporting or placing (by any manner or mechanism) fill material from, to, or on any soil surface, natural vegetative covering of soil surface, or fill material (including temporary stockpile of material).

24. “Grading” means any act which changes the grade or elevation of the ground surface and for the purposes of this chapter also includes the excavation and removal of earth material.

25. “Ground cover” means all types of vegetation other than trees.

26. “Hazard tree” means a tree that has a disease and/or defect which causes it to have a high probability of failure. This can include root rot, a significantly decayed trunk, or two stems, with significant branch inclusions, previous failure of a crown, or other defect as identified by an arborist. The determination should include the likelihood of failure in combination with the severity of consequences. A branch inclusion is a visible seam just below where two branches or co-dominant leaders grow together where bark may become embedded in the crotch between the two, causing a weak structure.

27. “Impact” means a condition or activity that affects a part of a tree including the trunk, branches, and critical root zone.

28. “Land-disturbing activity” means any use of the land that results in change in the natural cover or topography or may cause or contribute to erosion or sedimentation.

29. “Limits of disturbance” means the boundary between the area of minimum protection around a tree and the allowable site disturbance as determined by the requirements of this chapter.

30. “Multistemmed tree” means a tree that has one stem at ground level but that splits into two or more stems above ground level. Trees whose stems diverge below ground level are considered separate trees. Where a tree splits into several trunks below typical DBH, the DBH for the tree is the square root of the sum of the DBH for each individual stem squared (example with three stems: DBH = square root of [(stem 1)2 + (stem 2)2 + (stem 3)2]).

31. “Normal maintenance” means regular pruning of trees and/or ground cover to protect property and/or to maintain healthy growth.

32. “Nuisance tree” means a tree that meets any of the following criteria:

a. Is causing obvious physical damage to private or public structures, including but not limited to: sidewalk, curb, road, driveway, parking lot, building foundation, utilities or roof; or

b. Has sustained irreversible damage from past maintenance practices; or

c. Causes increased maintenance or potential safety hazard such as from thorns, roots or fruit.

33. “Qualified professional arborist” means an individual who is a certified professional with academic and field experience that makes them a recognized expert in urban forestry and tree protection during development. A qualified professional arborist shall be a member of the International Society of Arboriculture (ISA) and/or the Association of Consulting Arborists and shall have specific experience with urban tree management in the state of Washington. Additionally, a qualified professional arborist identified to represent the city shall be a certified arborist or board certified master arborist, as certified by the International Society of Arboriculture, and be ISA Tree Risk Assessment Qualified and have the necessary training and experience to use and apply the appraisal methodology prescribed in the current edition of the ISA Plant Appraisal Guide.

34. “Sedimentation” means the process of depositing of soil and organic particles displaced, transported, and deposited by erosive processes.

35. “Significantly wooded site” is a subject property that has a number of trees with crowns that cover at least 40 percent of the property.

36. “Site disturbance” means any development, construction, or related operation that could alter the subject property, including, but not limited to, tree or tree stump removal, road, driveway or building construction, installation of utilities, or grading.

37. “Site perimeter” means the area of the subject property that is 10 feet from the property line.

38. “Specimen tree” means a viable tree that is considered in very good to excellent health and free of major defects, as determined by the city’s qualified professional.

39. “Topping” is the practice of removing whole tops of trees or large branches and/or trunks from the tops of trees, leaving stubs or lateral branches that are too small to assume the role of a terminal leader. Tree topping is not considered pruning. Pruning shall conform to the most recent version of the American National Standards Institute (ANSI) A300 Part 1 – 2001 pruning standards or as outlined in an approved utility vegetation management plan.

40. “Tree” or “trees” means any living woody plant characterized by one main stem or trunk and many branches and having a diameter of four inches or more measured 24 inches above ground level.

41. “Tree protection plan” or “TPP” means a plan that identifies all protected trees and all work proposed around and near those trees. The TPP shall describe all locations and methods of tree protection that are proposed to mitigate for the work to be done on site. The developer shall hire a qualified professional arborist to assess trees to retain, tag trees and document information, describe the site and conditions and make recommendations, provide tree protection guidelines, provide this plan, review implementation and to be on site during working within the interior CRZ of retained trees. The developer’s qualified professional arborist shall review, approve, monitor and document the work to confirm that tree protection methods are being followed and report compliance to the city.

42. “Tree removal” means the removal of a tree, through either direct or indirect actions, including but not limited to: (a) clearing, damaging or poisoning resulting in an unhealthy or dead tree; (b) removal of at least half of the live crown; or (c) damage to roots or trunk that is likely to destroy the tree’s structural integrity.

43. “Tree unit credit” or “TUC” is the unit of measure given to different size existing or planted viable trees that are required to meet minimum standards of lot tree coverage per 1,000 square feet. Tree unit credits are derived from viable trees on the site of at least four inches DBH, other than red alder, holly, poplar or any other invasive tree.

44. “Thinning” means the evenly spaced noncommercial removal of up to 40 percent of trees and woody shrubs.

45. “Timber harvesting” means the commercial harvesting of trees.

46. “Viable tree” means a tree that a qualified professional has determined to be in good health, with a low risk of failure due to structural defects, is relatively windfirm if isolated or remains as part of a grove, and is a species that is suitable for its location.

47. “Wildlife snag” means the remaining trunk of a dying, diseased, or dangerous tree that is reduced in height and stripped of all live branches.

48. “Windfirm” means a condition of a tree in which it can withstand moderate storm winds. (Ord. 1663 § 1, 2018: Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 2, 1993).

19.10.030 Clearing and grading permit required.

A. No person, corporation, or other legal entity shall make changes or cause changes to be made in the surface of any land by clearing, grading, filling, or drainage alteration in the city without a valid clearing and grading permit from the city engineer, or without a written permit exemption as authorized by NBMC 19.10.040.

B. Permits are not transferable, unless approved in writing by the city engineer. The transfer will only be approved when the new applicant has demonstrated that it can and has complied with the conditions of the permit.

C. A clearing and grading permit is required for the removal of any significant tree(s). The application materials and requirements for significant tree removal under NBMC 19.10.092 shall also be included in the clearing and grading permit. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 3, 1993).

19.10.040 Permit exemptions.

There are two types of exemptions from the provisions of this chapter: (1) written exemptions; and (2) categorical exemptions.

A. Written Exemptions. Written permit exemptions shall be issued by the city engineer or CED director. The following shall be exempt from the permit requirements of this chapter:

1. Land clearing, grading, filling, sandbagging, diking, ditching, or similar work during or after periods of extreme weather or other emergency conditions which have created situations such as flooding or high fire danger that present an immediate danger to life or property;

2. Land clearing necessitated by order of the city council related to the abatement of a public nuisance, where the work is administered by the city;

3. Up to 50 yards of fill, unless the fill is to be placed in the root protection zone of a tree, in an area subject to the jurisdiction of the critical areas regulations, as codified in Chapters 14.05 through 14.12 NBMC, in the 100-year floodplain or floodway as defined in Chapter 14.12 NBMC, or in a storm drainage course;

4. The clearing by a public agency or a franchised utility within a public right-of-way or upon an easement, for the purpose of installing and maintaining water lines, storm sewer lines, sanitary sewer lines, electrical power line, television cable, or communication lines, or for street construction or maintenance, subject to the requirements of any applicable franchise agreement; and

B. Categorical Exemptions. No permit or written permit exemption is required for the following actions:

1. Hazard, dead, or dying trees can be removed after a letter of request documenting the situation is submitted to the city by a property owner. In the event that a tree is not obviously dead, dying, or a hazard, a letter from a qualified professional arborist describing the condition of the tree shall be submitted with the letter of request;

2. Emergency Tree Removal. Any tree on private property that poses an imminent threat to life or property may be removed without first obtaining a permit/city approval. The property owner and/or developer shall contact the city within seven days of removal to provide evidence of threat for approval of exemption. The city retains the right to dispute the emergency and require that the party obtain a permit and/or require that replacement trees/vegetation be replanted as mitigation;

3. Utility Management. Removal of private trees by the city and/or utility provider in situations involving immediate danger to life or property, or imminent interruption of services provided by a utility;

4. Commercial Nurseries or Tree Farms. Removal of trees that are being grown to be sold as Christmas or landscape trees;

5. Existing single-family lot homeowners are exempt from needing a clearing and grading permit for up to 10 trees per year unless the tree is within a designated NGPE, or is likely to be within 150 feet of a critical area per NBMC Title 14;

6. Normal maintenance of trees and ground cover;

7. Cemetery graves;

8. The removal of up to 5,000 square feet of brush, grass, or other similar ground cover for the purpose of landscaping or gardening purposes; and

9. Farming and agricultural uses for existing operations or upon land already cleared for agricultural uses; provided, however, no viable tree larger than four inches DBH may be removed under this categorical exemption. (Ord. 1663 § 2, 2018: Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 4, 1993).

19.10.050 Clearing and grading permit application.

An application for a clearing and grading permit shall be submitted on a city form at the same time as a complete application for other land development activity as defined in NBMC 20.09.020(A) or at the same time as submitting a building permit application, whichever shall sooner occur. The application shall contain the name, address and phone number for the applicant and all persons having an ownership interest in the property, along with a brief statement of the proposed land use and the reason that the requested filling, grading and/or clearing is necessary to accomplish the applicant’s intended purpose. The application shall not be deemed complete until the city receives the completed application form, the information required by NBMC 19.10.060, and the appropriate fee and deposit as required by NBMC 19.10.130. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 6, 1993).

19.10.060 Plans and specifications.

A. Each application shall be accompanied by a minimum of three sets of plans and specifications, including calculations. The plans and specifications shall be prepared by a licensed professional engineer who shall affix his professional stamp and his signature to each set. The city engineer may waive this requirement if he enters written findings in the city records that he has inspected the site, and finds that due to the uncomplicated nature of the proposed work and necessary drawings the expertise of a professional engineer is not needed. The plans and specifications shall include the following information:

1. The name, address and phone number of the person or firm preparing the plans.

2. An accurate plan of the entire site as it exists at the time of the application, which includes:

a. All property lines with bearings and distances shown;

b. Contours over the entire site with two-foot contour intervals with five-foot intervals on slopes greater than 15 percent, unless otherwise approved. Contours shall extend a minimum of 20 feet beyond the property boundaries when grading is proposed to the property line;

c. The date, basis, and datum of the contours, which shall be referenced to the city’s network of benchmarks, if applicable;

d. A graphic representation of existing vegetation on the site designated by its common names, the amount of bare ground, and the amount and type of impervious material (rock and artificial);

e. The location of all existing drainage facilities, natural and manmade;

f. The location and estimated capacity of any areas which impound surface water;

g. The location and estimated discharge of all visible springs;

h. The location of all structures, utilities, and their appurtenances, including structures and utilities on adjacent properties when such information is reasonably available. Said improvement locations shall also be staked on site to enable the city to review improvement locations and their relationship to the site and existing vegetation;

i. Date, north arrow, and adequate scale as approved by the city engineer on all maps and plans;

j. Identification of and mitigation measures for on-site areas which are subject to severe erosion, and off-site areas which are especially vulnerable to damage from erosion and/or sedimentation;

k. Identification of all critical areas in accordance with Chapters 14.05 through 14.12 NBMC;

l. A complete environmental checklist, or, if a categorical exemption is claimed, a brief statement setting forth the basis for the claimed exemption;

m. Identification of all areas regulated by the provisions of Chapter 14.20 NBMC;

n. Location, type, size and condition of trees and ground cover on site and a general identification of trees and ground cover which are proposed to be removed;

o. A significant tree inventory consistent with NBMC 19.10.093 for the removal of more than eight significant trees. A replanting plan shall be provided and approved by the city prior to removal of any significant trees; and

p. Location of the current floodway and floodplain as adopted by the city, if applicable.

3. The proposed work schedule, which details the following:

a. Sequence for clearing, grading, filling, drainage alteration, and other land-disturbing activities;

b. On-site soil or earth material storage locations and source of import materials, and location of the site where soils will be disposed;

c. Schedule for installation and removal of all interim erosion and sediment control measures, including vegetative measures;

d. Schedule for construction of final improvements, if any;

e. Schedule for the installation of required permanent erosion and sediment control devices; and

f. An outline of the methods to be used in clearing vegetation and in storing and disposing of the cleared vegetative matter.

4. An accurate finished grading plan of the entire site as it would appear after the completion of work covered by the permit, showing the following:

a. The finished contours achieved by grading (at the same intervals as the existing contours), including the quantities of cut, fill, import, and export;

b. The boundaries of all areas to remain undisturbed, and identification and the location of all other vegetation shown on the plan that will remain after the completion of work;

c. Drainage and related facilities to be constructed with and as a part of the proposed work;

d. Boundaries of all areas where surface water runoff will be retained, detained, or infiltrated;

e. The method for discharging surface water off-site, including the provisions required to control the velocity and direction of discharge to protect downstream properties;

f. Location of proposed improvements, including building setback lines, approximate limits of cuts and fills, final grades, structures, roads, driveways, utilities, and storm drainage facilities. Said improvement locations shall also be staked on site to enable the city’s arborist and/or engineer to review improvement locations and their relationship to the site and existing vegetation;

g. The location of building setback lines, and approximate limits of cuts and fills, including but not limited to foundations, retaining walls, and driveways;

h. Location and dimensions of buffer zones and other areas to be maintained or established;

i. The location and description of proposed erosion and sedimentation control devices or structures and schedule of maintenance; and

j. Off-site grading shall be noted on the plans, and a dated letter of permission from the property owner of the land affected shall be provided and noted on the plans.

B. The city engineer may require less information than is set forth in this section if he determines the project is of such a nature and magnitude that less detail is adequate to protect the public health and safety; provided, however, the engineer may not waive the requirement for the submittal of an environmental checklist if a checklist is required by the provisions of Chapter 14.04 NBMC, the submittal of information regarding the location of existing trees and vegetation and the identification of trees and vegetation to be removed, nor submittal of information necessary to evaluate the proposal in accordance with the requirements of Chapters 14.05 through 14.12 and 14.20 NBMC. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 7, 1993).

19.10.070 Additional application information.

The city engineer may require the applicant to submit additional information when he finds the submitted plans and specifications and associated information are not clear enough to allow for an adequate determination, or when special conditions are found to exist which require specific explanation. This additional information may include, but is not limited to, the following:

A. Hydrologic and hydraulic computations of expected storm runoff entering and leaving the site for pre- and post-development conditions;

B. Engineering geology and soils reports as needed for hydrology, hydraulics, and erosion control design;

C. Erosion and sediment control plan and supporting calculations;

D. An engineer’s cost estimate of the drainage facilities and final erosion and sediment control when such information is necessary for bonding purposes;

E. Inspection and maintenance agreement;

F. Letters of Permission. Off-site grading shall be supported by a dated letter of permission from the affected property owner(s); and

G. A copy of the hydraulic permit application issued by the Washington State Department of Fish and Wildlife, if it is required. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 8, 1993).

19.10.080 Review criteria.

The city engineer shall review the permit application for compliance with all city ordinances, adopted standards, and requested additional data. The CED director shall review the project for compliance with the city’s comprehensive plans and development regulations. Where the project involves the removal of significant trees, then it shall also be reviewed by the director and/or his designee. This shall be in addition to any reviews required by other departments under SEPA, shorelines management ordinance, design, review or other city codes. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 9, 1993).

19.10.090 Standards.

No land-disturbing activity subject to the control of this chapter shall be undertaken except in accordance with the following mandatory standards:

A. Protection of Property. Land-disturbing activities shall be conducted in such a way that all reasonable measures are taken to protect all public and private property from damage caused by such activities.

B. Critical Areas Buffer Zone. No land-disturbing activity shall be permitted in an approved critical area or critical area buffer zone, except as otherwise allowed by applicable laws and permits.

C. Graded Slopes and Fills. The angle for graded slopes and fills shall be no greater than the angle which can be retained by vegetative cover or other adequate erosion control devices or structures.

D. Ground Cover. No land-disturbing activity shall be undertaken until installation of sufficient erosion and sediment control devices to retain the sediment generated by the activity within the boundaries of the tract during construction upon and development of said tract. Plantings or a permanent ground cover shall be provided immediately after completion of grading to sufficiently restrain erosion; provided, however, the CED director may extend the time for planting the permanent ground cover or planting if weather conditions do not permit immediate planting. Erosion control practices shall conform to the current edition of the King County Surface Water Design Manual specifications, unless other standards set forth in this chapter are more stringent, then the standards of this chapter shall control.

E. Use of Vegetative Measures. Vegetation measures using native plants shall be used for erosion and sediment control wherever feasible, rather than structural measures such as pipes, structures, or other devices.

F. Environmentally Critical Areas. Activity within environmentally critical areas shall be in compliance with Chapters 14.05 through 14.12 NBMC and shall be subject to the review of the CED director.

G. Preservation of Existing Vegetation. The proposal shall contain reasonable provisions for the preservation of natural land and water features, vegetation, including significant individual tree specimens or groups of trees, drainage and other indigenous natural features on the site. Natural vegetation shall not be removed from proposed landscape areas, unless a revegetation plan is first approved by the CED director.

H. Protection of Root Zones. The size of landscape or buffer areas shall be increased to the extent necessary to protect the root zones of all trees that are to be preserved. Land clearing machinery shall be kept outside of the root zone of any trees designated for retention. Damaging of trees designed for retention by scarring, backfilling of trees with heavy soil or compaction of soil over the root zone or any other activities that may cause damage of roots, trunks or surrounding ground cover shall be considered violations of this chapter.

I. Minimizing Clearing. No clearing and grading activity shall take place until necessary to construct the approved improvements, such as streets, roads, utilities and structures, and then only to the extent necessary to provide for the construction of the action approved through the permit and said areas have been surveyed and staked to enable city staff to confirm locations.

J. Protection of Artifacts. The protection of cultural and anthropological or historical artifacts found on the site shall be encouraged by allowing their removal prior to land-disturbing activity, or the protection of the appropriate section of the site by preserving it in a nondisturbed state to the extent consistent with the reasonable use of the property as a whole.

K. Compliance with International Building Code. The provisions of the International Building Code relating to cuts, fills, setbacks, drainage, terracing and erosion control shall be met.

L. Soil Stability. The clearing shall not create or contribute to landslides, accelerated soil creep, settlement and subsidence or hazards associated with strong ground motion and soil liquefaction.

M. Preservation of Significant Features. The proposal shall contain reasonable provisions for the preservation of natural land and water features, vegetation, including significant individual tree specimens or groups of trees, drainage and other indigenous natural features on the site.

N. Erosion and Flooding. Clearing, grading and filling shall not create or contribute to flooding, erosion or increased turbidity, siltation or other forms of pollution in a watercourse.

O. Floodway. No filling within the floodway unless there is compliance with Chapter 14.12 NBMC dealing with floodplain management. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 10, 1993).

19.10.091 Tree retention purpose.

The purpose of this section is to prevent the excessive removal of trees and associated vegetation for the multiple benefits provided to North Bend’s urban environment and its citizens. Trees along the perimeter of lots and parcels and along the frontage are of the highest priority to retain and should be considered first. Removal of noninvasive trees and vegetation in urban areas has resulted in the loss to the public of these beneficial functions. The purpose of this chapter is to establish a process and standards to provide for the protection, preservation, replacement, proper maintenance, and use of trees in the city of North Bend. In addition to NBMC 19.10.010(A)(9), the intent of tree regulations is to:

A. Maintain and enhance canopy coverage provided by trees for their functions as identified in NBMC 19.10.010;

B. Preserve and enhance the city of North Bend’s environmental, economic, and community character with mature landscapes;

C. Promote site planning, building, and development practices that work to avoid removal or destruction of trees and vegetation, that avoid disturbance to the city’s natural vegetation, and that provide landscaping to buffer the effects of built and paved areas;

D. Mitigate the impacts of tree removal in land development through on- and off-site tree replacement with the goals of significantly minimizing loss and enhancing the quality and quantity of North Bend’s tree canopy;

E. Require tree retention efforts and consider flexibility with respect to certain other development requirements;

F. Implement the goals and objectives of the city’s comprehensive plan; and

G. Ensure the protection of the many benefits that healthy trees and vegetation contribute to North Bend’s quality of life by:

1. Minimizing the adverse impacts of land disturbing activities and impervious surfaces such as runoff, soil erosion, land instability, sedimentation and pollution of waterways, thus reducing the public and private costs for stormwater control/treatment and utility maintenance;

2. Improving the air quality by absorbing air pollutants, mitigating the urban heat island effect, assimilating carbon dioxide and generating oxygen, and decreasing the impacts of climate change;

3. Reducing the effects of excessive noise pollution;

4. Providing cost-effective protection from severe weather conditions with cooling effects in the summer months and insulating effects in winter;

5. Providing visual relief and screening buffers;

6. Providing recreational benefits;

7. Providing habitat, cover, food supply and corridors for a diversity of fish and wildlife;

8. Providing economic benefit by enhancing local property values and contributing to the region’s natural beauty, aesthetic character, and livability of the community; and

9. Providing human health benefits for the citizens of North Bend, including improvements in air quality and mental health. (Ord. 1663 § 3, 2018: Ord. 1360 § 1 Exh. A (part), 2009).

19.10.092 Development sites – Tree density requirements.

A. Introduction. A minimum tree density approach based on tree unit credits shall be used to retain a minimum number of viable trees with development activity. Unless otherwise exempted by this chapter, the requirement to meet a minimum tree density applies to all development activities, including: new single-family homes; residential subdivisions and short subdivisions; mixed-use developments; commercial and industrial developments; municipal and institutional developments; and utility developments.

1. Tree retention or a combination of tree retention and supplemental planting shall be required to meet or exceed the minimum tree density required by this chapter.

2. A tree density for existing trees to be retained is calculated to determine if supplemental trees are required in order to meet the minimum tree density for the entire site.

3. Where supplemental trees are required, a minimum size that may be planted to meet the required tree density is established.

4. Location prioritization is established by this chapter for both retained trees and supplemental trees.

5. If a development site falls below the minimum density with existing trees, supplemental planting is required.

B. Tree Density Requirement. The required minimum tree density varies by zoning designation. The minimum tree credits per acre are provided in Table 19.10.092-1.

1. The tree density may consist of existing trees, supplemental trees, or a combination of existing and supplemental trees pursuant to the standards of this section.

2. Existing trees transplanted to an area on the same site shall not count toward the required density unless approved by the director based on transplant specifications provided by a qualified professional arborist that will ensure a good probability for survival.

3. Tree density credit requirements shall be based on the full site area, excluding wetlands, streams, and/or landslide hazard areas and associated critical areas buffers.

C. Tree Density Goal. Even if the developer meets the minimum tree density requirements, all other viable trees that can be retained without significant impact to the proposed development shall be retained per the same tree protection standards in NBMC 19.10.095.

Table 19.10.092-1

Required Minimum Tree Credits
Land Use Type	Intensity	Required Minimum Tree Credits per 1,000 square feet
Single-Family *If lots are less than 7,500 sf and/or the proposal is a short subdivision in the DC or CR zone the required credit may be reduced in half.	Low/Moderate	1
Multifamily	Moderate	.75
Industrial	High	.5
Commercial
Public Facilities
Downtown Commercial	High	.25

D. Tree Density Calculation. For the purpose of calculating required minimum tree density, public right-of-way, areas to be dedicated as public right-of-way, and vehicular access easements not included as lot area within an improved plat shall be excluded from the area used for calculation of tree density. Critical areas and associated buffers to be maintained by the development proposal shall be excluded from the area used for calculation of tree density, but supplemental plantings may occur in those areas. Trees otherwise required by the code are also excluded from the area used for calculation of tree density.

E. Tree Density Calculation for Existing Trees.

1. Diameter at breast height (DBH) of the tree shall be measured in inches.

2. The tree credit value that corresponds with DBH values shall be found in Table 19.10.092-2. These credits shall be multiplied by one and one-half for existing native conifers (or other conifer species as approved by the director).

3. Retained red alder and cottonwood trees shall not count toward the tree density requirement.

4. Existing trees located in critical areas and those protected within the native growth protection area tract or easement to be established by the proposal shall not count toward the tree density requirement.

5. In calculating tree density credits, tree credits may be rounded up to the next whole number from a one-half or greater value.

Table 19.10.092-2

Tree Density Credits for Existing Trees or Planted Trees
DBH	Tree Credits
Planted 8' Conifer*, or 2" cal. Deciduous	1
4" – < 8"	1
8" – < 12"	2
12" – < 24"	4
24" or >	6
Exceptional Tree	1.5 x Tree Credit above
*No arborvitae or similar

Example: An 8,000-square-foot lot would need 8 tree credits (8,000/43,560 = 0.183 x 43 = 7.8 or 8). The tree density on the lot could be retained by two existing 12-inch to 24-inch trees (less if a conifer is present) or by a combination of planting on the lot and within other areas if part of a development.

Example: A two-acre commercial site would need 44 tree credits (87,120 square feet/1,000 = 87.12 x .5 = 43.56 or 44). The tree density on the lot could be retained by a combination of four 24-inch or greater trees to equal 24 credits, plus five 12-inch to 24-inch trees equal 20 for a total of 44.

F. Supplemental Trees Planted to Meet Minimum Density Requirement.

1. For sites with existing tree canopy, a minimum percentage of tree credits shall be from retained trees; the remainder may be from retained trees or supplemental plantings. In order to ensure that existing tree canopy is appropriately retained as new development activities occur, 50 percent of required tree density credits must be achieved through retention of existing trees.

2. For sites where existing (predevelopment) tree density is not sufficient to meet tree density minimums, retention of existing identified trees consistent with NBMC 19.10.093 shall be required and a top priority of the site design. Additional tree density credits shall be achieved through supplemental planting on site.

3. For sites where existing tree density is 25 percent or less of the required tree credits per 1,000 square feet the required supplemental trees can be reduced at the sole discretion of the director approval on a case by case basis.

4. The CED director may allow for removal of trees beyond these retention standards only when the applicant demonstrates that the proposed activity requiring additional removal of existing trees is the only reasonable alternative that will accomplish the applicant’s objectives, and only when supplemental trees are provided to meet tree density credit requirements. In such instances, the city may require additional on-site supplemental tree planting and/or a fee in lieu of additional supplemental tree planting to achieve higher tree density credit than the minimum required by Table 19.10.092-1.

5. Minimum Size and Tree Density Value for Supplemental Trees. The required minimum size of a supplemental tree worth one-half tree credit shall be eight feet tall for native or other conifers and two-inch caliper for deciduous or broad-leaf evergreen trees. The installation and maintenance shall be pursuant to Chapter 18.18 NBMC, Landscaping Regulations. (Ord. 1663 § 4, 2018).¹

19.10.093 Development sites – Submittal requirements and priorities for tree retention.

A. For all development, a tree retention plan is required to be submitted with the initial land use application and/or clearing and grading permit application. The qualified professional arborist and surveyor shall work together to identify, tag, and survey the minimum number of trees to meet the tree unit credit threshold. The city shall be involved in the early planning stages to assist in as much tree preservation as possible. The tree retention report shall include the following:

1. Site characterization of existing tree conditions. This characterization shall include:

a. A qualitative description of site forest conditions (stand age, dominant species, condition);

b. Identification of site areas with groves of trees;

c. Identification and description of tree and forest conditions adjacent to any on-site critical areas and buffers; and

d. Description and rationale for the retention of trees used to meet the minimum tree unit credits.

2. Initial calculation of trees that meet the minimum tree credits required for the proposed development that must be achieved through tree retention, consistent with tree density requirements of Table 19.10.092-1.

3. Proposed identification of areas for required tree retention, including rational and documentation of consistency with subsection D of this section, Tree Priority for Retention/Site Design.

4. Tree survey. Included with the retention proposal that meets the tree unit credit minimum, a survey of existing site tree conditions shall be submitted that sets out the following:

a. Engineered professional survey location point for the following trees:

i. Every tree on the site that is used towards meeting the minimum density requirements;

ii. Any additional trees retained and protected on or near lots in relation to clearing and grading requirements;

iii. Trees located within the outer 15 feet of on-site critical area buffers; and

iv. Off-site trees located on adjacent properties that have a critical root zone (CRZ) extending onto the property under application. Off-site trees shall not be counted toward the minimum tree unit credit.

b. The above surveyed trees shall include tree ID number, size (DBH), species, location, and risk assessment.

c. Site map with tree ID number, species, diameter at four and one-half feet above grade for all trees proposed for retention, including any identified exceptional trees, and a tree assessment matrix with the description of each tree’s health and viability. Evaluation should include identification of trees that are not viable for retention, based on health, high risk of failure due to structure, defects, unavoidable isolation (windfirmness), or suitability of species, that are in areas that are not to be cleared by the proposed development but pose a risk to them.

d. Location of limits of disturbance relative to the CRZ around all trees proposed for retention and any special instructions for work within that protection area (hand-digging, tunneling, root pruning, maximum grade change). Adjusting fence locations to allow site work within the CRZ must be approved by the applicant’s arborist and the community and economic development director, and must be consistent with all requirements of NBMC 19.10.095, Tree protection – Construction of developments.

5. Supplemental tree planting plan. Proposed location and species of supplemental trees to be planted when required meeting the TUC minimum standards and including planting and maintenance specifications. This may be provided on the site landscape plan, so long as supplemental trees are identified separately from general landscape trees.

6. List of general tree protection guidelines that covers all potential impacts to retained trees, and methods and procedures for working around retained trees properly. Guidelines shall be consistent with all requirements of NBMC 19.10.095, Tree protection – Construction of developments.

7. Construction plan and schedule to include:

a. Preconstruction meeting with the applicant’s qualified professional arborist and the city to confirm retained trees, approve tree protection fence location, and agree on a monitoring schedule for contract compliance based on work near retained trees;

b. Requirements and methods of reporting to the city when significant work is required within the inner critical root zone (ICRZ) of any retained tree;

c. Confirmation that the tree protection fences remain in place throughout the project; and

d. Postconstruction meeting to confirm all trees have been retained, protected and planted per plan. Confirm postconstruction requirements for tree maintenance if needed.

B. The applicant shall be responsible for all costs associated with city review pursuant to the current taxes, rates, and fees schedule for tree plans and for the costs related to qualified professional arborist field visits, plan development, and plan review.

C. Trees proposed for retention shall be tagged and numbered for field verification at time of application submittal.

D. Tree Priority for Retention/Site Design. The site plan shall take into account retained trees and be designed in accordance with the following guidelines:

1. The incorporation of trees as a site amenity with a strong emphasis on tree protection. Forested sites should retain their forested look, value, and function after development, to the extent possible.

2. Trees should be protected within vegetated islands and stands rather than as individual, isolated trees scattered throughout the site. The city may refuse to consider individual, isolated trees as candidates for retention.

3. Trees to be retained must be healthy and windfirm as identified by a qualified professional arborist. In designing a development project, the applicant shall prepare the required tree retention plan with consideration of the following retention priorities. Priorities are not provided in an order of preference; successful tree retention shall meet as many of these priorities as are feasible, based on site conditions:

a. Tree groves and associated vegetation that are adjacent to areas that are proposed to be set aside as native growth protection areas (critical areas and protected buffers), such that retained trees provide additional habitat, hydrologic, water quality, and land stability functions;

b. Trees that will be located within a fish and wildlife habitat corridor, as established by the development proposal consistent with the North Bend comprehensive plan and critical area regulations;

c. Trees that are a part of a grove that extends into adjacent property, such as in a public park, open space, critical area buffer or otherwise preserved group of trees on adjacent private property. If trees must be removed in these situations, an adequate buffer of smaller trees may be required to be retained or planted on the edge of the remaining grove to help stabilize, maintain and protect the grove; and

d. Trees located in the site perimeter, especially when they provide a screening function between different land uses.

4. Building footprints, parking areas, roadways, utility corridors and other structures should be designed and located with consideration of tree protection opportunities.

5. The grading plan should be developed to accommodate existing trees and avoid alteration to grades around existing trees to be retained as part of a tree retention plan.

6. Required open space and recreational space are located and designed to protect existing stands of trees.

7. The CED director must approve any site plan proposal to remove an identified exceptional tree. Removal of an exceptional tree shall only be allowed as a last measure.

E. Protection of Exceptional Trees.

1. The following regulations shall apply to the protection and limited allowances for removal of exceptional trees, whether occurring as part of a development proposal or not. Removal of exceptional trees shall not be allowed, except in the following circumstances:

a. Where consistent with exemptions for hazard, dead, or dying trees and for emergency tree removal consistent with this chapter.

b. Where necessary for public roads and bridges within existing public rights-of-way and other essential public facilities.

c. Where necessary for access to development sites provided there are no feasible alternative alignments. Alternative access shall be pursued to the maximum extent feasible.

d. For all other proposed impacts to exceptional trees: where proposed, it is presumed that an alternative development proposal exists; activities and uses shall be prohibited unless the applicant can demonstrate that all on-site alternative designs that would avoid or result in less impacts to the exceptional trees, such as a reduction in the size, scope, configuration or density of the project, are not feasible. (Ord. 1663 § 5, 2018).²

19.10.094 Priorities for location of supplemental trees.

A. Supplemental Tree Location. In designing a development to meet the required minimum tree density, the site design and landscape plan shall be consistent with Chapter 18.18 NBMC. Supplemental trees shall be planted in the following order of priority:

1. On Site. The preferred locations for new trees are (in order of priority):

a. Adjacent to critical areas and associated buffers that are being designated as an NGPA tract or easement (required for wetlands, stream, and landslide hazard areas);

b. Within required common open spaces and recreation spaces as established by the approved site plan;

c. Adjacent to stormwater facilities as approved by public works;

d. Within other site common areas within the approved site plan;

e. Within site perimeter areas where contiguous with off-site existing forests; and

f. Up to 50 percent of the required minimum tree density as street trees and/or required perimeter landscape trees required in Chapter 18.18 NBMC may count as supplemental trees with sole approval by the CED director as determined on a case by case basis.

2. Off-Site Tree Replacement with Replacement Costs (Material Plus Labor) at the Applicant’s Expense.

a. Allowable sites for receiving off-site replacement plantings are city-owned properties or private open space which is permanently protected and maintained, such as an NGPA, park properties, street rights-of-way, and other properties as determined appropriate by the CED director.

b. All trees to be replaced off site shall meet the replacement standards of this chapter.

3. It is the city’s intent to preserve and replace trees on site, and only in rare cases and as a last resort a fee in lieu of tree replacement may be allowed, subject to approval by the CED director. The amount of fee in lieu required per tree unit credit is adopted in the city’s taxes, rates and fees schedule.

a. The amount of the fee shall cover the cost of a tree, installation (labor and equipment including staking, mulching), maintenance (including watering, warranty, and monitoring) for five years, and fund administration. Such costs shall be determined by the city as adopted in the taxes, rates and fees schedule.

b. The fee shall be paid to the city prior to final site plan or final plat approval, or the issuance of a tree removal permit or letter, whichever applies. (Ord. 1663 § 6, 2018).³

19.10.095 Tree protection – Construction of developments.

A. To ensure long-term viability of trees and tree stands identified for protection permit plans and construction activities shall comply with the following tree retention requirements:

1. All minimum required tree protection measures shall be shown on the tree retention plan and the site grading plan. Project site plans shall include a summary of the project-specific tree protection measures;

2. Tree protection barriers shall be installed along the outer edge and completely surround the critical root zone of trees to be protected prior to any land disturbance and shall remain until the CED director authorizes tree protection barrier removal;

3. Tree protection barriers shall be a minimum of six feet high constructed of chain link or similar material, subject to approval by the CED director. “Tree protection area” signs shall be posted visibly on all sides of the fenced areas no greater than 50 feet apart. On large project sites, the CED director may also require that signs requesting subcontractor cooperation and compliance with tree protection standards be posted at site entrances. Signs shall be a minimum of three feet by three feet in size with three-inch lettering;

4. Where tree protection areas are remote from areas of land disturbance, and where approved by the CED director, alternative forms of tree protection may be used in lieu of tree protection barriers; provided, that protected trees are completely surrounded with continuous flagging and are accompanied by “tree protection area” signs; and

5. Native understory trees, shrubs and other vegetation shall be protected within the designated tree protection area.

B. Construction Planning and Activities within the Critical Root Zone of Retained Trees.

1. To ensure that structures, utilities, and roadways are located an adequate distance from a protected tree and to allow adequate room for construction activities, the limits of construction clearing and grading shall generally be located no closer than the critical root zone of all protected trees. Work within that area shall be reviewed and approved by a qualified professional arborist and the CED director. The city may require third party review by a qualified professional arborist representing the city.

2. Except for structures proposed as a raised deck, bay window, or cantilevered or otherwise raised above the ground’s surface so as not to disrupt the tree’s roots, no structures shall be allowed within the interior critical root zone (ICRZ) without approval by a professional qualified arborist.

3. Sidewalks and utilities may be located within the critical root zone of a protected tree; provided, that construction methods and materials used will result in minimal disruption of the tree’s roots, and that additional measures for tree protection are proposed and approved which will ensure the long-term viability of the tree.

4. Grade within Critical Root Zone. The grade shall not be elevated or reduced within the critical root zone of trees to be preserved without the CED director’s authorization based on recommendations from a qualified professional arborist.

5. In limited instances based on site constraints, the CED director may allow construction limits or an alteration of grades within the critical root zone; provided, that the applicant submits an evaluation by an arborist which demonstrates that the proposed construction will not reduce the long-term viability of the tree. Generally, limited disturbance may be allowed inside the perimeter critical root zone, up to the inner critical root zone (ICRZ).

6. All construction activities, including, but not limited to, staging any materials, operating or parking equipment, or dumping concrete washout or other chemicals, shall be prohibited within the critical root zone of protected trees. During construction, no person shall attach any object to any tree designated for protection.

7. In addition to this subsection B, the CED director may require the following:

a. An evaluation by an arborist to determine if protective measures should be required beyond the critical root zone.

b. If equipment is authorized to operate within a tree protection area, the soil and critical root zone of a tree must be covered with mulch to a depth of at least 12 inches or with plywood, steel plates or similar material in order to protect roots and soil from potential damage caused by heavy equipment.

c. To minimize root damage wherever development is proposed and allowed within the critical root zone, hand or pneumatic tool excavation may be required to expose roots and cleanly sever the roots of trees to be retained. Never rip or shred roots with heavy equipment.

8. Preventative Measures. In addition to the above minimum tree protection measures, the applicant shall support tree protection efforts by employing, as appropriate, the following preventative measures, consistent with best management practices for maintaining the health of the trees:

a. Pruning of visible deadwood for health and safety on trees to be protected or transplanted;

b. Application of fertilizer to enhance the vigor of stressed trees;

c. Use of soil amendments and soil aeration in tree protection and planting areas;

d. Mulching over tree critical root zone areas;

e. Ensuring proper water availability during and immediately after construction; and

f. Selective thinning.

C. Upon completion of construction activities, a qualified professional arborist hired by the applicant shall be required to inspect all trees remaining on a site and provide a written report as to the status of such trees. Any protected tree found to be irreparably damaged, severely stressed or dying shall be replaced at a three tree to one tree ratio. The enforcement standards of NBMC 19.10.140 may also apply at the CED director’s discretion. The CED director will take into account the reasons for the damaged trees in determining if the fine set out in NBMC 19.10.140 applies.

D. Alternative Methods. The director may approve the use of alternative tree protection techniques if a protected tree will be protected to an equal or greater degree than through the techniques listed above.

E. Designation of Protected Trees.

1. The tree plan and any application and permit plans that cover such areas shall show all trees designated for protection/retention. These areas may be shown by labeling them as “protected trees” or “native growth protection areas” or such other designation as may be approved by the CED director. Protected vegetation, including protected trees, shall not be modified, harmed or removed except as provided in this chapter.

2. The CED director may require that protected trees be permanently preserved within a tract, easement or other permanent protective mechanism. When required, the location, purpose, and limitation of these protected areas shall be shown on the face of the deed, plat, site plan, or similar document and shall be recorded with the King County Department of Records and Elections. The recorded document shall include the requirement that the protected areas shall not be removed, amended or modified without the written approval of the city of North Bend.

F. Modification to Tree Retention Requirements. A modification to retention requirements may be granted at the discretion of the CED director based on the applicant’s ability to demonstrate the following:

1. Application of the requirements of this chapter will deny all reasonable economic use of the property; and

2. There is no other reasonable economic use with less impact; and

3. The proposed development does not pose an unreasonable threat to the public health, safety, or welfare, on or off the proposed site, and is consistent with the general purposes of this chapter; and

4. The alteration proposed is the minimum necessary to allow for reasonable economic use of the property.

The CED director shall grant an exception from the requirements of this chapter only to the minimum necessary extent to allow for reasonable economic use of the property. The CED director shall consider conditioning any exception from the requirements of this chapter upon compliance with any mitigation plan approved by the city or upon other conditions, such as a fee in lieu.

G. Additional Tree Protection. The CED director may approve an administrative adjustment of standards for bulk and dimensional relief per Chapter 18.25 NBMC in order to retain existing viable tree(s). (Ord. 1663 § 7, 2018).⁴

19.10.100 Conditions.

In granting any clearing and grading permit, the city engineer may attach conditions reasonably necessary to prevent erosion and sedimentation. The CED director may attach such conditions as are reasonably necessary to preserve and protect trees and vegetation pursuant to the standards set forth in this chapter. Such conditions may include, but are not limited to, installing walls, swales, drains, retention facilities, or other structures; planting appropriate vegetation; installing erosion and sediment control measures or devices; furnishing necessary letters of permission and/or easements; and specifying method of performing the work; requiring native vegetation protection areas and buffers, revegetation of disturbed areas, and enhancement of existing vegetated areas. Such items must be identified on the approved grading, erosion, and sediment control or other required plans. In addition, the following shall be conditions of all permits:

A. Notify the city 48 hours before commencing any land-disturbing activity;

B. Notify the city of completion of any control measures within 48 hours after their completion;

C. Obtain permission in writing from the city prior to modifying any of the plans;

D. Install all control measures as identified in the approved plans;

E. Maintain all road drainage systems, stormwater drainage systems, control measures, and other facilities identified in the plans;

F. Repair siltation or erosion damage to adjoining surfaces and drainage ways resulting from land developing or disturbing activities;

G. Inspect the erosion control construction measures at least once each week during construction after each rain of one-half-inch or more (over a 24-hour period), and immediately make any needed repairs;

H. Allow the city to enter the site for the purpose of inspecting compliance with the plans or for performing any work necessary to bring the site into compliance with the plans;

I. Keep an up-to-date, approved copy of the plans on the site; and

J. Ensure that all workmanship and materials are in accordance with city standards and the most recent edition of the Washington State Specifications for Road, Bridge, and Municipal Construction. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 12, 1993).

19.10.110 Maintenance responsibilities.

A. A maintenance schedule for constructed private facilities shall be developed and measures implemented pursuant to this chapter, and for landscaping maintenance pursuant to Chapter 18.18 NBMC. The schedule shall set forth the maintenance to be completed, the time period for completion, and who shall perform the maintenance. The schedule shall be included with all required plans and permits and shall be recorded by the property owner or agent with the county auditor so that maintenance responsibilities attach to the property and shall be the duty of the property owner(s). The city engineer or CED director may require a maintenance bond for the same length and under the same conditions as required for landscaping under the landscape code.

B. The responsible party (homeowners’ association or individual property owner) shall contract with a qualified professional for ongoing tree care including trees located in NGPE, open spaces, critical areas and public rights-of-way. All proposed work including but not limited to tree removal, pruning, and planting shall be submitted to the city arborist for approval. The submitted information shall reference the tree plan and confirm the retention and maintenance requirements. Best management practices performed by the qualified professional arborist are required. (Ord. 1663 § 8, 2018: Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 13, 1993).

19.10.120 Permit issuance – Expiration – Extension.

A. Clearing and grading is a development activity subject to the conditions of Chapters 20.01 through 20.06 and 20.09 NBMC. A clearing and grading permit shall be issued only after compliance with the requirements of this chapter and the deposit with the city finance director of permit fees for plan review, inspection, and related expenses as required in NBMC 19.10.130.

B. Any permit granted under this chapter shall expire one year from the date of issuance; provided, however, that the city engineer may set specific limits to the permit if it is advisable to do so. Upon a showing of good cause, a permit may be extended for up to one year upon such conditions as are necessary to carry out the intent of this chapter. (Ord. 1505 § 2 (part), 2013; Ord. 1426 § 4 (part), 2011; Ord. 1360 § 1 Exh. A (part), 2009; Ord. 1203 § 1 (part), 2003; Ord. 932 § 14, 1993).

19.10.130 Permit fees.

The applicant shall pay costs associated with a clearing and grading permit as set forth in Chapter 20.09 NBMC. For significant tree removal, a fee in lieu may be provided to the city if the applicant chooses not to replace the significant tree(s) on site. The applicant shall pay costs associated with the replacement of said trees and the clearing and grading permit as set forth in Chapter 20.09 NBMC. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 1237 § 17 (part), 2005: Ord. 932 § 15, 1993).

19.10.135 Urban growth area.

Areas within the urban growth area established pursuant to the Growth Management Act are anticipated to be developed within the next 10- to 20-year period. Because conversion of current timbered properties within the urban growth area can reasonably be expected, significant land clearing of such area needs to take place at the time of a valid land use application to properly coordinate preservation of trees within open spaces and buffers with actual development plans. To further the purposes of this chapter, timber harvesting and conversion of wooded lands within the urban growth area shall not be permitted until such time as a valid land use application for development is approved. Requests may be made for maintenance and thinning of existing timber stands to promote the overall health and growth of the stand until said stand is converted and harvested pursuant to plans provided within an approved, valid land use permit. Such request shall be reviewed by the city engineer and the CED director. Conditions shall ensure that proposed action shall improve the health and growth of the stand and preserve long-term alternatives for preservation of trees and meeting the goals of this chapter. (Ord. 1365 § 1, 2009: Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 16, 1993).

19.10.140 Construction and development – Development requirements for security and enforcement.

A. The city engineer or CED director may require the applicant to furnish security in the form of a bond, cash escrow account, an irrevocable letter of credit, or other security which may be acceptable to the city at its sole discretion, in an amount determined by the city engineer or CED director to be sufficient to reimburse the city if it should become necessary for the city to enter the property to correct hazardous conditions relating to soil stability, erosion, or environmental damage caused by failure to complete the work or improper action.

B. Trees designated for protection including mitigation plantings shall be mapped and bonded to be protected and retained through construction. Any of these trees that are removed after this designation through the approved development phase, other than being hazardous, shall be bonded. The bond shall be based on the appraised landscape value, applied by the city arborist, using the latest edition of the “Guide for Plant Appraisal” but in no case shall be less than $2,500 per tree.

C. Enforcement for Retained Trees and Supplemental Trees on New Development Sites.

1. Trees that are shown on a plan as to be retained as part of the minimum tree density requirement shall not be damaged and/or removed during, or as a result of, construction. If such trees are damaged and/or removed, the applicant shall be responsible for paying a fee based on the appraised landscape value, applied by the city arborist, using the latest edition of the “Guide for Plant Appraisal” but in no case shall it be less than $2,500 per tree, and shall meet other mitigation requirements per NBMC 19.10.092.

2. Trees that are shown on a plan as to be retained as part of the minimum tree density requirement shall be retained, unless such trees become hazardous, or as set out in NBMC 19.10.095(F), Modification to Tree Retention Requirements. If such trees are removed during the approved development phase without a permit and/or approval of the city, the property owner and/or the person performing the activity shall be responsible for paying a fee based on the appraised landscape value, applied by the city arborist, using the latest edition of the “Guide for Plant Appraisal” but in no case shall it be less than $2,500 per tree, and shall meet other mitigation requirements per NBMC 19.10.092.

3. Trees that are saved in excess of those required to meet the minimum tree density shall not be subject to this section; however, they shall be protected consistent with NBMC 19.10.095, Tree protection – Construction of developments.

D. Enforcement for Existing Developed Lots and Existing Developed Public Rights-of-Way.

1. The city shall encourage compliance with requirements for tree removal from existing developed lots and existing public rights-of-way through education and outreach, and by providing clear direction and standard forms for tree removal notifications.

2. Upon determination that there has been a violation of this chapter including, but not limited to: tree removal or tree topping, tree removal on another property not owned by the individual responsible for the removal, and/or removal not associated with development activity or approved permit, the property owner and/or person performing the activity may be responsible for paying a fee based on the appraised landscape value, applied by the city arborist, using the latest edition of the “Guide for Plant Appraisal” but in no case shall it be less than $2,500 per tree, and shall meet other mitigation requirements per NBMC 19.10.092.

E. The city may pursue code enforcement and penalties consistent with Chapter 1.20 NBMC. Liability for violations of this chapter shall be the joint and severable responsibility of both the property owner and any person performing activity.

F. Appeals of Tree Permit, Fine, or Other Decisions under This Chapter.

1. Appeals of initial decisions may be made to the CED director. Any person wishing to appeal an initial decision on a tree permit, fine, or other decision under this chapter shall put such appeal in writing, clearly stating the reasons such appeal should be granted. This appeal must be presented to the CED director within 14 days of the issuance of the tree permit decision, fine, or other decision appealed under this chapter. The CED director shall reduce their decision on such appeal in writing and provide it to the person requesting the appeal.

2. Appeals of director determinations may be made to the city hearing examiner. Any person wishing to appeal the CED director’s determination shall appeal in writing within 14 days of the decision on the permit, issuance of the fine, or other decision under this chapter. The appeal shall be in writing and shall clearly state the reason such appeal should be granted. Such appeal shall be processed by the city’s hearing examiner pursuant to Chapter 2.20 NBMC. (Ord. 1663 § 9, 2018: Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 17, 1993).

19.10.150 Insurance.

If, in the opinion of the city engineer or CED director, the nature of the work is such that it may create a hazard to human life or endanger streams, wetlands and/or their buffers, or public or private property, then the city engineer or CED director may, before issuing the permit, require that the applicant file a certificate of insurance. The certificate must provide to the city satisfactory proof of the existence of a comprehensive liability insurance policy, in an amount and form determined necessary by the city engineer or the city attorney, but in no event providing coverage of less than $1,000,000 for personal injury to any one person, $3,000,000 for injury to more than one person arising out of the same incident, and $250,000 for property damage, against claims arising pursuant to permits issued under this chapter, whether the performance be by the applicant, a subcontractor of the applicant, or any person directly or indirectly employed by the applicant. Additional amounts of insurance may be required by the city engineer in accordance with the nature of the risks involved. Insurance must be written by a company licensed to do business in the state of Washington. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 18, 1993).

19.10.160 Inspections.

A. All projects which include clearing, grading, filling, or drainage shall be subject to inspection by the city engineer or his designee, and the CED director or his designee for projects requiring community development review, who shall be granted reasonable right of entry to the work site by the permittee. When required by the city engineer, special inspection of the grading operations and special testing shall be performed by qualified professionals at the expense of the permittee. Inspections in conjunction with hydraulic permits will be performed and enforced by the Washington State Department of Fish and Wildlife.

B. Each site that has approved grading, erosion and sediment control or other required plans must be inspected as necessary to ensure that the sediment control measures are installed and effectively maintained in compliance with the approved plan and permit requirements. Where applicable, the permittee must obtain inspection by the city at the following stages:

1. Following the installation of sediment control measures or practices and prior to any other land-disturbing activity;

2. During the construction of sediment basins or stormwater management structures;

3. During rough grading, including hauling of imported or waste materials;

4. Prior to the removal or modification of any sediment control measure or facility; and

5. Upon completion of final grading, including establishment of ground covers and planting, installation of all vegetative measures, and all other work in accordance with an approved plan or permit. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 19, 1993).

19.10.170 Suspension of permits.

The city engineer or CED director may suspend or revoke a permit or issue a stop work order, whenever he determines that:

A. The act or intended act of clearing, grading, or filling has become or will constitute a hazard to persons; endangers property; adversely affects the safety, use or stability of any public way, drainage facility, stream or surface water, including siltation and sedimentation;

B. The permittee has violated a provision of the permit or of this chapter or other city ordinances;

C. There are changes in site runoff characteristics upon which a waiver was granted or permit was approved;

D. Construction is not in accordance with the approved plans and specifications; and

E. Noncompliance with correction notice(s) or stop work order(s) issued for erosion or sediment controls. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 20, 1993).

19.10.180 Completion of work.

A. Construction Changes. Whenever changes must be made to the original, approved plan, the changes shall be submitted to and approved by the city engineer in advance of the construction of those changes.

B. Final Reports. Upon completion of the rough grading and at the final completion of the work, the city engineer may require the following reports, drawings, and supplements thereto to be prepared and submitted by the owner and/or an appropriate qualified professional approved by the city engineer:

1. An as-built grading plan, including original ground surface elevations, final surface elevations, lot drainage patterns, and locations and elevations of all surface and subsurface drainage facilities; and

2. A soils grading and/or geologic grading report, including locations and elevations of field density tests and geologic features, summaries of field and other laboratory tests, and other substantiating data and comments or any other changes made during grading and their effect on the recommendations made in the approved grading plan.

C. Notification of Completion. The permittee or her/his agent shall notify the city engineer when the grading operation is ready for final inspection. Final approval shall not be given until all work has been completed in accordance with the final approved grading, erosion and sedimentation control, and other required plans, and the required reports have been submitted and accepted. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 21, 1993).

19.10.190 Posting of permit.

No work shall commence until a permit has been posted by the applicant on the subject site at a conspicuous location. The permit shall remain posted until the project has been completed and final inspection approved. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 22, 1993).

19.10.200 Administration and enforcement.

The city engineer and/or the CED director are authorized and directed to administer and enforce the provisions of this chapter. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 23, 1993).

19.10.210 Appeals.

Any person or persons aggrieved by any action of the city engineer or CED director pursuant to the provisions of this chapter may file an appeal with the examiner. The examiner shall uphold the decision of the city engineer or CED director unless it determines that his or her decision is arbitrary and capricious. If the examiner so finds, then he or she may reverse, modify or otherwise condition the application as necessary to carry out the purpose of this chapter.

The examiner’s decision shall be final and conclusive unless a written appeal is filed according to the city’s appeal procedures as set forth in Chapter 20.06 NBMC, as now in effect or as may be subsequently amended. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 1172 § 27, 2002: Ord. 1053 § 38, 1998: Ord. 932 § 24, 1993).

19.10.220 Clearing and grading rules and guidelines.

The city engineer and CED director shall adopt administrative rules and guidelines to implement the terms, conditions and intent of this chapter, including procedures for obtaining permits and permit exemption. The administrative regulations shall be filed with the city clerk and shall be available for public inspection at City Hall and the public works department. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 25, 1993).

19.10.230 Other laws.

A. Whenever conflicts exist between federal, state, or local laws, ordinances, or rules, the more restrictive provision shall apply.

B. Neither this chapter nor any administrative decision made under it:

1. Exempts the permittee from procuring other required permits or complying with the requirements and conditions of such a permit; or

2. Limits the right of any person to maintain against the permittee at any time, any appropriate action, at law or in equity, for relief from damages caused by the permittee arising from the permitted activity. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 26, 1993).

19.10.240 Removal of dirt, debris, or other material – Sanctions.

A. Whenever property damage is occurring or imminent as a result of an activity inconsistent with the purpose and intent of this chapter, as determined by the city engineer or CED director, the offending person, company, or firm shall, after notice of cleanup by the city engineer, remove such material or make necessary revisions, as instructed by the city engineer or CED director, to remove the cause of the offending activity.

B. If the person, company, or firm does not take the action ordered by the city engineer, such offending party shall be guilty of a civil infraction and shall be punished as set forth in NBMC 15.28.260⁵. In addition, the city engineer may cause the debris and other materials to be cleaned up and/or the activity altered. All expenses of such work, including the costs of litigation, if necessary, and administrative costs shall be chargeable to the owner or other person having charge of or having ordered the activity. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 27, 1993).

19.10.250 Public nuisance.

Any violation of the provisions of this chapter is declared to be a public nuisance and may be abated through proceedings for injunction or similar relief in superior court or other court of competent jurisdiction. (Ord. 1360 § 1 Exh. A (part), 2009; Ord. 932 § 28, 1993).

19.10.260 Penalty.

Any violation of this chapter shall be remedied pursuant to the provisions set forth in Chapter 1.20 NBMC. (Ord. 1585 § 19, 2016: Ord. 1360 § 1 Exh. A (part), 2009; Ord. 1088 § 3 (part), 1999: Ord. 932 § 29, 1993).

Prior legislation: Ord. 1360.

Prior legislation: Ords. 932 and 1360.

Prior legislation: Ord. 1360.

Prior legislation: Ords. 932 and 1360.

Chapter 15.28 NBMC was repealed by Ord. 899.