Chapter 19.02
CRITICAL AREAS REGULATIONS
Sections:
19.02.040 Compliance with critical areas protection.
19.02.060 Exempt activities in critical areas.
19.02.070 Emergency work in critical areas.
19.02.080 Best available science.
19.02.090 Wetland delineation and protection.
19.02.100 Geologically hazardous areas delineation and protection.
19.02.110 Aquifer recharge areas delineation and protection.
19.02.120 Fish and wildlife habitat conservation areas delineation.
19.02.130 Frequently flooded areas.
19.02.140 Areas of local importance.
19.02.150 Variances and reasonable use exceptions.
19.02.160 Surety for mitigation improvements.
19.02.170 Responsibility for improvements.
19.02.180 Warning and disclaimer of liability.
19.02.190 Violations, enforcement and access.
19.02.010 Finding.
The city finds that critical areas’ biological and physical functions benefit the city by protecting water quality, providing fish and wildlife habitat, supporting the food chain, storing and conveying flood waters, recharging groundwater, controlling erosion and providing aesthetic values and recreation. (Ord. 851 § 1 (part), 2008)
19.02.020 Purpose.
The purpose of this chapter is to:
A. Comply with the Washington State Growth Management Act requirement that cities adopt regulations to designate and protect critical areas’ functions and values, and that these regulations incorporate best available science;
B. Protect the public health, safety, and welfare by:
1. Protecting the public from hazards associated with development in critical areas;
2. Preventing the adverse environmental impacts of development on critical areas;
C. Preserve and protect critical areas by regulating development within and adjacent to them while recognizing the unique character of Ocean Shores as a planned residential and resort community and allowing for reasonable use of private property consistent with the original intent of the development plan for the community and the current comprehensive plan;
D. A further purpose of this chapter is to declare that there are no lands meeting the definitions of agricultural lands (RCW 36.70A.030(2)) or forest lands (RCW 36.70A.030(8)) within or immediately adjacent to the city of Ocean Shores and, therefore, no regulations thereof are adopted. The comprehensive plan identifies the ocean beach road approaches as mineral resource lands within the city having long-term commercial significance for extracting aggregate substances (sand). The lands involved are owned by the city and maintained primarily for the purpose of providing access to the beach. The extraction activity is necessary and appropriate as maintenance of these beach approaches. However, the activity is conducted by or for the city exclusively and, therefore, no regulations in the context of protecting mineral resource lands from encroachment are necessary.
(Ord. 851 § 1 (part), 2008)
19.02.030 Definitions.
A. “Critical areas” includes any of the following areas or ecosystems: aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands, as defined in RCW 36.70A.030 and WAC 365-195-200.
B. Aquifer Recharge Area. The incorporated area of the city is designated as an aquifer recharge area.
C. “Frequently flooded areas” means lands in the floodplain subject to a one percent or greater chance of flooding in any given year. These areas include, but are not limited to, streams, rivers, lakes, coastal areas, wetlands, and the like. The one-hundred-year floodplain designations of the National Flood Insurance Program delineate the presence of frequently flooded areas.
D. “Development” means any activity upon the land consisting of construction or alteration of structures, earth movement, dredging, dumping, grading, filling, mining, removal of any sand, gravel, or minerals, driving of piles, drilling operations, bulkheading, clearing of vegetation, or other land disturbance. Development includes the storage or use of equipment or materials inconsistent with the existing use. Development also includes approvals issued by the city that bind land to specific patterns of use, including but not limited to subdivisions, short subdivisions, zone changes, conditional use permits, and binding site plans. Development activity does not include the following activities:
1. Interior building improvements.
2. Exterior structure maintenance activities, including painting and roofing.
3. Routine landscape maintenance of established, ornamental landscaping, such as lawn mowing, pruning, and weeding.
4. Maintenance of the following existing facilities that does not expand the affected area:
a. Septic tanks (routine cleaning);
b. Wells;
c. Individual utility service connections; and
d. Individual cemetery plots in established and approved cemeteries.
E. “Wetland” or “wetlands” means areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. Wetlands may include those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands.
F. “Qualified expert” means a person who prepares a technical assessment with expertise appropriate to the relevant critical area. Expertise shall be based upon some or all of the following:
1. Professional credentials and/or certification;
2. Any advanced degrees earned in the pertinent scientific discipline from a recognized university;
3. The number of years of experience in the pertinent scientific discipline;
4. Recognized leadership in the discipline of interest;
5. Formal training in the specific area of expertise;
6. Field and/or laboratory experience with evidence of the ability to produce peer-reviewed publications or other professional literature;
7. Geologists preparing technical assessments shall meet the requirements of a licensed geologist under Chapter 18.220 RCW.
(Ord. 851 § 1 (part), 2008)
19.02.040 Compliance with critical areas protection.
All public and private land use or development proposed in the city of Ocean Shores shall comply with the requirements of this chapter as a condition to any project permit issued under the Ocean Shores Municipal Code or any other authorization to conduct development issued by the city. Review for compliance with these requirements shall be conducted by the city as a part of the review of the first land use or building application filed for any project that does not require review pursuant to Chapter 19.04 (State Environmental Policy Act) or as a part of the environmental review conducted pursuant to Chapter 19.04. Violation of the conditions of a permit required to assure compliance with this chapter shall be deemed a violation of the underlying authorization and enforceable as such. (Ord. 851 § 1 (part), 2008)
19.02.050 Fees.
The city shall establish fees by which the city shall recover its cost of reviewing development proposals, including cost of engineering review, planning review, inspections, and administration. The applicant shall be responsible for all required reports, assessments, studies and plans. (Ord. 851 § 1 (part), 2008)
19.02.060 Exempt activities in critical areas.
The following uses or activities within a critical area or critical area buffer are exempt from the requirements of this chapter to the extent that they are not prohibited by other state or federal laws and do not degrade the critical area:
A. Conservation, enhancement, restoration, or preservation measures or projects;
B. Low intensity, passive recreational uses on lands designated for that purpose and not requiring development in critical areas to support the use;
C. Short-term scientific studies and educational uses;
D. Repair and maintenance of existing public roads, bridges, utilities and stormwater facilities;
E. Maintenance and use of existing trails and walkways;
F. Use of public and private park and recreation lands in accordance with their intended function and purpose, not including modifications thereto, except as otherwise listed herein;
G. Site investigation work necessary for land use applications; and
H. Forest practices governed by Chapter 76.09 RCW, except for class IV conversions, which shall be subject to the provisions of this chapter.
(Ord. 851 § 1 (part), 2008)
19.02.070 Emergency work in critical areas.
The mayor may authorize emergency work in critical areas without a permit if that official determines an imminent threat to public health or safety will occur before completion of normal permit procedures. Emergency work shall be limited to the work necessary to abate the emergency and restoration of the critical area and/or mitigation of the impacts to the critical area, if possible, following the emergency. Authorization to conduct emergency work granted by the city does not exempt the work from compliance with other state and federal requirements. (Ord. 851 § 1 (part), 2008)
19.02.080 Best available science.
A. Critical area identification, assessment and/or evaluation, as well as the reports and decisions associated therewith, shall rely on the best available science applicable thereto and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat.
B. The best available science is that scientific information applicable to the critical area prepared by local, state or federal natural resource agencies, a qualified scientific professional, or a team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.
C. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area, leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the city shall:
1. Take a precautionary or a no-risk approach that strictly limits development and land use activities until the uncertainty is sufficiently resolved; and
2. Require an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area.
(Ord. 851 § 1 (part), 2008)
19.02.090 Wetland delineation and protection.
A. The city shall regulate development activities to protect wetlands. Development activities shall be managed in a manner that does not significantly diminish the capacity of wetlands to:
1. Provide flood and stormwater control;
2. Recharge the aquifer;
3. Protect surface and groundwater quality by trapping sediments, removing nutrients, and providing chemical detoxification; and
4. Provide habitat for fish and wildlife including listed endangered and threatened species.
B. The city adopts by reference the following as current best available science resources for wetlands in the city of Ocean Shores:
1. “Soil Survey of Grays Harbor County Area, Pacific County, and Wahkiakum County Washington,” USDA, 1986;
2. “Washington State Wetland Identification and Delineation Manual” (WAC 173-22-080) as revised;
3. “Washington State Wetland Rating System for Western Washington,” Washington Department of Ecology, 2004, Publication No. 04-06-025, as revised;
4. “Wetlands in Washington State, Volume 1: A Synthesis of the Science,” March 2005 Ecology Publication No. 05-06-006;
5. “Wetlands in Washington State, Volume 2: Guidance for Protecting and Managing Wetlands,” April 2005, Ecology Publication No. 05-06-008;
6. Washington State Department of Ecology, U.S. Army Corps of Engineers Seattle District, and U.S. Environmental Protection Agency Region 10 March 2006. “Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance (Version 1),” Washington State Department of Ecology Publication No. 06-06-011a; and
7. “Wetland Mitigation in Washington State: Part 2 – Developing Mitigation Plans” (Version 1, March 2006, Publication No. 06-06-011b).
C. Development activities in wetlands and their associated buffers are prohibited unless:
1. The hearing examiner, after review pursuant to Section 19.02.150, finds that:
a. No practical alternative exists for design, development and/or use of property in a manner that does not encroach on the wetland or buffer; and
b. The prohibition precludes use of the property that would be otherwise legal, under all applicable city development regulations, and feasible, based on the character and circumstances of the property; and
c. The project has incorporated measures to provide for compliance with subsection (D) of this section.
2. The proposed development is a single-family dwelling and associated accessory structures located on a lot or lots platted for that purpose prior to the adoption of this chapter and in all respects otherwise is in accordance with the requirements of all applicable development regulations of the city; provided, that all reasonable measures to avoid and minimize impact to any wetland areas or associated buffers are applied and the applicant demonstrates that the project has been approved under all federal and state regulatory programs applicable to the project; or
3. The proposed development is within the original platted area and is the use specified in the original plan of the Ocean Shores community as evidenced by the covenants, conditions and restrictions attached to the property by the developer upon first sale of the lots and in all respects otherwise is in accordance with the requirements of all applicable development regulations of the city; provided, that all reasonable measures to avoid and minimize impact to any wetland areas or associated buffers are applied and the applicant demonstrates that the project has been approved under all federal and state regulatory programs applicable to the project; or
4. An encroachment into the wetland or buffer is minimal and temporary; or
5. The development activities are authorized as a part of an environmental enhancement, rehabilitation or mitigation project and when completed will improve the functions and values of the wetland being impacted.
D. Whenever any encroachment into a wetland or buffer is authorized pursuant to subsection (C) of this section, the authorized encroachment shall be the minimum necessary to achieve the purpose and the impacts of the encroachment on the wetland and buffer shall be mitigated in accordance with the best available scientific information applicable to the setting and situation. Unless otherwise specifically authorized by the city, the basic references for determining appropriate mitigation for a specific project shall be “Wetland Mitigation in Washington State – Part 1: Agency Policies and Guidance (Version 1)” and “Wetlands in Washington State, Volume 2: Guidance for Protecting and Managing Wetlands, Appendix 8-C, Guidance on the Width of Buffers and Ratios for Compensatory Mitigation for Use with the Western Washington Wetland Rating System” (Ecology Publication No. 05-06-008, 2005), excluding Section 8-C.3.3 of Appendix 8-C, Alternate 3.
E. A wetland buffer that separates a wetland boundary from a development is required, except as provided in subsection (F) of this section. The purpose of the buffer is to mitigate adverse impacts of development activities and future use on the wetland. The width and character of buffers shall be as necessary to protect the identified functions and values of the wetland from impacts associated with the specific type and character of the proposed development activities and use of the property in accordance with the best available science. Unless otherwise specifically authorized by the city, the basic reference for determining appropriate buffers for a specific project shall be “Wetlands in Washington State, Volume 2: Guidance for Protecting and Managing Wetlands, Appendix 8-C, Guidance on the Width of Buffers and Ratios for Compensatory Mitigation for Use with the Western Washington Wetland Rating System” (Ecology Publication No. 05-06-008, 2005), excluding Section 8-C.2.4.3 of Appendix 8-C, Alternate 3.
F. When the development is proposed under the provisions of subsection (C)(2) or (3) of this section, and provided the development meets either of the criteria set forth in subsection (F)(1) or (2) of this section, then the buffer shall be determined under the provisions of subsection (E) of this section together with the following additional buffer requirements applicable to the subject property:
1. When the impacted wetland is located entirely on property owned by the city or state and is designated as an area protected from development or use, other than passive recreational or open space use, the required buffer shall be determined by this section. However, it shall extend onto the subject property no more than twenty percent of the lot depth and/or width.
2. When the impacted wetland is located on the subject property or on adjacent property not covered by subsection (F)(1) of this section, a buffer shall be required based on this section or the maximum feasible buffer width that allows reasonable use of the property for the intended use.
G. The following process shall be applied when reviewing all projects for which any form of development authorization is requested and for all city, state and federal projects within the city of Ocean Shores:
1. A preliminary wetland reconnaissance shall be conducted by the applicant or proponent and reviewed by the planning director. The purpose of the reconnaissance is to determine whether any wetlands, or the buffers likely to be necessary to protect wetlands, are located on the property of the proposed development or in the same ownership. Sources of information that should be consulted include aerial photography, known wetland maps, and a site visit.
2. If the reconnaissance indicates that wetlands, or the buffers likely to be necessary to protect wetlands, are located on the property of the proposed development or in the same ownership, the city shall require that a wetland technical assessment be prepared for the proposal. A qualified expert shall prepare any wetland technical assessments required by the city. The report shall include, but not be limited to:
a. A delineation of the location of the wetland(s) boundary;
b. An evaluation of wetland(s) rating and identification of its probable functions and values;
c. An analysis of how the proposed use would or would not have adverse impact on the wetland or buffer; and
d. Recommendations for mitigating adverse environmental impacts on wetland values and functions during construction and future use.
The city may authorize the applicant to reduce the scope of the technical assessment to those items relevant to and feasible for the subject project, such as waiver of an on-the-ground delineation and rating when the wetland is located on property owned by other private entities; provided, that the assessment retains sound scientific basis and conclusions and properly provides for the protection of wetland functions and values.
3. The planning director shall evaluate the technical assessment including, where necessary or appropriate, consultation with state and/or federal agency personnel with expertise, and incorporate appropriate terms and conditions based on the evaluation into any approval granted by the city for the project as necessary to assure compliance with the provisions of this section.
4. A technical assessment and report prepared by a qualified expert may be used to authorize a reduction or modification of the required buffer, if such reduction or modification will not adversely affect the functions and values of the wetland and buffer.
5. It shall be the responsibility of the applicant to provide the city with appropriate reconnaissance and technical assessments and reports prepared by a qualified expert, if necessary, to fulfill the requirements of an application for a project permit review, threshold decision or to comply with any other city, state or federal laws. The applicant shall pay all expenses associated with the preparation of any technical assessment or report required by the city.
(Ord. 851 § 1 (part), 2008)
19.02.100 Geologically hazardous areas delineation and protection.
The following section establishes geologically hazardous regulations for the city of Ocean Shores. Based on a review of available scientific and technical information, the city has concluded that no areas of the city require regulation for protection from landslide hazards, mine hazards, or volcanic hazards.
A. The city adopts by reference the following maps and best available science resources for geologically hazardous areas in the city of Ocean Shores:
1. “Soil Survey of Grays Harbor County Area, Pacific County, and Wahkiakum County, Washington,” USDA, 1986, and the latest information available on the Natural Resources Conservation Service Web Soil Survey website (www.websoilsurvey.nrcs.usda.gov);
2. “Geologic Map of the South Half of the Shelton and South Half of the Copalis Beach Quadrangles, Washington,” Washington Division of Geology and Earth Resources, 1987;
3. “Liquefaction Susceptibility and Site Class Maps for Washington State,” by Stephen P. Palmer, Sammantha L. Magsino, Eric L. Bilderback, James L. Poelstra, Derek S. Folger, and Rebecca A. Niggemann, Washington State Department of Natural Resources, Division of Geology and Earth Resources, 2004; Report and associated maps;
4. If the location, designation, or classification of a geologically hazardous area shown on any map adopted herein is in conflict with the determination of any verified field investigation by a qualified expert, the latter shall prevail.
B. The following areas are designated as geologically hazardous:
1. Areas susceptible to wind erosion identified as having soil types of Dunelands, Netarts fine sand and Westport fine sand;
2. Areas subject to wave erosion identified as those properties within shorelines associated with the Pacific Ocean and Grays Harbor and immediately adjacent to the ordinary high water mark; and
3. The entire city is a seismic hazard area identified as being in a Liquefaction Site Class D2.
C. The city shall manage development activities in geologically hazardous areas to protect the public’s health, safety, and welfare.
1. Clearing and grading of land is prohibited unless and until a landscaping plan is approved by the city pursuant to the provisions of Section 17.50.100.
2. All development in the city shall comply with the current and adopted building codes with regard to mitigation of seismic risk.
3. It shall be the responsibility of the applicant to provide the city with appropriate reconnaissance and technical assessments and reports prepared by a qualified expert, if necessary, to fulfill the requirements of an application for a project permit review or threshold decision or to comply with any other city, state or federal laws. The applicant shall pay all expenses associated with the preparation of any technical assessment required by the city.
(Ord. 1029 § 1 (part), 2018; Ord. 851 § 1 (part), 2008)
19.02.110 Aquifer recharge areas delineation and protection.
A. The city designates the entire city as an aquifer recharge area and shall manage all development activities to protect groundwater quality and quantity for use as a potable water source.
B. The discharge of pollutants or contaminants in any manner that may result in an adverse impact on the city’s current or planned future water supply is prohibited.
1. On-site sewage treatment shall be prohibited in critical aquifer recharge areas unless a site cannot be connected to the city sewer system. In cases where connection to the city sewer system is not possible, additional requirements to condition on-site sewage treatment to prevent pollution of groundwater may be required. In instances where on-site sewage treatment cannot be mitigated to prevent groundwater contamination, the development permit application shall be denied.
2. The following land uses shall require a hydrogeologic technical assessment of the proposed site:
a. Hazardous substance processing or handling;
b. Hazardous waste treatment and storage facilities;
c. Outdoor or underground storage of petroleum products;
d. Landfills, junkyards, auto wrecking yards;
e. Heavy equipment storage or repair facility; and
f. Any other land use that by the nature of the proposed activity is likely to pose a risk of groundwater contamination.
C. A qualified expert who is a licensed geologist shall prepare any technical assessment required by the city for an aquifer recharge area. The report shall include:
1. A characterization of the site and its relationship to the aquifer;
2. A discussion of the effects of the proposed development activities and its ability to meet the established standards of this section; and
3. Recommended mitigation measures to ensure compliance with the standards set forth under subsection (A) of this section.
D. Upon review of a technical analysis, the city may authorize the proposed use conditioned on incorporation of and compliance with mitigation measures during construction and as a permanent condition on the authorized use.
E. It shall be the responsibility of the applicant to provide the city with appropriate reconnaissance and technical assessments and reports prepared by a qualified expert, if necessary, to fulfill the requirements of an application for a project permit review or threshold decision or to comply with any other city, state or federal laws. The applicant shall pay all expenses associated with the preparation of any technical assessment required by the city.
(Ord. 851 § 1 (part), 2008)
19.02.120 Fish and wildlife habitat conservation areas delineation.
A. The city shall manage development and subsequent uses in fish and wildlife habitat conservation areas to maintain species in suitable habitats within their natural geographic distribution and to prevent isolated subpopulations.
B. The following areas are designated as fish and wildlife conservation areas:
1. The dune protection area as delineated in Chapter 18.56 and the beaches associated with the Pacific Ocean between the ordinary high water mark and the line of extreme low tide (city limit line);
2. The marshes and tidelands associated with Grays Harbor between the ordinary high water mark and the line of extreme low tide (city limit line);
3. The Oyehut Wildlife Area;
4. Duck Lake and all city-owned land adjacent to and within two hundred feet of the ordinary high water mark; and
5. All of the other freshwater canals and waterways and all city-owned land adjacent to and within twenty-five feet of the ordinary high water mark.
C. The city adopts by reference the following maps and best available science resources for fish and wildlife habitat conservation areas:
1. Washington Department of Fish and Wildlife, 1999, “Priority habitats and species list,” as amended.
2. “Aquatic Habitat Guidelines. A compendium of technical guidance documents.” Project website is located at:
http://wdfw.wa.gov/hab/ahg
3. “Management Recommendations for Washington’s Priority Habitats and Species. A compendium of technical guidance documents.” Web site is located at:
http://wdfw.wa.gov/hab/phsrecs
as of the date of enactment.
D. A qualified expert shall prepare any technical assessment required by the city when any of the following development activities are proposed on parcels located within or adjacent to a designated fish and wildlife habitat conservation area:
1. Subdivisions or short subdivisions;
2. Clearing of vegetation, grading, filling, excavation and/or construction of any building except when conducted in support of the following uses:
a. Construction of a single-family dwelling and associated accessory structures located on a lot or lots platted for that purpose prior to the adoption of this code and in all respects otherwise in accordance with the requirements of all applicable development regulations of the city; or
b. Camping on residential lots in accordance with the requirements of the city code for such use.
E. The technical assessment shall include:
1. An identification of species known or suspected to use the site and a description of the habitat functions and values related to those species;
2. Evaluation of the effects of the proposed development activities and subsequent use of the property on the identified species and their habitats; and
3. Recommended measures to avoid, minimize and/or mitigate impacts to the identified species and habitat based on best available scientific information about those species. Preference shall be given to avoidance of impacts. Mitigation of identified unavoidable impacts to all priority habitats and species, as listed in the document referenced in subsection (C) of this section, shall be required.
F. Measures to avoid, minimize or mitigate impacts to fish and wildlife habitat from development and subsequent use of a property as recommended or as determined to be necessary by the city shall be attached as conditions to any approval granted authorizing the development or use of the property.
(Ord. 851 § 1 (part), 2008)
19.02.130 Frequently flooded areas.
A. Those areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the Grays Harbor County and Incorporated Cities dated February 3, 2017,” with an accompanying flood insurance map(s) and any revisions thereto, are designated as frequently flooded areas. The flood insurance study and accompanying map(s) are hereby adopted by reference, declared part of this chapter, and are available for public review.
B. All development within the designated frequently flooded areas shall be managed in accordance with Chapter 15.36.
(Ord. 1029 § 1 (part), 2018: Ord. 851 § 1 (part), 2008)
19.02.140 Areas of local importance.
A. In addition to all other provisions contained in this chapter, any area that lies within the boundaries of Grays Harbor County parcel No. 617121121000, commonly known as “the Weatherwax,” that is determined by a qualified expert, using the best available science, to be a critical area as defined herein, shall be protected in accordance with the provisions of this chapter applicable thereto.
B. No person, except an authorized city employee or other person duly authorized pursuant to law, shall enter or go upon any area within the Weatherwax which has been posted as a “No Trespassing” area or depart from trails established and maintained by the city of Ocean Shores. Every person convicted of a violation under this provision shall be guilty of a Class C offense under Chapter 7.01.
C. The provisions of Chapter 8.04, Litter Control, shall apply to all areas of the Weatherwax.
(Ord. 954 § 1, 2015: Ord. 851 § 1 (part), 2008)
19.02.150 Variances and reasonable use exceptions.
A. Variances.
1. Variances from the standards of this chapter may be authorized in accordance with the procedures set forth in Chapter 17.52. The hearing examiner shall review the request and make a written finding that the request meets or fails to meet the variance criteria.
2. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:
a. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands subject to the same critical area regulations;
b. The special conditions and circumstances do not result from the actions of the applicant;
c. A literal interpretation of the provisions of this chapter would deprive the applicant of all reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;
d. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;
e. The granting of the variance is consistent with the general purpose and intent of this chapter;
f. The decision to grant the variance includes the best available science; and
g. The granting of the variance is consistent with the general purpose and intent of the comprehensive plan and adopted development regulations.
3. In granting any variance, the hearing examiner may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts and to ensure conformity with this chapter.
4. Any variance granted pursuant to this provision shall be subject to revocation and expiration as provided in Section 17.52.080.
5. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application.
B. The hearing examiner, after application and review pursuant to the provisions of Chapter 17.52, may authorize a reasonable use exception under the provisions of this chapter. The process, requirements and criteria applicable to a conditional use shall apply to the consideration of reasonable use exception in addition to those criteria contained in Section 19.02.090(C).
(Ord. 851 § 1 (part), 2008)
19.02.160 Surety for mitigation improvements.
A. The city may require the applicant to submit a surety for the construction and/or maintenance of any mitigation measures required under this chapter for a period not to exceed five years from the date of substantial completion of work. The city may release the surety earlier than assigned if a technical assessment prepared by a qualified expert affirms that the mitigation measure is functioning in accordance with its design.
B. The value of a construction surety shall be not less than one hundred and twenty-five percent of the contract cost for the mitigation improvement as estimated by the city engineer. The value of a maintenance surety shall be not less than fifteen percent of the total value of the mitigation improvement as estimated by the city engineer. The surety shall be approved by the city attorney.
(Ord. 851 § 1 (part), 2008)
19.02.170 Responsibility for improvements.
The property owner, or his/her successors, shall be responsible for the maintenance of any mitigation measure required under this chapter, unless otherwise specifically agreed to by the city. (Ord. 851 § 1 (part), 2008)
19.02.180 Warning and disclaimer of liability.
The degree of protection required by this chapter from the identified hazards is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Extreme events can and will occur on rare occasions. This chapter does not imply that land identified as outside of hazardous critical areas or uses permitted within such areas will be free from damages. This chapter shall not create liability on the part of the city of Ocean Shores, any officer or employee thereof, or any state or federal agency for any damages that result from reliance on this chapter or any administrative decision lawfully made hereunder. (Ord. 851 § 1 (part), 2008)
19.02.190 Violations, enforcement and access.
A. Violations of this chapter shall be equivalent to violations of the city zoning ordinance, including penalties therefor. The planning director shall enforce this chapter following the enforcement process in the city zoning ordinance. The planning director may require a restoration plan prepared by a qualified professional. Historic functions and values, soil configurations, and native vegetation shall be used as a guide for restoration. Flood and geological hazards shall be reduced to the predevelopment level.
B. Reasonable access to the development shall be provided to agents of the city for critical area inspections, monitoring, restoration, or emergency action.
(Ord. 851 § 1 (part), 2008)
19.02.200 Short title.
This chapter shall be known as the critical areas ordinance and may be cited as such. (Ord. 851 § 1 (part), 2008)