Chapter 17.10 CRITICAL AREAS REGULATIONS (CAR)

It is the purpose of this chapter to promote the public health and general welfare by designating wetlands, streams, habitat areas and geologically hazardous areas and regulating development activity in these areas. Additionally, it is the intent of this chapter to adopt development regulations, required in RCW 36.70A.060, precluding land uses or development that is incompatible with critical areas designated under RCW 36.70A.170. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.020 Objectives.

The objectives of this chapter are to:

A. Protect human life and health;

B. Further the public interest in the conservation and wise use of our lands; and

C. Assure the long-term conservation of resource lands. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.030 Applicability.

A. The provisions of this chapter shall apply to all land uses in the city of Sultan and all persons within the city shall comply with the requirements of this chapter.

B. The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water or vegetation or to construct or alter any structure or improvement without first assuring compliance with the requirements of this chapter.

C. Approval of a development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter.

D. When any provision of any other chapter of the Sultan Municipal Code conflicts with this chapter or when the provisions of this chapter are in conflict, that provision that provides more protection to environmentally critical areas shall apply unless specifically provided otherwise in this chapter or unless such provision conflicts with federal or state laws or regulations. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.040 Appeals.

Any decision to approve, condition, or deny a development proposal based on the requirements of this chapter may be appealed according to and as part of the appeal procedure for the permit or approval involved. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.050 Exemptions.

The following are exempt from the provisions of this chapter:

A. Alterations in response to emergencies that threaten the public health, safety and welfare or that pose an imminent risk of damage to private property as long as any alteration undertaken pursuant to this subsection is reported to the department immediately. Mitigation may be required following the emergency to protect the health, safety, welfare and environment and to repair any resource damage;

B. Public water, electric and natural gas distribution, public sewer collection, cable communications, telephone utility and related activities undertaken pursuant to city-approved best management practices, as follows:

1. Normal and routine maintenance or repair of existing utility structures or rights-of-way;

2. Relocation of electric facilities, lines, equipment or appurtenances, not including substations, with an associated voltage of 55,000 volts or less, only when required by a local governmental agency that approves the new location of the facilities and only when all other alternative sites have been examined and determined to be infeasible, mitigation will be required;

3. Replacement, operation, repair, modification, installation, or construction in existing developed utility corridors, an improved city street right-of-way or city-authorized private street of all electric facilities, lines, equipment, or appurtenances, not including substations;

4. Relocation of public sewer local collection, public water local distribution, natural gas, cable communication or telephone facilities, lines, pipes, mains, equipment, or appurtenances, only when required by a local governmental agency that approves the new location of the facilities and only when all other alternative sites have been examined and determined to be infeasible, mitigation will be required;

5. Replacement, operation, repair, modification, installation, or construction of public sewer local collection, public water local distribution, natural gas, cable communication or telephone facilities, lines, pipes, mains, equipment, or appurtenances when such facilities are located within an improved public right-of-way or authorized private street;

C. Maintenance, operation, repair, modification, or replacement of publicly improved streets as long as any such alteration does not involve the expansion of streets or related improvements into previously unimproved rights-of-way or portions of rights-of-way;

D. Maintenance, operation, or repair of parks, trails and publicly improved recreation areas as long as any such alteration does not involve the expansion of improvements into previously unimproved areas or new clearing of native vegetation beyond routine pruning and related activities. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.060 Critical area markers, signs and fencing.

The city may require fencing, signs and survey markers as needed to delineate and protect critical areas. If found to be necessary, permanent fencing and signage shall be required at the edge of the critical area or buffer. Fencing and/or signage installed in accordance with this section shall be designed to not interfere with fish and wildlife migration and shall be constructed in a manner that minimizes critical areas impacts. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.070 Notice on title.

The owner of any property containing critical areas or buffers on which a development proposal is submitted or any property on which mitigation is established as a result of development, except a public right-of-way or the site of a permanent public facility, shall file a notice approved by the city with the county property records office. The required contents and form of the notice shall be determined by the city. The notice shall inform the public of the presence of critical areas, buffers or mitigation sites on the property, of the application of this chapter to the property and that limitations on actions in or affecting such critical areas or buffers may exist. The notice shall run with the land. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.080 Critical area tracts and designations on site plans.

A. Critical area tracts shall be used to protect those critical areas and buffers listed below in development proposals for subdivisions, short subdivisions, or binding site plans and shall be recorded on all documents of title of record for all affected lots:

1. All landslide hazard areas and buffers that are one acre or greater in size;

2. All wetlands and buffers; and

3. All streams and buffers.

B. Any required critical area tract shall be held in an undivided interest by each owner of a building lot within the development with this ownership interest passing with the ownership of the lot or shall be held by an incorporated homeowners’ association or other legal entity which assures the ownership, maintenance and protection of the tract, or dedicated to the city, at the city’s discretion. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.090 Building setbacks.

Unless otherwise provided, building setbacks shall be located a distance of 10 feet from the edges of a required critical area buffer. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.100 Classification of streams and wetlands.

A. Stream Classifications. Streams are classified based on the water typing criteria in WAC 222-16-031 and are summarized below (wherever various water types are referenced, Type 1 shall also be Type S; Type 2 and 3 shall also be Type F; Type 4 shall also be Type Np; Type 5 shall also be Type Ns):

1. Type S Water. All waters, within their ordinary high water mark, as inventoried as “shorelines of the state” under Chapter 90.58 RCW and the rules promulgated pursuant to Chapter 90.58 RCW, but not including those waters’ associated wetlands as defined by Chapter 90.58 RCW. Type S streams are included in the Sultan shoreline master program (adopted in July 2008) and regulated therein.

2. Type F Water. Segments of natural waters that are not classified as Type S water and have a high fish, wildlife, or human use. These are segments of natural waters and periodically inundated areas of their associated wetlands, which:

a. Are diverted for domestic use by more than 100 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the Department of Natural Resources to be a valid appropriation of water and only considered Type F water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, or whichever is less;

b. Are diverted for use by federal, state, tribal or private fish hatcheries. Such waters shall be considered Type 2F water upstream from the point of diversion for 1,500 feet, including tributaries if highly significant for protection of downstream water quality;

c. Are within a federal, state, local or private campground having more than 30 camping units; provided, that the water shall not be considered to enter a campground until it reaches the boundary of the park lands available for public use and comes within 100 feet of a camping unit;

d. Are used by fish for spawning, rearing or migration. Waters having the following characteristics are presumed to have highly significant fish populations:

i. Stream segments having a defined channel 20 feet or greater within the bankfull width and having a gradient of less than four percent.

ii. Lakes, ponds, or impoundments having a surface area of one acre or greater at seasonal low water; or

e. Are used by fish for off-channel habitat. These areas are critical to the maintenance of optimum survival of fish. This habitat shall be identified based on the following criteria:

i. The site must be connected to a fish bearing stream and be accessible during some period of the year; and

ii. The off-channel water must be accessible to fish through drainage with less than a five percent gradient.

3. Type F Water. Segments of natural waters that are not classified as Type S or F waters and have a moderate to slight fish, wildlife and human use. These are segments of natural waters and periodically inundated areas of their associated wetlands which:

a. Are diverted for domestic use by more than 10 residential or camping units or by a public accommodation facility licensed to serve more than 10 persons, where such diversion is determined by the Department of Natural Resources to be a valid appropriation of water and the only practical water source for such users. Such waters shall be considered to be Type F3 water upstream from the point of such diversion for 1,500 feet or until the drainage area is reduced by 50 percent, whichever is less;

b. Are used by fish for spawning, rearing or migration. The requirements for determining fish use are described in the State Forest Practices Board Manual, Section 13. If fish use has not been determined:

i. Waters having the following characteristics are presumed to have fish use:

(A) Stream segments having a defined channel of two feet or greater within the bankfull width and having a gradient of 16 percent or less.

(B) Stream segments having a defined channel or two feet or greater within the bankfull width and having a gradient greater than 16 percent and less than or equal to 20 percent and having greater than 50 acres in contributing basin size, based on hydrographic boundaries.

(C) Ponds or impoundments having a surface area of less than one acre at seasonal low water and having an outlet to a fish stream.

(D) Ponds or impoundments having a surface area greater than one-half acre at seasonal low water.

ii. The Department of Natural Resources shall waive or modify the characteristics in subsection (A)(3)(b)(i) of this section where:

(A) Waters have confirmed, long term, naturally occurring water quality parameters incapable of supporting fish;

(B) Snowmelt streams have short flow cycles that do not support successful life history phases of fish. These streams typically have no flow in the winter months and discontinue flow by June 1st; or

(C) Sufficient information about a geomorphic region is available to support a departure from the characteristics in subsection (A)(3)(b)(i) of this section, as determined in consultation with the Department of Fish and Wildlife, Department of Ecology, affected tribes and interested parties.

4. Type Np Water. All segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams. Perennial streams are waters that do not go dry any time of a year of normal rainfall. However, for the purpose of water typing, Type Np waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow. If the uppermost point of perennial flow cannot be identified with simple, nontechnical observations (see State Forest Practices Board Manual, Section 23), then Type Np waters begin at a point along the channel where the contributing basin area is:

a. At least 13 acres in the Western Washington coastal zone (which corresponds to the Sitka spruce zone defined in Franklin and Dyrness, 1973);

b. At least 52 acres in other locations in western Washington.

5. Type Ns (5) Waters. All segments of natural waters within the bankfull width of the defined channels that are not Type S, F, and NP waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of the year and are not located downstream from any stream reach that is a Type S, F or NP water.

B. Wetlands Categories. All determinations of wetlands rating will be based on the entire extent of the wetlands, unrelated to property lines or ownership patterns. Wetlands shall be rated according to the Washington State Wetland Rating System for Western Washington (Department of Ecology 2014, or as revised). This document contains the definitions, methods and a rating form for determining the categorization of wetlands described below:

1. Category I. Category I wetlands include those that receive a score of greater than or equal to 23 based on functions, or those that are rated Category I based on special characteristics as defined in the rating form.

2. Category II. Category II wetlands include those that receive a score of 20 through 22 based on functions, or those that are rated Category II based on special characteristics as defined in the rating form.

3. Category III. Category III wetlands include those that receive a score of 16 through 19 based on functions.

4. Category IV. Category IV wetlands score less than 16 points based on functions. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.105 Wetland buffers.

A. Buffer Requirements. The following buffer widths have been established in accordance with the best available science. They are based on the category of wetland and the habitat score as determined by a qualified wetland professional using the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029, or as revised and approved by Ecology). The adjacent land use intensity is assumed to be high.

1. For wetlands that score five points or more for habitat function, the buffers in Table 1 can be used if both of the following criteria are met:

a. A relatively undisturbed, vegetated corridor at least 100 feet wide is protected between the wetland and any other priority habitats as defined by the Washington State Department of Fish and Wildlife.

The corridor must be protected for the entire distance between the wetland and the Priority Habitat by some type of legal protection such as a conservation easement. Presence or absence of a nearby habitat must be confirmed by a qualified biologist. If no option for providing a corridor is available, Table 1 may be used with the required measures in Table 2 alone.

b. The measures in Table 2 are implemented, where applicable, to minimize the impacts of the adjacent land uses.

2. For wetlands that score three to four habitat points, only the measures in Table 2 are required for the use of Table 1.

3. If an applicant chooses not to apply the mitigation measures in Table 2, or is unable to provide a protected corridor where available, then Table 3 must be used.

4. The buffer widths in Tables 1 and 3 assume that the buffer is vegetated with a native plant community appropriate for the ecoregion. If the existing buffer is unvegetated, sparsely vegetated, or vegetated with invasive species that do not perform needed functions, the buffer should either be planted to create the appropriate plant community or the buffer should be widened to ensure that adequate functions of the buffer are provided.

Table 1 – Wetland Buffer Requirements When Implementing Mitigation Measures
Wetland Category	Buffer Width (in Feet) Based on Habitat Score
Wetland Category	3 – 4	5	6 – 7	8 – 9
Category I: Based on total score	75	105	165	225
Category I: Bogs and wetlands of high conservation value	190			225
Category II (all)	75	105	165	225
Category III (all)	60	105	165	225
Category IV (all)	40

Table 2 – Required Mitigation Measures to Minimize Impacts to Wetlands
Disturbance	Required Measures to Minimize Impacts
Lights	• Direct lights away from wetland
Noise	• Locate activity that generates noise away from wetland • If warranted, enhance existing buffer with native vegetation plantings adjacent to noise source • For activities that generate relatively continuous, potentially disruptive noise, such as certain heavy industry or mining, establish an additional 10-foot heavily vegetated buffer strip immediately adjacent to the outer wetland buffer
Toxic runoff	• Route all new, untreated runoff away from wetland while ensuring wetland is not dewatered • Establish covenants limiting use of pesticides within 150 feet of wetland • Apply integrated pest management
Stormwater runoff	• Retrofit stormwater detention and treatment for roads and existing adjacent development
	• Prevent channelized flow from lawns that directly enters the buffer
	• Use low intensity development techniques (per PSAT publication on LID techniques)
Change in water regime	• Infiltrate or treat, detain, and disperse into buffer new runoff from impervious surfaces and new lawns
Pets and human disturbance	• Use privacy fencing OR plant dense vegetation to delineate buffer edge and to discourage disturbance using vegetation appropriate for the ecoregion • Place wetland and its buffer in a separate tract or protect with a conservation easement
Dust	• Use best management practices to control dust
Disruption of corridors or connections	• Maintain connections to off-site areas that are undisturbed • Restore corridors or connections to off-site habitats by replanting

Table 3 – Wetland Buffer Requirements if Table 2 Is Not Implemented or Corridor Is Not Provided
Wetland Category	Buffer Width (in Feet) Based on Habitat Score
Wetland Category	3 – 4	5	6 – 7	8 – 9
Category I: Based on total score	100	140	220	300
Category I: Bogs and wetlands of high conservation value	250			300
Category II: (all)	100	140	220	300
Category III (all)	80	140	220	300
Category IV (all)	50

(Ord. 1257-17 § 1 (Exh. A))

17.10.110 Exemptions of small wetlands.

The following wetlands may be exempt from the requirement to avoid impacts and they may be filled if the impacts are fully mitigated based on the remaining actions in SMC 17.10.140. If available, impacts should be mitigated through the purchase of credits from an in-lieu fee program or mitigation bank, consistent with the terms and conditions of the program or bank. In order to verify the following conditions, a critical area study for wetlands meeting the requirements in SMC 17.10.130 must be submitted:

A. All isolated Category IV wetlands less than 4,000 square feet that:

1. Are not associated with riparian areas or their buffers;

2. Are not associated with shorelines of the state or their associated buffers;

3. Are not part of a wetland mosaic;

4. Do not score five or more points for habitat function based on the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029, or as revised and approved by Ecology);

5. Do not contain a priority habitat or a priority area for a priority species identified by the Washington Department of Fish and Wildlife, do not contain federally listed species or their critical habitat, or species of local importance per Washington Department of Fish and Wildlife 2008 Priority Habitat and Species List or as revised.

B. Wetlands less than 1,000 square feet that meet the above criteria and do not contain federally listed species or their critical habitat are exempt from the buffer provisions contained in this chapter.

C. Buffers of a small wetland may be altered only when the alteration and design will result in a net improvement of the functional value of the wetland and its buffer.

1. Averaging Buffer Widths. The width of a buffer of a small wetland may be averaged, thereby reducing the width of a portion of the buffer and increasing the width of another portion, if all of the following requirements are met:

a. Averaging will not impair or reduce the habitat, water quality purification and enhancement, stormwater detention, groundwater recharge, shoreline protection and erosion protection and other functions of the wetland or buffer;

b. The total area of the buffer on the subject property is not less than the buffer which would be required if averaging were not allowed; and

c. No part of the width of the buffer is less than 75 percent of the required width or 35 feet, whichever is greater.

d. Where a legally established and constructed public roadway transects a wetland buffer, the department may approve a modification of the standard buffer width to the edge of the roadway if the isolated part of the buffer does not provide additional protection of the wetland and provides insignificant biological, geological or hydrological buffer functions relating to the wetland. If the resulting buffer distance is less than 50 percent of the standard buffer for the applicable wetland category, no further reduction shall be allowed. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.120 Single-family residence on existing legal lots with streams or wetlands.

The applicant may develop a single-family residence and ordinary residential improvements in a wetland, wetland buffer, or stream buffer on an existing legal lot if all the following requirements are met:

A. There is no alternate location for the single-family residence and ordinary residential improvements on the subject property outside the wetland, wetland buffer or stream buffer;

B. All new structures on the subject property are constructed in areas that will minimize disruption to the critical area and buffer;

C. Impacts to the wetland, wetland buffer, or stream buffer from the development are mitigated and restored to the maximum extent possible;

D. When necessary to ensure the effectiveness of mitigation or restoration, the city may require annual monitoring reports to be provided to the city by the property owner until the mitigation and/or restoration has been in place for up to 10 years and the success standards have been met;

E. The construction and use of the single-family residence and ordinary residential improvements are consistent with all other applicable law, including, but not limited to, this title;

F. Low impact development techniques that allow for a greater amount of stormwater to infiltrate into the soil should be encouraged to reduce runoff; and

G. All development activities on the subject property are consistent with a site development plan approved by the city which may include requirements to reduce the impact on the critical area and buffer from the construction and use of the single-family residence and ordinary residential improvements. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.130 Critical area study content requirements for streams or wetlands.

A critical area study is required to be prepared by a qualified professional with experience with the relevant type of habitat for any development activity allowed under SMC 17.10.120 or 17.10.160. Depending on the characteristics of the site and the information submitted by the applicant, the city may require any or all of the following as part of the critical area study:

A. A map drawn to scale or survey showing the following information:

1. The edge of the wetland based on the approved federal wetland delineation manual and applicable regional supplement;

2. The wetlands characteristics and plant communities based on the U.S. Fish and Wildlife Service Classification of Wetlands and Deep Water Habitats in the U.S.;

3. Stream corridors, name (if named) and stream type based on the State Department of Natural Resources’ Official Water Type Maps; and

4. Identification of any species of local importance, priority species, or endangered, threatened, sensitive, or candidate species that make use of the area including, but not limited to, nesting, breeding and feeding areas.

B. A description of the streams and wetlands within 200 feet of the subject development, including buffers, drainage systems entering and leaving the site, a list of observed and documented plant and wildlife species, a description of the relative abundance of documented plant and wildlife species and a description of the method used for flagging the wetlands edge, stream corridor and buffers.

C. A description and illustration of proposed development activities allowed under this chapter within streams, wetlands, or buffers.

D. A description of any previous disturbances to the streams, wetlands, or buffers.

E. A summary of the methodology used to conduct the study.

F. A proposed classification of the streams and wetlands based on SMC 17.10.100 and an explanation or rationale for the proposed rating.

G. A mitigation plan which meets the requirements of SMC 17.10.140.

H. A stream relocation plan which meets the requirements of SMC 17.10.160(A)(7), if applicable.

I. A discussion of existing functional values of the stream(s), wetland(s) and buffers.

J. A discussion of the changes to stream, wetland and buffer functional values resulting from the proposed development activity. The city will assist landowners applying for permits to develop a single-family home in gathering the required information.

K. A detailed discussion of direct and indirect potential impacts on habitat by the project, including water quality impacts. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.140 Mitigation plan requirements for streams or wetlands.

A. Unless otherwise provided by this chapter, mitigation shall be required for loss of area or functional value of wetlands, streams and buffers. When mitigation is required by this chapter, it shall address restoration, rehabilitation and compensation in accordance with the following requirements:

1. Restoration is required when a wetland, stream, or buffer has been altered prior to project approval, unless the alteration was authorized by law; or when streams, wetlands and/or buffers are temporarily affected by construction or any other temporary phase of a project;

2. Mitigation is required when a wetland, stream, or buffer is permanently altered as a result of project approval or activity;

3. Wetland acreage shall be replaced at a ratio of 4:1 for Category I wetlands, 3:1 for Category II wetlands, 2:1 for Category III wetlands and 1.5:1 for Category IV wetlands, to compensate for the loss of functional values over time and the unproven nature of wetland creation/restoration projects and mitigation ratios for enhancement are 16:1 for Category I wetlands, 12:1 for Category II wetlands, 8:1 for Category III wetlands and 6:1 for Category IV wetlands;

4. On-site mitigation is preferred so as to assure, to the greatest extent feasible, that the plan results in mitigation for direct impacts resulting from the alteration;

5. Off-site mitigation within the same drainage basin will be preferred to on-site mitigation when the results can achieve greater benefits or functions than on-site mitigation, or would restore or enhance functions that are limiting or important to the health of the watershed;

6. Mitigation shall be completed prior to the completion and final approval of any development activity for which mitigation measures have been required.

B. The mitigation plan shall include:

1. A baseline study that analyzes the existing functional values of the critical area and buffer, functional values that will be lost and the system’s functional values after mitigation;

2. Specific goals and objectives, performance standards and monitoring and maintenance measures;

3. Specify how lost functional values will be replaced;

4. Specify when mitigation will occur relative to project construction and to the requirements of permits required by other jurisdictions;

5. Contingency provisions if the performance standards are not met by the end of the monitoring period for the mitigation area for at least five years for plant installation and 10 years for woody vegetation to determine whether the plan was successful;

6. Provisions for a bond or a series of bonds to assure that work is completed in accordance with the plan and that restoration or rehabilitation is performed if any portion of the mitigation project fails within three years of implementation; and

7. Address the need for and, when appropriate, determine the width of the buffer adjacent to any altered wetland edge.

C. Mitigation plans shall be approved prior to any development activity.

D. Alternative Approaches to Compensatory Mitigation. Mitigation for lost or diminished wetland and buffer functions shall rely on the approaches listed below.

1. Wetland Mitigation Banks. Credits from a certified wetland mitigation bank may be used to compensate for impacts located within the service area specified in the mitigation bank instrument. Use of credits from a wetland mitigation bank certified under Chapter 173-700 WAC is allowed if:

a. The approval authority determines that it would provide appropriate compensation for the proposed impacts; and

b. The impact site is located in the service area of the bank.

c. The proposed use of credits is consistent with the terms and conditions of the certified mitigation bank instrument.

d. Replacement ratios for projects using bank credits is consistent with replacement ratios specified in the certified mitigation bank instrument.

2. In-Lieu Fee Mitigation. Credits from an approved in-lieu fee program may be used when all of the following apply:

a. The approval authority determines that it would provide environmentally appropriate compensation for the proposed impacts.

b. The proposed use of credits is consistent with the terms and conditions of the approved in-lieu fee program instrument.

c. Projects using in-lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant’s qualified wetland professional using the credit assessment method specified in the approved instrument for the in-lieu fee program.

d. The impacts are located within the service area specified in the approved in-lieu fee instrument. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.150 Buffer requirements for streams.

Buffers shall be required for all streams regulated by this chapter. Required stream widths are as stated in this section.

A. Standard required widths for stream buffers are as follows:

1. For a Type S stream: 150 feet;

2. For a Type F (2) stream: 150 feet;

3. For a Type F (3) stream: 100 feet;

4. For a Type Np stream: 50 feet; and

5. For a Type Ns (5) stream: 50 feet.

B. Measurement. For streams, the buffer shall be measured horizontally in a landward direction from the ordinary high water mark, respectively.

C. Where increased buffers to streams are adjacent to erosion or landslide hazard areas, the buffer shall include such areas. Where the horizontal distance of the area is greater than the required standard buffer, the buffer shall be extended to a point 25 feet beyond the top of the bank. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.160 Allowed development activities in streams, wetlands and buffers.

The following development activities may occur in streams, wetlands and buffers, if no other feasible location exists; provided, that such activities are designed to minimize impacts, includes a critical area study, which meets the requirements of SMC 17.10.130 and are mitigated per the requirements of SMC 17.10.140:

A. Allowed Development Activities in Streams.

1. Utility lines, hydroelectric power generating facilities and other utility facilities;

2. Public and private roadway crossings;

3. Bridge construction and culvert installations;

4. Bank protection and flood protection, including flow control structures for regional retention/detention systems;

5. In-stream fish and/or wildlife habitat enhancement;

6. Activities and mitigation authorized by this chapter including stream restoration, enhancement and relocation that increases functional value;

7. Stream relocation when a plan is submitted as part of the critical areas study which demonstrates that the following criteria are met:

a. The relocation will improve water quality, fish or wildlife habitats, wetland recharge (if hydrologically connected to a wetland);

b. The plan must contain and show the following information: a topographic survey showing existing and proposed topography and location of the new stream channel; provisions for filling and revegetating the prior channel, if appropriate;

c. Relocation will maintain or improve hydrologic function;

d. Natural materials and vegetation normally associated with the stream will be utilized;

e. Spawning, rearing and nesting areas will be created, if applicable;

f. Fish populations will be reestablished, if applicable; and

g. Water flow characteristics compatible with fish habitat areas will be restored;

8. Water-dependent and water-related development activities allowed by the shoreline management master program, when adopted in areas subject to the Shoreline Management Act, Chapter 90.58 RCW.

B. Allowed Development Activities in Wetlands.

1. Utility lines and facilities, when no other feasible route is available;

2. Public and private roadways, including bridge construction and culvert installation;

3. Wildlife management or viewing structures;

4. Outdoor scientific or interpretive facilities;

5. Other activities and mitigation authorized by this chapter;

6. Enhancement projects where no loss of functional values result; and

7. Up to one acre of nonriparian Category III or IV wetlands can be filled per site if loss of wetland functions is mitigated per SMC 17.10.140.

C. Allowed Development Activities in Buffers.

1. Pedestrian walkways or trails when designed as part of an overall site development plan:

a. Trails should be limited to permeable surfaces no more than five feet in width;

b. Trails should be located in the outer 25 percent of a wetland buffer, where feasible;

c. Wetland buffer widths must be increased to compensate for loss due to the width of the trail;

2. Wildlife management and viewing structures;

3. Fishing access areas, where vehicular parking is provided outside the buffer and foot trails are constructed with natural permeable materials;

4. Outdoor interpretive and scientific study areas;

5. Utility lines and facilities installation, where no reasonably feasible location is available outside the buffer area;

6. Public and private roadways, only if no other reasonably feasible access alternative exists;

7. Development activities allowed by the city’s adopted shoreline management master program in areas subject to the Shoreline Management Act, Chapter 90.58 RCW; and

8. Single-family residence and ordinary residential improvements on an existing legal lot in accordance with requirements of SMC 17.10.120. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.170 Review criteria for development activities in streams, wetlands and buffers.

A. The city shall evaluate each proposed development activity in a stream, wetland, or buffer in accordance with the following hierarchy of goals: avoid impacts; minimize impacts; repair and restore impacts; reduce impacts over time; or mitigate impacts through replacement, restoration, or enhancement of functions.

B. To utilize the provisions set forth in SMC 17.10.160, applicants must submit a critical area study. The city will review the critical area study and proposed development activity in accordance with the following criteria:

1. The development activity will not:

a. Adversely affect water quality;

b. Destroy, damage, or disrupt a fish and wildlife habitat area;

c. Adversely affect drainage or stormwater detention capabilities; or

d. Lead to unstable earth conditions or erosion;

2. The impacts are the minimum necessary to accommodate the development activity and are fully mitigated in accordance with SMC 17.10.140;

3. Any disruption to a critical area will occur in the least sensitive area; and

4. Critical areas or buffers temporarily disrupted during construction will be restored. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.180 Stream and wetland performance standards.

Development on sites with a wetland, stream or buffers shall incorporate the following performance standards in design of the development, as applicable:

A. Lights shall be directed away from the wetland or stream.

B. Activity that generates noise, such as parking lots, generators and residential uses, shall be located away from the wetland or stream, or any noise shall be minimized through use of design and insulation techniques.

C. Toxic runoff from new impervious areas shall be routed away from the wetlands or stream and shall be 100 percent contained.

D. Runoff from other impervious surfaces shall be infiltrated into the buffer.

E. The outer edge of the wetland or stream critical area buffer shall be planted with dense vegetation to limit pet or human use. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.190 Erosion hazard areas – Development standards and permitted alterations.

A. Land clearing, grading, filling and foundation work in an erosion hazard area is allowed only from May 1st to September 30th, except that:

1. Construction outside of this seasonal development limitation may be authorized if the city determines that the hazard area will not be adversely impacted by the proposed construction work or the applicant demonstrates that erosion hazards will be fully mitigated.

2. The city may require geotechnical study of the site, grading, structural improvements, hydrology, soils and stormwater retention studies, erosion control measures, restoration plans and/or an indemnification/release agreement.

3. Timber harvest may be allowed pursuant to an approved forest practice permit issued by the Washington Department of Natural Resources.

B. All development proposals on sites containing erosion hazard areas shall include a temporary erosion control plan consistent with this section and the adopted surface water design manual or as otherwise specified by the Department prior to receiving approval.

C. All subdivisions, short subdivisions, planned unit developments or binding site plans on sites with erosion hazard areas shall comply with the following additional requirements:

1. Except as provided in this section, existing vegetation shall be retained on all lots until building permits are approved for development on individual lots;

2. If any vegetation on the lots is damaged or removed during construction of the site infrastructure, the applicant shall be required to submit a restoration plan to the city for review and approval. Following approval, the applicant shall be required to implement the plan;

3. Clearing of vegetation on lots will only be allowed when the city determines that:

a. Such clearing is a necessary part of a large-scale grading plan;

b. It is not a reasonable alternative to perform such grading on an individual lot basis; and

c. Drainage from the graded area will meet water quality standards established by the adopted surface water design manual.

D. Where the city determines that erosion from a development site poses a significant risk of damage to downstream receiving waters, based either on the size of the project, the proximity to the receiving water or the sensitivity of the receiving water, the applicant shall be required to provide regular monitoring of surface water discharge from the site. If the project does not meet adopted water quality standards established by law, the city may suspend further development work on the site until such standards are met. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.200 Landslide hazard areas – Development standards and permitted alterations.

Repealed by Ord. 1257-17. (Ord. 1152-12 § 2)

17.10.210 Habitat management plan.

A. A habitat management plan is required when the priority habitats and species maps or natural heritage program maps maintained by the zoning and building official, city, or other information, indicates the presence of the following on the site:

1. Habitat for any critical species listed as endangered or threatened; or

2. Habitat for any critical species not already protected pursuant to this chapter.

B. All habitat management plans shall be prepared in consultation with the State Department of Fish and Wildlife. Habitat management plans for critical species listed as endangered or threatened shall be reviewed by the Department of Fish and Wildlife.

C. The city may assist applicants seeking to develop a single-family home on an existing legal lot in preparing a habitat management plan to satisfy the requirements of subsection (A)(2) of this section.

D. Habitat Management Plan Content Requirements. Based on the characteristics of the site and information submitted by the applicant, the building and zoning official may require that all or a portion of the following be included in a habitat management plan:

1. A map drawn to scale or survey showing the following information:

a. All lakes, ponds, streams and wetlands on or adjacent to the subject property, including the name (if named) and ordinary high water mark of each and the stream type or wetland category consistent with SMC 17.10.100(A) and (B);

b. The location and description of the fish and wildlife habitat area on the subject property, as well as any potential fish and wildlife habitat within 200 feet of the subject property as shown on maps maintained by the city; and

c. The location of any observed evidence of use by a critical species;

2. An analysis of how the proposed development activities will affect the fish and wildlife habitat area and any critical species;

3. Provisions to reduce or eliminate the impact of the proposed development activities on any fish and wildlife habitat area and critical species; and

4. The habitat management plan should also address the following issues:

a. Prohibition or limitation of development activities within the fish and wildlife habitat area;

b. Establishment of a buffer around the fish and wildlife habitat area;

c. Retention of certain vegetation or areas of vegetation critically important to the critical species;

d. Limitation of access to the fish and wildlife habitat area and buffer;

e. Seasonal restrictions on construction activities on the subject property;

f. Clustering of development on the subject property; and

g. The preservation or creation of a habitat area for the critical species. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.215 Hillside development and geologically hazardous area performance standards.¹

Repealed by Ord. 1197-14. (Ord. 1159-12 § 1)

17.10.220 Reasonable use allowance.

A. General. If the application of this chapter pertaining to fish and wildlife habitat or stream/wetlands will prevent the applicant from making any economically viable use of the subject property, the applicant may apply for a reasonable use allowance with the director of community development.

B. Criteria for Granting. The director of community development shall grant a reasonable use allowance only when the following criteria are met:

1. The applicant demonstrates that the application of this chapter will deny all economically viable use of the subject property otherwise allowed by applicable law;

2. The development activities involve the least intrusion into and disruption of the critical area necessary to allow an economically viable use of the subject property;

3. The development activities will not cause or result in damage to properties other than the subject property and will not endanger the public health, safety, or welfare;

4. The applicant’s inability to make economically viable use of the subject property has not resulted from any of the following:

a. Prior subdivision or segregation of the subject property, or changes to the boundaries of the subject property through a boundary line adjustment or otherwise;

b. Prior actions taken in violation of this chapter or any local, state, or federal law, or regulation; and

c. Natural constraints on the subject property that would otherwise preclude the proposed development activities.

C. The city may assist applicants in providing the information required in subsection (B) of this section.

D. Critical area impacts allowed under this section shall be mitigated to the extent reasonably feasible.

E. Appeals. The applicant may appeal a decision of the director of community development on a reasonable use allowance application to the hearings examiner pursuant to the provisions of SMC 16.80.090.

F. The development activities authorized by a reasonable use allowance shall not constitute a significant adverse environmental impact under Chapter 17.04 SMC to the critical area(s) for which the allowance is granted. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.230 Transfer of density.

Property affected by application of the setback, buffer and other use restrictions of this chapter may qualify for lot averaging provisions of Chapter 19.44 SMC. (Ord. 1257-17 § 1 (Exh. A); Ord. 1152-12 § 2)

17.10.300 Purpose of regulations.

A. The threat to public health and safety presented by geologically hazardous areas is increased when improper and incompatible development is sited in these areas. Such incompatible development may not only place itself at risk, but also may cause or increase the hazards to surrounding development and land uses. The purpose of this chapter is to designate geologically hazardous areas and to regulate development activities in or near geologic hazard areas to safeguard the public health, safety and welfare.

B. Several geologic conditions influence development on or adjacent to slopes including: slope inclination, soil types, underlying geology, groundwater and seepage, surface water runoff and vegetative cover. If such a site can be sufficiently stabilized through the construction of professionally-engineered on-site improvements, the city may be able to review and issue development permits. This chapter establishes the process by which the city may review proposed improvements whose purpose is to stabilize soils and facilitate subsequent development permit review.

C. It is the intent of this code that development in areas subject to geologic hazards shall be evaluated based on its impacts on the surrounding terrain and geological conditions, not in isolation. Management of the entire natural and manmade systems should be considered during the development review process. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.305 Designation and mapping of geologically hazardous areas.

A. Geologically hazardous areas are landforms characterized by steep slopes and/or susceptibility to landslides, earthquakes or other geological processes. Properties containing landforms exhibiting one or more of the characteristics presented in subsection (C) of this section are hereby designated as geologically hazardous areas and shall be subject to the provisions of this chapter.

B. The approximate location and extent of geologically hazardous areas are shown on the city’s critical area maps within the comprehensive plan environmental element and/or on the Snohomish County Buildable Lands Report. These maps shall be used as a guide for the city, applicants and/or property owners, and may be updated as new critical areas are identified. They do not provide a definitive critical areas designation.

C. Areas susceptible to one or more of the following types of hazards shall be designated as geologically hazardous areas:

1. Landslide hazard areas potentially subject to risk of mass movement due to a combination of geologic, topographic, and hydrologic factors. Landslide areas include areas with any one or more of the following characteristics:

a. Areas of known landslides, earth movement, or containing evidence of past landslides or earth movement;

b. Slopes that are parallel or sub-parallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;

c. Areas potentially unstable because of stream incision and stream bank erosion, or in a stream’s channel migration zone;

d. Areas that are underlain or covered by mass wastage debris or landslide materials;

e. Any area with a slope of 40 percent or steeper and a vertical relief of 10 or more feet and is greater than 1,000 square feet in area, except areas composed of consolidated rock and properly engineered manmade slopes/retained fill;

f. Any areas where the subsurface soils, below five feet in depth, have less than 10 blows/foot (n<10) with a Standard Penetration Test (SPT) ASTM D1586-11; therefore, the soil would be described as very loose, loose, very soft, soft, or medium stiff.

2. Areas that have all of the following characteristics:

a. Slopes steeper than 15 percent except that slopes of less than 15 percent may be considered landslide hazard areas if they have unstable soil and drainage characteristics;

b. Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and

c. Wet season springs or ground water seepage.

3. Seismic hazard areas subject to severe risk of damage as a result of earthquake-induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density, typically in association with a shallow ground water table. Also including any areas where the subsurface soils, below five feet in depth, have less than 10 blows/foot (n<10) with a Standard Penetration Test (SPT) ASTM D1586-11; therefore, the soil would be described as very loose, loose, very soft, soft, or medium stiff. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.310 General provisions.

A. Alteration of geologically hazardous areas and buffers shall be prohibited except as expressly allowed in this chapter. The city may approve, condition or deny proposals based on the degree to which risks posed by geologically hazardous areas to public and private property and to health and safety can be mitigated. In an individual case, conditions may include limitations of or on proposed uses, density modification, alteration of site layout and other changes to the proposal determined appropriate by the director to effectively contribute to risk mitigation.

B. Where the director determines that potential significant adverse impacts cannot be effectively mitigated, or where the risk to public health, safety and welfare, property, or important natural resources is significant notwithstanding mitigation, the proposal shall be denied. The burden of proof shall be on the applicant.

C. The construction of professionally designed structures addressing the risks of earth movement, and employing feasible attendant measures (including but not limited to drainage improvements, specially designed foundations, retaining walls, removal of overburden and other improvements designed to minimize the risk of earth movement, prevent avoidable damage to structures, safeguard adjacent properties, limit risk to inhabitants, and to stabilize the structure in the event of movement) may mitigate and reduce the risk of earth movement on individual properties. Nothing herein shall relieve an owner of any obligation imposed by the state building code or city ordinance to take all reasonable and practical measures available to reduce or eliminate the risk or hazard.

D. The International Residential Code (IRC), and the International Building Code (IBC), as promulgated by the state of Washington and required to be adopted by the city, does not specify a standard regarding lot stability. The provisions of this chapter have been adopted in order to provide reasonable certainty in the permit issuance process. The purpose of these provisions is not to lessen the minimum requirements of the current adopted building code, but rather to define its requirements for city implementation.

E. These provisions were adopted in order to establish a policy that permits shall not be issued for any site where a substantial risk of earth subsidence and landslide hazard exists unless all the following apply:

1. The risks can be defined with reasonable scientific certainty according to the standards of the geotechnical engineering profession and found to be within the minimum factor of safety for the static and seismic conditions of at least 1.5 and 1.15 respectively.

2. Any hazard associated with the site is scientifically ascertained and fully disclosed through the permit process.

F. Notwithstanding any contrary provision of this chapter or the IRC/IBC, all applications for permits received for any site shall be governed by the provisions of this chapter. In addition to all other requirements of these sections, the restrictions and provisions of this chapter shall apply to all building, grading, fill and excavation permits (herein “permits”). Minor permits such as plumbing, mechanical, re-roof and interior alterations are exempt from the requirements of this chapter.

G. Nothing in this chapter should or shall be interpreted to guarantee issuance of a permit with respect to any site unless the requirements of this chapter, and the requirements of the IRC/IBC as amended and interpreted by this chapter, have been met.

H. No Special Duty Created.

1. It is the purpose of this chapter to provide for the health, welfare and safety of the general public, and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter. No provision or term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers, agents, or employees for whom the implementation or enforcement of this chapter shall be discretionary and not mandatory.

2. Nothing contained in this chapter is intended to be, nor shall be, construed to create or form the basis of any liability on the part of the city or its officers, agents, and employees for any injury or damage resulting from the failure of any person to comply with the provisions of this chapter or be a reason or a consequence of any inspection, notice, or order, in connection with the implementation or enforcement of this chapter or by reason of any action of the city related in any manner to enforcement of this chapter by its officers, agents, or employees. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.315 Applicability.

This chapter contains two sets of standards that apply to different land development circumstances. The following provisions of this chapter, geologically hazardous areas, apply to the following development circumstances:

A. Subdivisions, short subdivisions, and planned unit development, approved between October 26, 2006, and the effective date of this code are designated as “modified slope standard developments.” Slope alteration and construction for residential purposes in modified slope standard developments are addressed in SMC 17.10.355 to 17.10.385 and are not subject to SMC 17.10.325 and 17.10.330.

B. Subdivisions, short subdivisions, and planned unit development, approved prior to October 26, 2006, and long plat subdivisions and short plats approved after the effective date of this code, and all individual parcels not included in approved long plat subdivisions or short plats approved between October 26, 2006, and the effective date of this code, are subject to this chapter, excluding all sections that specifically provide standards for “modified slope standard developments.” (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.320 Definitions.

The following terms, when used within this chapter, shall have the following definitions:

“Alteration” shall mean modification of soil or vegetation by any means including mechanical, chemical application, or hand work, in any area designated, or having the potential to be designated as a geologically hazardous area under the provisions of this chapter.

“Anadromous fish” means fish that spawn in fresh water and mature to the marine environment.

“Applicant” means a person who files an application for a permit under this chapter and who is either the owner of the land on which that proposed activity would be located, a contract purchaser, or the authorized agent of such person.

“Architect” shall mean a person licensed to practice architecture by the state of Washington.

“Best available science” shall be determined in accordance with the criteria established in WAC 365-195-900 et seq.

“Buffer” means the zone contiguous with a critical area that is required for the continued maintenance, function, and structural stability of the critical area.

“Building official” shall mean the building official of the city of Sultan.

“Building setback line (BSBL)” means a line beyond which the foundation of a building shall not extend.

“City” means the city of Sultan.

“Clearing” means the destruction and removal of vegetation by any means and includes grubbing vegetation.

“Critical areas” means any of the following areas or ecosystems: critical aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and wetlands as defined by the Growth Management Act (Chapter 36.70A RCW) and this chapter.

“Developable area” means areas outside of any critical area and their required setbacks or buffers.

“Development” means any manmade change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. “Development” also means subdivision of a parcel into one or more lots.

“Director” shall mean the community development director or his or her designee.

“Erosion” means the process by which soil particles are mobilized and transported by natural agents such as wind, rain, frost action, or stream flow.

“Erosion hazard area” means those areas of Sultan containing soils which, according to the USDA Soil Conservation Service, Snohomish County Soil Survey dated 1983, may experience severe to very severe erosion hazard.

“Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland water and/or the unusual and rapid accumulation of runoff or surface waters from any source.

“Flood fringe” means that portion of the floodplain outside of the floodway which is covered by floodwaters during the base flood; it is generally associated with standing water rather than rapidly flowing water.

“Floodway” means the channel of a river or other watercourse and the adjacent land area that must be reserved in order to discharge the base flood without cumulatively increasing the surface water elevation more than one foot.

“General contractor” shall mean a bonded, insured and registered contractor in the state of Washington. A general contractor shall maintain state-required bonding and shall carry general liability insurance in the minimum amount of $1,000,000. The general contractor shall have a current valid state contractor’s license with the state of Washington and a city of Sultan resident or nonresident business license, whichever is applicable.

“Geologically hazardous area(s)” shall mean landforms exhibiting one or more of the characteristics presented in SMC 17.10.305(C).

“Geologist” means a practicing geologist licensed in the state of Washington as a licensed geologist in responsible charge, including experience with landslide evaluation.

“Geotechnical engineer” means a practicing geotechnical/civil engineer licensed as a professional civil engineer in the state of Washington as a geotechnical engineer in responsible charge, including experience with landslide evaluation.

“Hazard areas” means areas designated as frequently flooded or geologically hazardous areas due to potential for erosion, landslide, seismic activity, mine, collapse, or other geologically hazardous conditions.

“Impervious surface” means a hard surface area that either prevents or retards the entry of water into the soil mantle as under natural conditions prior to development or that causes water to run off the surface in greater quantities or at an increased rate of flow from the present under natural conditions prior to development. Common impervious surfaces include, but are not limited to, rooftops, walkways, patios, driveways, parking lots, storage areas, concrete or asphalt paving, gravel roads, packed earthen materials, and oiled macadam or other surfaces which similarly impede the natural infiltration of stormwater.

“Isolated wetland” means those wetlands that are outside of any not contiguous to any 100-year floodplain, lake, river, or stream and have no contiguous hydric soil or hydrophytic vegetation between the wetland and any surface water.

“Lake” means an area permanently inundated by water in excess of two meters deep and greater than 20 acres in size measured at the ordinary high water mark.

“Land surveyor” means a person who holds a Washington State land surveyor’s license.

“Landform” means a geologic feature characterized by physical attributes such as elevation, slope, orientation, stratification, rock exposure, and soil type.

“Landslide hazard areas” means areas potentially subject to risk of mass movement due to a combination of geologic, topographic, and hydrologic factors.

“Lead design professional” means the person designated by the applicant to oversee and coordinate the permit review process on behalf of the applicant.

“Minimized” or “minimal” shall mean that the applicant has demonstrated to the satisfaction of the building official that the applicant has utilized best available science and commonly accepted engineering and architectural practice and has reduced, to the extent possible, the risks associated with development of the property.

“Minor utility project” means the placement of a utility pole, street sign, anchor, vault, or other small component of a utility facility, where the disturbance of an area is less than 75 square feet.

“Mitigation” means avoiding, minimizing, or compensating for adverse impacts on critical areas. Mitigation shall use any of the actions that are listed below in descending order of preference:

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

2. Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts; or

3. Rectifying the impact by repairing, rehabilitating, or restoring the affected critical areas; or

4. Reducing or eliminating the impact over time by preservation or maintenance operations during the life of the development proposal; or

5. Compensating for the impact by replacing, enhancing, or providing substitute critical areas; and

6. Monitoring the impacts and compensation project, and taking appropriate corrective measures. Mitigation for individual actions may include a combination of the above.

“Modified slope standard developments” means land within the boundaries of long plat subdivisions and short plats, granted final approval by the city of Sultan between October 26, 2006, and January 23, 2014.

“Monitoring” means the collection of data by various methods for the purpose of understanding natural systems and features, evaluating the impact of development proposals on such systems, and assessing the performance of mitigation measures imposed as conditions of development.

“Native growth protection easement (NGPE)” means an easement granted to the city of Sultan for the protection of native vegetation within a critical area or its associated buffer. The NGPE shall be recorded on the appropriate documents of title and filed with the Snohomish County recordings division.

“Native vegetation” means plant species that are indigenous to the area in question.

“Ordinary high water mark” means the mark that will be found by examining the bed and banks of a stream and ascertaining where the presence and action of waters are so common and usual, and so long maintained in all ordinary years, that the soil has a character distinct from that of the abutting upland, in respect to vegetation. In any area where the ordinary high water mark cannot be found, the line of mean high water shall substitute. In braided channels and alluvial fans, the ordinary high water mark or substitute shall be measured so as to include the entire stream feature.

“Potable water” means water that is safe and palatable for human use.

“Practical alternative” means an alternative that is available and capable of being carried out after taking into consideration cost, existing technology, and logistics in light of overall project purposes, and having less impacts to critical areas.

“Priority habitat” means habitat types or elements with unique or significant value to one or more species as classified by the State Department of Fish and Wildlife.

“Project area” means all areas within 50 feet of the area proposed to be disturbed, altered, or used by the proposed activity or the construction of any proposed structures.

“Reasonable use” means the minimum to which a property owner is entitled under applicable state and federal constitutional provisions, including takings and substantive due process.

“Site” means the entire area within the boundaries, as described in a legal description, of the property that is to be developed under the permit for which the applicant has applied.

“Slope” means the degree of tilt of a landform from the horizontal. A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least 10 feet of vertical relief.

“Stable” shall mean that the risk of damage to the proposed development, or to adjacent properties, from soil instability is within the minimum safety factors for the static and seismic conditions of at least 1.5 and 1.15, respectively, and the building official has determined that the proposed development will not increase the potential for soil movement.

In order to meet the definition of “stable” the geotechnical report shall include identified hazards for the property and the mitigation measures proposed to reduce or correct the hazards along with measures taken to mitigate potential impacts from the remaining hazards, including all on- and off-site measures taken to correct or reduce the risk. These shall be fully disclosed to the applicant and future owners, heirs and assigns in the covenant required to be executed in accordance with provisions of this chapter, in which case the defined risk may be approved as an acceptable condition.

“Stream” means water contained within a channel, either perennial or intermittent, and classified according to WAC 222-16-030 or 222-16-031 and as listed under “water typing system.” Streams also include natural watercourses modified by man. Streams do not include irrigation ditches, or other wholly artificial watercourses, except those that directly result from the modification to a natural watercourse.

“Structural engineer” means a person licensed to practice structural engineering by the state of Washington.

“Structural fill” shall mean any fill placed below structures, including slabs, where the fill soils are intended to support loads without unacceptable deflections or shearing. Structural fill should be placed above unyielding native site soils compacted in accordance with an approved geotechnical report prepared utilizing best engineering science.

“Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization have been achieved.

“Understory” means the vegetation layer of a forest that includes shrubs, herbs, grasses, and grass-like plants, but excludes trees.

“Utility” means a service and/or facility that produces, transmits, carries, stores, processes, or disposes of electrical power, gas, potable water, storm water, communications (including, but not limited to, telephone and cable), sewage, oil and the like.

“Vegetation” means any and all organic plant life growing below, at, and above the soil surface.

“Vegetation alteration” means any clearing, grading, cutting, topping, limbing, or pruning of vegetation.

Wetland Edge. Delineation of the wetland edge shall be based on the approved federal wetland delineation manual and applicable regional supplements or as revised.

Wetland Rating System. Wetlands shall be rated according to the Washington State Wetland Rating System for Western Washington, Department of Ecology 2014 Update, Publication No. 14-06-029 or as revised. (Ord. 1347-21 § 43; Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.325 Performance standards – Alteration of geologically hazardous areas.

A. Alteration of land with slopes over 40 percent shall be prohibited.

B. Alteration of slopes between 15 percent and 40 percent, and on slopes between 10 percent and 15 percent that have unstable soil or drainage characteristics, may be permitted pursuant to an approved critical area report and mitigation plan, developed according to the requirements of SMC 17.10.345 that certifies the following:

1. The development will not increase or concentrate surface water discharge or sedimentation to adjacent sites beyond predevelopment conditions; and

2. The development will not decrease slope stability on the development site or on adjacent sites.

C. Development within a geologically hazardous area and/or buffer shall be designed to meet the following basic requirements. Alternative approaches may be allowed if it can be demonstrated through a geotechnical study that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this chapter. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development design standards are:

1. The proposed development shall not increase the risk of landslide occurrences;

2. Structures and improvements shall avoid geologically hazardous areas and other critical areas;

3. Structures and improvements shall minimize alterations to the natural contour of the slope. Foundations shall be tiered where possible to conform to existing topography;

4. Structures and improvements shall be located, and clustered, if appropriate, to preserve the most critical portion of the site and its natural landforms and vegetation;

5. The proposed development shall not result in greater risk to neighboring properties, or a need for increased buffers on neighboring properties;

6. The use of engineered retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes. Engineered retaining walls shall not exceed 15 feet in height and preferably should be less than eight feet in height. Engineered retaining walls over eight feet in height shall be allowed by the director only when it can be demonstrated that no other reasonable alternative exists. Riprap retaining walls should not exceed eight feet in height. Wherever possible, retaining walls should be designed as structural elements of the building foundation;

7. Development shall be designed to minimize impervious lot coverage. Use of common access drives and utility corridors is encouraged;

8. Disturbed areas of a site not used for buildings, roads and other improvements shall be replanted promptly pursuant to an approved landscape plan;

9. Significant vegetation and habitat should be preserved to the greatest extent feasible;

10. Removal of vegetation from geologically hazardous area or related buffer shall be prohibited unless otherwise provided through an approved alteration plan;

11. Limited pruning or selective removal of dead, diseased or damaged branches; and limited removal of specified branches that block views as shown on a professionally prepared landscape plan may be approved by the director if the activity will not adversely affect slope stability; and

12. Seasonal Restriction. Clearing shall be allowed only from April 1st to October 31st of each year; provided, that the city may extend or shorten the designated seasonal restrictions on a case-by-case basis depending on actual weather conditions.

D. Utility Lines and Pipes. Utility lines and pipes, including stormwater conveyance lines, shall be permitted in geologically hazardous areas pursuant to reasonable use provisions of SMC 17.10.390. Engineering designs are required for all such installations. Such designs shall address all geologic hazards, providing industry standard safety factors.

E. Point Discharges. Point discharges from surface water facilities and roof drains onto or upstream from a landslide hazard area shall be prohibited except as follows:

1. The discharge is conveyed via continuous storm pipe downslope to a point where the discharge will not create or contribute to erosion issues; or

2. The discharge is released at flow durations matching predeveloped conditions, with adequate energy dissipation, into existing channels that previously conveyed stormwater runoff in the predeveloped state; or

3. The discharge is dispersed upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and stormwater runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope.

F. Subdivisions. Applications for the division of land in geologically hazardous areas and associated buffers are subject to the following:

1. Land that is located wholly within a geologically hazardous area or its buffer may not be subdivided.

2. Land that is located partially within a geologically hazardous area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the geologically hazardous area and its buffer.

3. Access roads and utilities may be permitted within the geologically hazardous area and associated buffers if the director determines based on an approved critical area report and mitigation plan that the road will not increase the risk to adjacent sites and that no other feasible alternative exists.

4. Erosion control plans shall be required for all regulated activities within a geologically hazardous area. The erosion control plans shall be consistent with the provisions of the Stormwater Management Manual for Western Washington and prepared pursuant to a plan approved by the city engineer. A master drainage plan shall be prepared for large projects as required and approved by the city engineer.

5. Prohibited Development. On-site sewage disposal systems, including drain fields, shall be prohibited within a geologically hazardous area and related buffers. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.330 Performance standards – Geologically hazardous area buffers.

In order to minimize the risk of damage to personal health and property due to a geologically hazardous area, a buffer of undisturbed vegetation as provided in this section shall be maintained between all regulated activities and a geologically hazardous area. Activities, development and uses on sites containing geologic hazards shall meet the following buffer requirements:

A. A buffer shall be established from the top, toe, and edges of all slope or landslide hazard areas with 10 feet or more of vertical elevation change. The size of the buffer shall be sufficient to eliminate or minimize the risk of damage to persons or property resulting from landslide and erosion caused in whole or part by the activity, development, or use as determined by the director based upon the director’s review of and concurrence with the geotechnical report prepared by a qualified professional and consistent with the following criteria:

1. For landslide hazard areas with slopes from 15 to 39 percent, the minimum buffer shall be equal to one-half the height of the slope or a minimum of 25 feet, whichever is greater. The buffer may be reduced by 25 percent or to a minimum of 25 feet, whichever is greater, when a qualified professional demonstrates to the director’s satisfaction that the reduction will adequately protect the proposed development, adjacent areas, developments, uses, and the subject critical area.

2. For slopes from 15 to 39 percent that are not landslide hazard areas there is no specified minimum buffer. The buffer will be established by a qualified professional to the director’s satisfaction.

3. For slopes 40 percent or greater that are not landslide hazard areas, the minimum buffer shall be equal to the height of the slope or 25 feet, whichever is greater. The buffer may be reduced to a minimum of 15 feet when a qualified professional demonstrates to the director’s satisfaction that the reduction will adequately protect the proposed development, adjacent areas and uses, and the subject critical area.

4. For landslide hazard areas with slopes 40 percent or greater, the minimum buffer shall be equal to the height of the slope or 25 feet, whichever is greater. The buffer may be reduced by 50 percent or to a minimum of 25 feet, whichever is greater, when a qualified professional demonstrates to the director’s satisfaction that the reduction will adequately protect the proposed development, adjacent areas and uses, and the subject critical area.

5. For slopes with a vertical elevation of 25 feet or less, the minimum buffer shall be equal to one-half the height of the slope, regardless of the slope percent; provided, that there are no other factors that pose a slope stability risk.

B. Development must maximize retention of existing vegetation in geologically hazardous areas and their buffer areas. Where removal of vegetation cannot be avoided in order to accommodate a permitted development or to stabilize a slope, an acceptable plan to fully revegetate and restabilize affected areas must be provided as part of the development application, and approved as a condition of any permit issued.

C. To improve the functional attributes of buffer areas, the director may require that the buffer be enhanced through planting of natural vegetation, in the form of ground cover, shrubs or trees to assist in stabilizing the ground surface.

D. The buffer shall be maintained and preserved through a protective easement or other appropriate permanent protective covenant recorded with the county in a form approved by the city and providing for any necessary ongoing monitoring and maintenance.

E. Structures shall be set back such that construction activities and outdoor living areas do not infringe upon the required buffer edge. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.335 Minimum required application submittals.

A. The applicant shall submit a complete plan set submittal and permit application and specifications for the proposed development consisting of the following:

1. Site plan with topography and planned building locations:

a. Map scale, north arrow, legal description, tax account parcel numbers, easements, and lot property lines.

b. Building plans with cross sections sufficient to show foundation design.

c. Existing grade contour lines, at two-foot intervals.

d. All distances between existing structures on the site and approximate distances of existing habitable structures on adjacent sites within 25 feet of property lines (all adjacent sites which could affect or be affected by the proposed development shall be shown).

e. Lowest footing or basement slab elevation of existing and proposed structures on the property and on adjacent properties to the extent that such information is reasonably available, and proposed finish floor elevations. A cross section of the planned conditions is required.

f. The location of existing sanitary sewers, stormwater drainage facilities, wells, piezometers, subsurface drains, and other sewer/drainage facility components on, and adjacent to, the site.

g. The location of all existing underground utilities on, and adjacent to, the site including, but not limited to, telephone, cable television, gas, electric and water utilities, vaults, fire hydrants and other cables, wires, meters and drainage pipes.

h. A separate topographical drawing shall be submitted showing proposed grade contours at two-foot intervals. This drawing shall include the bottom of proposed footing elevations including all stepped footing elevations.

2. Geotechnical report including general and specific soils and geotechnical information developed pursuant to Section 1802 of the International Building Code, as that section now exists or may hereafter be amended by the State Building Code Council and/or the city of Sultan. (See subsection (B) of this section for geotechnical report standards.)

3. Architectural and structural plans with design calculations stamped and signed by licensed design professionals of the state of Washington.

4. Owner and professional declarations.

5. Acknowledgment that the approval and issuance of permit may require obtaining bonds, covenants and contractor general liability insurance in accordance with the detailed requirements stated below.

B. The geotechnical report required in subsection (A)(2) of this section shall include the following:

1. An analysis of material gathered through appropriate explorations and an analysis of soil characteristics conducted by or under the supervision of the engineer in accordance with the standards adopted by the American Society of Testing and Materials (ASTM) or other applicable standards utilizing best available science.

2. The report must provide subsurface data to support the engineer’s conclusions regarding slope stability. The minimum factor of safety for the static and seismic conditions shall be at least 1.5 and 1.15, respectively. The geotechnical engineer shall provide documentation of how the horizontal acceleration value was obtained and derivation of the safety factors.

3. The geotechnical engineer shall confirm that the planned improvements will adequately stabilize the site grades shown on the topography map, and shall verify the grades shown on the topography map based upon the geotechnical engineer’s own site observations.

4. The geotechnical report may be specifically written for an individual lot or it may be written for a group of contiguous lots within the same landform.

C. If any item in subsection (B) of this section is inapplicable to a particular project, a letter or a report shall be provided to the director stamped by the appropriate licensed design professional, with sufficient information or data to demonstrate why the item is inapplicable. The director may utilize appropriate licensed consultants to determine if generally accepted engineering practice requires submission of an item otherwise not required in subsection (B) of this section. When consultants are used to determine if generally accepted engineering practice requires submission of any otherwise required item, the cost of review shall be paid by the applicant.

D. The applicant shall submit, consistent with the findings of the geotechnical report, detailed structural plans with corresponding calculations prepared and stamped by the structural engineer of record. When architectural plans incorporate such structural details, said plans shall be stamped and signed by the structural engineer of record. All other architectural plans may be prepared by an architect, designer, builder or lay person.

E. The city may require submittal of bonds, frozen funds, or other instruments of credit as a surety for improvements required as a condition of a permit for development in geologically hazardous areas or their buffers (see SMC 17.10.380(A)).

F. Prior to final issuance of a permit for a project subject to surety provisions of this code, the applicant shall submit documentation of required bonds, frozen funds or other instrument of credit in a form satisfactory to the city attorney and sufficient to guarantee construction of the improvements proposed to stabilize the site. The applicant shall submit a copy of the contractor’s general liability insurance. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.340 Review to determine compliance with engineering practice and best available science.

A. The city may require professional peer review of the plan set submittals accompanying the permit application by a civil engineer, geotechnical engineer, and/or structural engineer as may be necessary and determined by the building official or director, in order to determine whether the plan set submittals were prepared in accordance with generally accepted engineering practice or the practice of the particular engineering or design specialty and are based upon best available science. The full cost of such peer review shall be paid in full by the owner/applicant within 30 days of billing by the city. Failure to make timely payments shall result in cessation of city plan review services on the application.

B. The professional peer review requirement set forth in subsection (A) of this section may be selectively waived at the reasonable discretion of the director, provided the responsible project geotechnical engineer, civil engineer or structural engineer provides written concurrence, determination, details, facts and/or data supporting the position that individual site conditions warrant an exemption from outside professional peer review. Once waived, the building official shall not be required to inquire further into the adequacy of any report, plans, or data, but rather may rely upon the submittals as warranted by the owner/applicant as if reviewed by the city’s consultant. Nothing herein shall relieve the owner/applicant of the obligation to submit a complete application fulfilling all the requirements of this chapter and the IRC/IBC.

C. The determination of the peer review, regarding whether a submittal complies with generally accepted practice, is based on best available science, and/or requires revisions to comply with the same, shall be final and binding upon the applicant and director. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.345 Critical area report requirements for geologically hazardous areas.

A. A critical areas report for geologically hazardous areas must meet the geotechnical report requirements of this chapter including all of the following standards:

1. It shall address the area of the proposed activity and all geologically hazardous areas within 200 feet of the project area or that have potential to affect or be affected by the proposal.

2. It shall contain an assessment of geological hazards including at a minimum all of the following information:

a. A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard areas addressed in the report; an assessment of the geologic characteristics and engineering properties of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties; a review of the site history regarding landslides, erosion, and prior grading; and an evaluation of the vulnerability of the site to seismic and other geologic events. Soils analysis shall be performed in accordance with accepted classification systems in use in the region.

b. A recommendation for the minimum buffer and minimum building setback from all geologic hazards based upon the geotechnical analysis. The minimum buffer should not be less than those in SMC 17.10.330.

c. When hazard mitigation is required, the report shall specifically address how the activity maintains or reduces the preexisting level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the preexisting conditions following abandonment of the activity.

B. Where a valid geotechnical report has been prepared within the last five years for a specific site, and where the proposed land use activity and surrounding site conditions are unchanged, said report may be incorporated into the required critical area report. Further updated analysis may be required if site-specific conditions so warrant in the director’s discretion. The applicant shall submit a geotechnical assessment detailing any changed environmental conditions associated with the site.

C. Geotechnical studies for properties containing more than one type of hazard area shall meet the report requirements for each relevant type.

D. Monitoring Surface Waters. If the director determines that there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to the receiving waters, or the sensitivity of the receiving waters, the critical area report shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the director. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.350 Issuance and denial of permits.

A. Permit Issuance. In addition to the permit processes required for a particular project in any other applicable provision of the Sultan Municipal Code, all of the following requirements must be satisfied before any building, grading, fill or excavation permit will be issued in a geologically hazardous area under the provisions of this chapter:

1. A geotechnical report has been submitted and approved;

2. Plans and specifications have been submitted incorporating the recommendations of the geotechnical report and said plans have been approved;

3. Any required declarations, disclosures, covenants and waivers have been submitted and approved;

4. Proof of any required bonds, cash deposits and general liability insurance have been submitted and approved by the city;

5. When peer review has been required, all submittals have been determined to have been prepared in accordance with generally accepted engineering practice;

6. Peer review concurrence for permit issuance has been received by the building official; and

7. All other applicable provisions of the Sultan Municipal Code, including but not limited to the other chapters of the critical areas code, the zoning code, the land division code, and the Stormwater Management Manual for Western Washington have been reviewed and approved by the appropriate city official.

B. Permit Denial. The reasons for permit denial shall be set forth in writing to the owner/applicant. In making a determination of permit denial, the director shall consider not only the land which is the subject of the application, but in addition, the surrounding area which may be adversely affected if the permit were granted. The following criteria shall result in the denial of issuance of any building, grading, fill or excavation permit:

1. The land on which any building, grading, filling, or excavation is proposed is in the determination of the director unsuitable for improvement due to excessively steep slopes, unsatisfactory foundation support, instability or unsuitable topography, that the applicant is unable to mitigate per the requirements in SMC 17.10.325; or

2. The resulting development would increase the potential of soil movement resulting in an unacceptable risk of damage to adjacent properties or an unreasonable risk of damage to the proposed development; or

3. Existing or increased conditions of unacceptable/excessive flooding, seepage, high water table, or inadequate drainage; or

4. Presence or increase of other hazardous conditions posing an unreasonable risk to public health, safety, or welfare; or

5. The noted site dangers or geologic hazards are not minimized to the extent possible by the use of best available science and generally accepted engineering and architectural practice.

C. Appeal. The director’s decision on any permit issued under this chapter constitutes the city’s final decision, and may be appealed only to Snohomish County superior court in accordance with the Land Use Petition Act, Chapter 36.70C RCW. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.355 Designation of “modified slope standard developments.”

A. The remaining sections of this chapter (SMC 17.10.355 through 17.10.385) provide for additional development requirements on steep slopes in subdivisions and short subdivisions granted final approval between October 26, 2006, and January 23, 2014. Such developments shall be referred to as “modified slope standard developments.”

B. Development on slopes exceeding 40 percent in modified slope standard developments may be proposed, reviewed, and permitted under the provisions of SMC 17.10.355 through 17.10.385. These sections do not apply to any property outside of the boundaries of specifically approved subdivisions and short subdivisions approved during this specific period of time.

C. All other properties in the city, whether an individually owned lot of record, or a lot inside of a subdivision or a short plat approved prior to October 26, 2006, or a subdivision or a short plat approved after the effective date of this code are not “modified slope standard developments” and shall not apply for any development as modified slope standard developments. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.360 Alteration of landslide hazard areas in modified slope standard developments.

A. Alteration of landslide areas on slopes between 15 percent and 40 percent in modified slope standard developments shall be proposed and reviewed, under the provisions of SMC 17.10.325.

B. Alteration of slopes for the purpose of construction of residential structures, or the infrastructure needed to support residential structures, on slopes exceeding 40 percent in modified slope standard developments shall be proposed and reviewed under provisions of SMC 17.10.355 through 17.10.385.

C. Applications for alteration of slopes in modified slope standard developments and/or construction for purposes other than residential development or the infrastructure needed to support residential development in modified slope standard developments shall not be accepted for review. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.365 Studies and reports required for modified slope standard development applications.

A. The geotechnical report for modified slope standard developments shall reference laboratory testing that will include ASTM Standard Tests sufficient to confirm the material properties used in design and the slope stability analyses. The report must provide subsurface data to support the engineer’s conclusions regarding slope stability.

B. The geotechnical engineer shall confirm that the engineering design of the planned improvements will adequately stabilize the site grades shown on the topography map, and shall verify the grades shown on the topography map based upon the geotechnical engineer’s own site observations. The geotechnical report may be specifically written for each individual lot or it may be written for a combination of multiple lots.

C. The applicant shall submit, consistent with the findings of the geotechnical report, detailed structural plans providing for stabilization and mitigation of identified slope hazards. This shall include corresponding calculations prepared and stamped by the structural engineer of record. When architectural plans incorporate such structural details, said plans shall be stamped and signed by the structural engineer of record. All other architectural plans may be prepared by an architect, designer, builder or lay person.

D. The plan set submittal shall include a statement from the geotechnical engineer who prepared the geotechnical report, stating that in his or her judgment the plans and specifications submitted for the project conform to the recommendations in the geotechnical report, and that the risk of damage to the proposed development, or to adjacent properties, from soil instability will be minimized subject to any conditions set forth in the report, and the proposed development will not increase the potential for soil movement.

E. For sites where the hazards are not mitigated or where the risks from deep-seated or large-scale earth movement cannot be practically reduced by individual lot owners, the geotechnical engineer shall prepare a statement identifying what design measures will be taken to mitigate the risk to structures, adjacent properties, and inhabitants in the event of deep-seated or large-scale movement. The statement shall specify any risks from earth movement that are not fully mitigated by design measures and include an opinion as to whether the site will be stable within the meaning of this chapter following installation of all proposed improvements. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.370 Review to determine compliance with engineering practice and best available science in modified slope standard developments.

A. The city shall require professional peer review of the plan set submittals accompanying the permit application by a civil engineer, geotechnical engineer, and/or structural engineer as may be necessary and determined by the building official or director, in order to determine whether the plan set submittals were prepared in accordance with generally accepted engineering practice or the practice of the particular engineering or design specialty and are based upon best available science. The full cost of such peer review shall be paid in full by the owner/applicant within 30 days of billing by the city. Failure to make timely payments shall result in cessation of city plan review services on the application.

B. The professional peer review requirement set forth in subsection (A) of this section may be selectively waived at the reasonable discretion of the director, provided the applicable project geotechnical engineer, civil engineer or structural engineer provides written concurrence, determination, details, facts and/or data that individual site conditions warrant an exemption from outside professional peer review. Once waived, the building official shall not be required to inquire further into the adequacy of any report, plans, or data, but rather may rely upon the submittals as warranted by the owner/applicant as reviewed by the city’s consultant. Nothing herein shall relieve the owner/applicant of the obligation to submit a complete application fulfilling all the requirements of this chapter and the IRC/IBC.

C. The final recommendation of the peer review, regarding whether a submittal complies with generally accepted practice, is based on best available science, and/or requires revisions to comply with the same, shall be binding upon the applicant and building official.

D. As provided in SMC 17.10.335(E), the applicant shall submit documentation of required bonds, frozen funds or other instrument of credit in a form satisfactory to the city attorney and sufficient to guarantee construction of the improvements proposed to address all identified hazards. The applicant shall also submit a copy of the contractor’s general liability insurance. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.375 Declarations, disclosures, covenants and waivers.

A complete application for development under provisions for modified slope standard developments shall include the following:

A. A written declaration with the permit application that includes the statement that the accuracy of all information is warranted by the owner/applicant in a form satisfactory to the city attorney and which releases and holds the city and its staff harmless from any liability associated with reliance on such submittals.

The declaration shall also state that the owner/applicant understands and accepts the risk of developing in an area with potential unstable soils and that the owner/applicant will advise in writing any prospective purchasers of the site, or any prospective purchasers or residential lessees of structures or portions of a structure on the site, of the slide potential of the area.

The owner/applicant shall also acknowledge that he, she or they understand and accept the need for future monitoring and maintenance of the property as described and called for in the final geotechnical report. While an application may reference the reports of prior public consultants to the city, all conclusions shall be those of the owner/applicant and his or her professionals.

B. Further recommendations signed and sealed by the geotechnical engineer shall be provided should there be additions or exceptions to the original recommendations based on the plans, site conditions or other supporting data. If the geotechnical engineer who reviews the plans and specifications is not the same engineer who prepared the geotechnical report, the new engineer shall, in a letter to the director accompanying the plans and specifications, express agreement or disagreement with the recommendations in the geotechnical report and state that the revised plans and specifications conform to the new recommendations.

C. A disclosure letter or notation on the design drawings by the structural engineer of record stating that he has reviewed the geotechnical report(s), that he understands its recommendations, has explained or has had explained to the owner/applicant the risk of loss due to slides on the site, and that he has incorporated into the design the recommendations of the report and established measures to reduce the potential risk of injury or damage that might be caused by any risk of earth movement referenced in the report. The statement shall note any risks, hazards, and potential problems from earth movement that are not fully mitigated by design measures.

D. The owner shall execute a covenant (in a form provided by the city and satisfactory to the city attorney) to be submitted with the application (with necessary fee as provided in the city of Sultan annual fee schedule) to be recorded with the Snohomish County auditor. The director shall cause such completed covenant to be so recorded. A copy of the recorded covenant shall be forwarded to the owner. This covenant shall be a covenant running with the land and bind the owner/applicant and his/her successors and assigns, and shall at a minimum include:

1. A legal description of the property;

2. A statement explaining that the site is in a potential earth subsidence and landslide hazard area; that the risk associated with the development of the site is set forth in permit file No. _______ with the city of Sultan building department; that conditions or prohibitions on development may have been imposed by the city in the course of permit issuance; and referencing any features in the design which will require maintenance or modification to address anticipated soil changes. The covenant shall incorporate by reference the statements and conditions to be observed in the form proposed by the owner/applicant’s geotechnical engineer, architect and/or structural engineer;

3. A statement waiving and releasing any and all claims by the owner/applicant, and promising to indemnify and hold harmless the city of Sultan, its officers, employees and city’s contractors and consultants from any claims by the owner/applicant and/or any other person or entity may have for any loss or damage to people or property either on or off the site resulting from soil movement and arising from or out of the issuances of any permit(s) authorizing development on the site, as well as due to any act or failure to act by the indemnitor and/or its agents or successors in interest under or following issuance of the permit; and

4. The date of permit issuance and permit number authorizing the development. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.380 Site bonds and contractor general liability insurance for modified slope standard developments.

A. Site Bonding Requirements.

1. A surety bond, executed by a surety company authorized to do business in the state of Washington, as provided in SMC 17.10.335(E), shall be posted by the owner/applicant or general contractor in the amount of 150 percent of the cost of required improvements as determined by the applicant’s landscape architect or engineer, and as accepted by the city engineer. This amount shall be sufficient to assure the restoration of any areas on the site, or in the surrounding area, disturbed or damaged by slides during construction, and to ensure completion of the work authorized by the permit, or, if the work is not completed, to assure that the site and surrounding area will be restored to a safe and stable condition at least equal to the safety and stability prior to commencement of work under the permit. The director will evaluate the characteristics of the site to determine if a surety bond is required and the amount of the bond. The bond will be exonerated upon occupancy approval of the building permit by the building official.

2. Structures, facilities, and activities subject to surety include, but are not limited to, the following:

a. Slope stabilization structures and landscaping/planting projects;

b. Stormwater management and drainage features;

c. Slope stability monitoring equipment and processes;

d. Road and utility fixtures; and

e. Similar features required for safe ongoing operation of the development and delivery of emergency services.

3. In lieu of the surety bond, the owner/applicant or general contractor may propose to file a cash deposit or an instrument of credit in a form satisfactory to the director in an amount equal to that which would be required in the surety bond, and similarly conditioned.

B. General Liability Insurance. The general contractor of record shall carry general liability insurance effective through issuance of the final certificate of occupancy in the minimum amount of $1,000,000, and which shall name the city as an additional insured against any related injury, death, property damage and/or loss. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.385 Site access, professional/special inspection, monitoring during construction and final geotechnical report for development and residential construction in modified slope standard developments.

A. Site Clearing and Grading.

1. The owner/applicant or contractor for any type of development, including residential construction, shall secure the director’s approval before entering a geologically hazardous site with excavating or other grading and clearing equipment to clear, remove trees or grade for any purpose, including the creation of access to the site.

2. The director may condition such access approval if warranted by site conditions and/or when discretionary approval permits are required. As part of the approval process the director may impose conditions that address site work issues; such measures could include but are not limited to limiting all excavation and drainage installation to the drier season between May and the end of September, or sequencing activities such as the installation of drainage systems well in advance of construction.

3. Requests for early site access in advance of building permit approval or in the time period between October 1st and April 30th for any purpose shall be submitted to the director accompanied by written concurrence of the owner/applicant’s geotechnical engineer of record. The geotechnical engineer shall stipulate any additional precautions necessary to maintain site stability and control erosion.

4. The director may utilize peer review consultants to determine whether the request is based on generally accepted engineering practice and is reasonable with regard to time frame to complete the work, types of equipment proposed to perform the work, length of exposure of slopes, and adequacy of site monitoring and temporary erosion control measures. When such peer review is utilized, the cost of such review shall be paid in full by the owner/applicant within 30 days of billing by the city.

B. Reporting Authority.

1. The owner/applicant shall retain a geotechnical engineer to monitor the site during construction. The owner/applicant shall preferably retain the geotechnical engineer who prepared the final geotechnical report in the plan set submittal and who has reviewed the approved plans and specifications.

2. If a different geotechnical engineering consultant is retained by the owner/applicant, the new geotechnical engineer shall submit a letter to the director stating that he or she has read all reports and recommendations and reviews to date, and state whether or not he or she agrees with the opinions and recommendations of the original geotechnical report and peer review comments.

3. Further recommendations, signed and sealed by the new geotechnical engineer, and supporting data shall be provided should there be exceptions or changes to the original recommendations that would affect the approved plans.

C. Construction Monitoring, Special Inspections.

1. During construction, the geotechnical engineer shall monitor compliance with the recommendations in the geotechnical report including: site excavation, shoring, temporary erosion control, soil support for foundation, piles, subdrainage installation, soil compaction and other geotechnical aspects of the construction.

2. The specific recommendations contained in the geotechnical report shall be implemented by the owner/applicant unless the director approves a modification that substantially complies with the recommendations in the geotechnical report.

3. The geotechnical engineer shall document any omission or deviation from the approved geotechnical report and plans in a separate report submitted to the director.

4. All reports shall be submitted directly to the city on a weekly basis for review. Failure to submit required reports shall be grounds for issuance of a stop work order.

D. Final Construction Report.

1. The geotechnical engineer of record shall prepare and submit to the director a final written report stating that, based upon his or her professional opinion, site observations and final site grading, the completed development substantially complies with the requirements of the geotechnical report and with all geotechnical-related permit requirements as shown on the approved plans. (For purposes of this subsection, “substantially complies” means that the completed development provides at least the level of stability and safety, on- and off-site, that is called for in the geotechnical requirements and reports required under SMC 17.10.365 and 17.10.370.) Recommendations to the owner/applicant shall be included in the report for future monitoring and maintenance of the property including drainage, tightlines, catch basins, berms, retaining wall drainage, hazard mitigation improvements, slopes, vegetation, and permanent erosion control that affect slope stability over time.

2. Occupancy of a residence shall not be granted until the required report(s) has been reviewed and accepted by the director. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

17.10.390 Reasonable use.

A. If the application of this chapter would deny all reasonable use of the subject property, the property owner may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include all applicable analyses, reports, and plans required by this chapter in addition to the information required in this section.

C. The director shall determine whether an exception request shall be granted based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria set forth below. The director shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the following reasonable use exception review criteria:

1. The application of this chapter would deny all economically viable use of the property;

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

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

4. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant after the effective date of this chapter or its predecessor;

5. The proposal meets the review criteria set forth in this chapter;

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

7. The proposal includes measures designed to mitigate critical area impacts to the extent reasonably feasible.

D. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 1257-17 § 1 (Exh. A); Ord. 1210-15 § 1; Ord. 1197-14 § 1)

Editor’s note: Ordinance 1159-12 added this section as SMC 17.10.210. This section was renumbered to prevent duplication of numbering.