Chapter 16D.03 APPLICATION AND REVIEW PROCEDURES

(1) No new development, construction or use shall occur within shoreline jurisdiction without obtaining a development authorization in accordance with the provisions of this title, except for those provided for in section 16D.03.05 (Minor Activities Allowed without a Permit or Exemption). Exemptions, as provided for in sections 16D.03.07 and 16D.03.08, shall be considered as development authorization, including those taking place on federal lands and requiring permits or review as provided in 16D.01.07 (Applicability of Permit System to Federal Agencies) but qualifying for other exemptions under this chapter. All proposed uses and development occurring within shoreline jurisdiction must conform to chapter 90.58 RCW, the Shoreline Management Act and this master program.

(2) With respect to application and review procedures, it is the intent of this title to streamline and coordinate the authorization of critical area projects which require other local, state and/or federal permits or authorizations. Any nonexempt development, construction or use occurring within shoreline jurisdiction shall be processed according to the provisions of this chapter and the Project Permit Administration Ordinance (YCC Title 16B).

(3) Approval of a development authorization under this title shall be in addition to, and not a substitute for, any other development permit or authorization required by Yakima County. Approval of a development authorization under this title shall not be interpreted as an approval of any other permit or authorization required of a development, construction or use.

(4) Permits issued in accordance with this title shall run with the land.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

ARTICLE II – INQUIRY AND EARLY ASSISTANCE

16D.03.02 Critical Area Identification Form and Critical Area Report Requirements.

(1) Prior to the review or consideration of any proposed development, construction or use, except those provided under Applicability (16D.01.05), and Minor Activities Allowed Without a Permit or Exemption (16D.03.05), the County shall consider available information to determine if a critical area is likely to be present. The presence of a critical area found on the paper and electronic maps within or adjacent to the property proposed for development is sufficient foundation for the administrative official to require preparation of a critical area identification form, provided by the department, and a preliminary site plan. This critical area identification form and preliminary site plan may be one piece of information used to analyze how a critical area could be affected by a development proposal. To the extent possible, all critical area features must be identified on the critical area identification form and shown on the preliminary site plan prior to the administrative official determining whether the development is subject to this title.

(2) Upon receipt of a critical area identification form and site plan, the administrative official will typically conduct a site examination to review critical area conditions on site. The administrative official shall notify the property owner of the site examination prior to the site visit. Reasonable access to the site shall be provided by the property owner for the site examination during any proposal review, restoration, emergency action, or monitoring period.

(3) The administrative official shall review available information pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal. If so, a more detailed critical area report shall be submitted in conformance with section 16D.03.17 (Critical Areas Report Requirements) and section 16D.03.18 (Supplemental Report Requirements for Specific Critical Areas), except as provided below:

(a) No critical areas present. If the administrative official is able to sufficiently determine that a critical area does not exist within or adjacent to the project area, then a critical area report is not required.

(b) Critical areas present, but no impact. If the administrative official is able to determine the existence, location and type of critical area sufficiently to indicate that the project area is not within or adjacent to the critical area and that the proposed activity is unlikely to degrade the functions or values of the critical area, then the administrative official may waive the requirement for a critical area report. A summary of the determination shall be included in any staff report or decision on the permit or review.

(c) Critical areas may be affected by proposal. If the project area is within or adjacent to a critical area or buffer the administrative official may waive the requirement for a critical areas report if:

(i) The administrative official is sufficiently able to determine the existence, location and type of the critical area;

(ii) The project is of a small scale or uncomplicated nature, such that a specialist is not needed to identify impacts and mitigation. Work within a wetland or stream channel would generally not meet this provision;

(iii) The applicant agrees to provide mitigation that the administrative official deems adequate to mitigate for anticipated impacts. Restoration of degraded areas may serve as mitigation; and

(iv) A summary of the determination shall be included in any staff report or decision on the permit or review.

(d) If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances.

(e) As guidance on the practical application of the requirement for critical areas reports, reports will generally fall into the following groups based on increasing complexity and cost of the report:

(i) Determining the absence of a critical area (sometimes resulting when initial indicators show the likely presence of a critical area);

(ii) Determining the existence, location and type of a critical area;

(iii) Determining impacts of an encroachment on a critical area and general mitigation measures;

(iv) Developing a compensatory mitigation plan for replacement or mitigation of lost wetland or stream channel area.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.03 Pre-application Conference.

Any new development, construction or use falling under the provisions of this title shall be subject to a pre-application conference, except that project review for flood hazards shall follow the pre-application requirements established to administer Chapters 16D.05.20 through 16D.05.72. The department shall schedule a pre-application conference for as soon as is reasonably possible to allow attendance by the project proponent and necessary staff. To assist in project review and discussion, prior to the pre-application conference, the project proponent must submit a preliminary site plan showing the nature and scope of the proposed project along with any existing features of the property having a relationship to the project. The pre-application conference is intended to allow the administrative official to:

(1) Establish the scope of the project, development or use and the critical area features and shoreline resources involved or potentially impacted;

(2) Consider the degree to which the project, development or use within shoreline jurisdiction may affect or impair a designated critical area or shoreline resource and identify potential concerns that may arise;

(3) Identify other permits and authorizations which the project proponent may need to obtain;

(4) Determine whether the project will be processed through the development authorization procedures of this title or coordinated through the review and approval procedures of another development permit or authorization required of the project from Yakima County;

(5) Provide the proponent with resources and technical assistance (such as maps, scientific information, other source materials, etc.) to assist the proponent in meeting the provisions of this title and any applicable rules and regulations of other agencies and jurisdictions;

(6) Determine whether there is a need for a preliminary site assessment or a technical assistance conference to better define the critical area issues and alternatives;

(7) Determine whether the project can be processed as an exemption, or if not, what type of permits or reviews may be needed. Final determination of necessary permits will be made based on the project design and submittal materials;

(8) Consider whether a preliminary site assessment may be scheduled in the field to determine the applicability of the development standards of this title to the project, based on information contained in the preliminary site plan.

(Res. 54-2010 §§ 2 (Att. B §§ 11, 12), 5 (Exh. 1 § 1), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.04 Technical Assistance Conference.

If requested by the project proponent or otherwise determined necessary, the department will arrange a meeting of representatives of those agencies and organizations with expertise, interest, or jurisdiction in the project. In conjunction with the invitation to attend the technical assistance conference, the department will provide the potential participants with a project summary compiled from the pre-application conference. The technical assistance conference may also involve a preliminary site assessment, if it is determined that resolution of issues related to the project can be achieved through an on-site review. The purpose of the technical assistance conference will be to:

(1) Confirm and define the requirements of any other applicable local, state or federal regulations;

(2) Clarify any identified procedural or regulatory conflicts and define the alternative courses of action available to the applicant in addressing project requirements;

(3) Determine whether compliance with other existing statutes and regulations will adequately address the provisions of this title;

(4) Provide the proponent with guidance, available data and information that will assist in complying with the provisions of this title and other ordinances and regulations;

(5) Provide the proponent with guidance concerning project modifications or site enhancements that would eliminate or minimize impacts to the critical area;

(6) Provide the proponent with alternatives for securing data, information, or assistance necessary to the project but not available through the pre-application conference;

(7) Determine whether a critical area report is necessary, and if so, the qualifications, skills and expertise required of a consultant to perform the special study.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

ARTICLE III – ABBREVIATED REVIEW ALTERNATIVES

16D.03.05 Minor Activities Allowed without a Permit or Exemption.

(1) The following activities are included under 16D.01.05(1) (Applicability) and are allowed without a permit or exemption:

(a) Maintenance of existing, lawfully established areas of crop vegetation, landscaping (including paths and trails) or gardens within a regulated critical area or its buffer. Examples include harvesting or changing crops, mowing lawns, weeding, harvesting and replanting of garden crops, pruning, and planting of non-invasive ornamental vegetation or indigenous native species to maintain the general condition and extent of such areas. Cutting down trees and shrubs within a buffer is not covered under this provision. Excavation, filling, and construction of new landscaping features, such as concrete work, berms and walls, are not covered in this provision and are subject to review;

(b) Minor maintenance and/or repair of lawfully established structures that do not involve additional construction, earthwork or clearing. Examples include painting, trim or facing replacement, re-roofing, etc. Construction or replacement of structural elements is not covered in this provision, but may be covered under an exemption. Cleaning canals, ditches, drains, wasteways, etc., without expanding their original configuration is not considered additional earthwork, as long as the cleared materials are placed outside the stream corridor, wetlands, and buffers;

(c) Low impact activities such as hiking, canoeing, viewing, nature study, photography, hunting, fishing, education or scientific research;

(d) Creation of unimproved private trails that do not cross streams or wetlands that are less than two (2) feet wide and do not involve placement of fill or grubbing of vegetation;

(e) Planting of native vegetation;

(f) Noxious weed control outside vegetative buffers identified in Chapter 16D.06.16, except for area wide vegetation removal/grubbing;

(g) Noxious weed control within vegetative buffers, if the criteria listed below are met.

Control methods not meeting these criteria may still apply for a restoration exemption, or other authorization as applicable:

(i) Hand removal/spraying of individual plants only;

(ii) No area wide vegetation removal/grubbing.

(Res. 54-2010 §§ 2 (Att. B § 13), 4 (Att. C § 3), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.06 Exemption – Procedural Requirements.

Certain activities and uses are exempt from some permit processes and shall instead be reviewed using the procedures below, except that flood hazard exemptions provided in 16D.05.20.060 shall follow procedures established to administer Chapters 16D.05.20 through 16D.05.72.

(1) Exemptions shall be construed narrowly and any exempted development shall be consistent with the policies and provisions of this title.

(2) Only those developments that meet the precise terms of one or more of the listed exemptions may qualify for review under these provisions.

(3) If any part of a proposed development is not eligible for exemption, then a development permit is required for the entire proposed development project.

(4) The burden of proof that a development or use is exempt from the development permit process is on the applicant.

(5) When a development or use is proposed that does not comply with the bulk, dimensional and performance standards of this title, such development must also obtain a variance (16D.03.22).

(6) All activities exempt from the requirement for a substantial development permit shall use reasonable methods to avoid impacts to critical areas within shoreline jurisdiction. To be exempt from the requirement for a substantial development permit does not give permission to degrade a critical area or Shoreline or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense, according to section 16D.06.23 (Reclamation).

(7) The proponent of an exempt activity shall submit a written request for permit exemption to the administrative official that describes the activity and states the exemption requested. The applicant shall submit to the administrative official a written description of the project that demonstrates compliance with applicable standards.

(8) The administrative official shall review the exemption request to verify that it complies with this title.

(9) The administrative official shall approve or deny the exemption.

(10) A formal letter of exemption shall be provided where an exempt activity is approved under this title. A copy of the exemption shall be kept on file by the administrative official. If an exemption cannot be granted, the administrative official shall notify the applicant in writing of the reason, at which time the applicant may pursue other permit processes under this title.

(11) Conditions may be attached to the approval of exempted developments and/or uses as necessary to assure continued consistency of the project with this title.

(12) Exempt activities are identified in the following locations. Such activities are stated as exempt from the substantial development permit or flood hazard permits. However, this provision does not exempt an activity from other permits or reviews that may be required under this title.

(a) Those activities listed in sections 16D.03.07 (Exemptions for Hydrologically Related Critical Areas, Wetlands and Shorelines) are exempt from the substantial development permit requirements for wetlands (16D.07), hydrologically related critical areas features (16D.06.03) and shorelines (16D.10);

(b) Those activities listed in section 16D.05.20.060 are exempt from the flood hazard permit requirements for flood hazard areas (16D.05).

(Res. 54-2010 §§ 2 (Att. B § 14), 4 (Att. C § 4), 5 (Exh. 1 § 2), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.07 Exemptions for Hydrologically Related Critical Areas, Wetlands and Shorelines.

The following development activities are exempt from substantial development permits that are required within Shoreline jurisdiction designated in chapter 16D.10.03 (Shoreline Jurisdiction):

(1) Construction by an owner, lessee, or contract purchaser of a single-family residence for his own use or the use of his family, which residence meets all requirements of the state agency or local government having jurisdiction thereof, other than requirements imposed pursuant to this title. “Single-family residence” means a detached dwelling designed for and occupied by one family including those structures and developments within a contiguous ownership which are a normal appurtenance. An “appurtenance” is necessarily connected to the use and enjoyment of a single-family residence and is located landward of the ordinary high water mark and the perimeter of a wetland. Normal appurtenances include a garage; deck; driveway; utilities; fences; installation of a septic tank and drainfield and grading which does not exceed two hundred fifty cubic yards and which does not involve placement of fill in any wetland or waterward of the ordinary high water mark. Construction authorized under this exemption shall be located landward of the ordinary high water mark;

(2) Construction of the normal protective bulkhead common to single-family residences. A “normal protective” bulkhead includes those structural and nonstructural developments installed at or near, and parallel to, the ordinary high water mark for the sole purpose of protecting an existing single-family residence and appurtenant structures from loss or damage by erosion. A normal protective bulkhead is not exempt if constructed for the purpose of creating dry land. When a vertical or near vertical wall is being constructed or reconstructed, not more than one cubic yard of fill per one foot of wall may be used as backfill. When an existing bulkhead is being repaired by construction of a vertical wall fronting the existing wall, it shall be constructed no further waterward of the existing bulkhead than is necessary for construction of new footings. When a bulkhead has deteriorated such that an ordinary high water mark has been established by the presence and action of water landward of the bulkhead then the replacement bulkhead must be located at or near the actual ordinary high water mark. Bioengineered erosion control projects may be considered a normal protective bulkhead when any structural elements are consistent with the above requirements and when the project has been approved by the department of fish and wildlife;

(3) Development and construction for which the total cost or fair market value, whichever is higher, does not exceed five thousand dollars (adjusted for inflation as determined by the Washington Office of Financial Management using methods provided in RCW 90.58.030(3)(e) and WAC

173-27-040(2)(a)); provided such development and construction does not involve excavation, fill, or other work which is not consistent with the functional properties of stream corridors and other hydrologically related critical areas as set forth in Section 16D.06.05 of this title; and provided, that any such development and construction within shoreline jurisdiction does not materially interfere with the public use of the water or shorelines of the state. The total cost or fair market value of the development shall include the fair market value of any donated, contributed or found labor, equipment or materials;

(4) Construction or practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities, construction of a barn or similar agricultural structure, and the construction and maintenance of irrigation structures including but not limited to head gates, pumping facilities, and irrigation channels; provided, that a feedlot of any size, all processing plants, other activities of a commercial nature, and/or alteration of the contour of the land by leveling or filling other than that which results from normal cultivation, shall not be considered normal or necessary farming or ranching activities. A “feedlot” shall be an enclosure or facility used or capable of being used for feeding livestock hay, grain, silage, or other livestock feed, but shall not include land for growing crops or vegetation for livestock feeding and/or grazing, nor shall it include normal livestock wintering operations;

(5) Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements. “Normal maintenance” includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. “Normal repair” means to restore a development to a state comparable to its original condition, including but not limited to its size, shape, configuration, location and external appearance, within a reasonable period after decay or partial destruction, except where repair involves total replacement which is not common practice or causes substantial adverse effects to the shoreline resource or environment. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including but not limited to its size, shape, configuration, location and external appearance, and the replacement does not cause additional substantial adverse effects to shoreline resources or environment. The need for replacement resulting from a neglect of maintenance and repair is not considered a common method of repair. Replacement of nonconforming uses or facilities may also be subject to section 16D.03.26 (Nonconforming Uses and Facilities);

(6) Emergency construction necessary to protect property from damage by the elements. An “emergency” is an unanticipated and imminent threat, which requires immediate action or response within a time period too brief to allow full compliance with this title. The following criteria must exist to qualify any action under an emergency provision:

(a) There must be an immediate threat to life, public or private property, or an immediate threat of serious environmental degradation arising from a natural condition or technical incident;

(b) The emergency response must be confined to the action necessary to protect life or property from damage;

(d) The emergency response applies only to the period of time in which the actual emergency exists;

(e) The request must be accompanied by a paid permit application or a request for a non-emergency exemption. Submittal requirements beyond normal exemption submittal requirements are waived until after the emergency is deemed abated.

As soon as the emergency is deemed abated by appropriate authorities, compliance with the requirements of this title is required, and may include removal of the emergency construction if nonstructural construction measures can adequately deal with site issues;

(7) Construction of a dock, including a community dock, designed for pleasure craft only, for the private noncommercial use of the owners, lessee or contract purchaser of a single-family and multiple-family residence. A dock is a landing and moorage facility for watercraft and does not include recreational decks, storage facilities or other appurtenances. This exception applies if the fair market value of the dock does not exceed ten thousand dollars, but if subsequent construction having a fair market value exceeding two thousand five hundred dollars occurs within five years of completion of the prior construction, the subsequent construction shall be subject to a substantial development permit;

(8) The operation, maintenance or construction of canals, waterways, drains, reservoirs, or other manmade facilities that now exist or are hereinafter created or developed as a part of an irrigation system for the primary purpose of making use of system waters, including return flow and artificially stored ground water from the irrigation of lands;

(9) Operation and maintenance of any system of dikes, ditches, drains, or other facilities existing on September 8, 1975, effective date for this Shoreline Master Program, for land within shoreline jurisdiction, which were created, developed, or utilized primarily as a part of an agricultural drainage and diking system;

(10) Construction or modification, by or under the authority of the Coast Guard or a designated port management authority, of navigational aids such as channel markers and anchor buoys;

(11) Any project with a certification from the governor pursuant to chapter 80.50 RCW (Energy facilities – site locations);

(12) Watershed restoration project that are authorized by the sponsor of a watershed restoration plan and that implement the plan or a part of the plan, and meet the requirements of WAC 173-27-040(6), as amended;

(13) Site exploration and investigation activities that are prerequisite to preparation of an application for development authorization under this chapter, if:

(a) The activity does not interfere with the normal public use of surface waters within shoreline jurisdiction;

(b) The activity will have no significant adverse impact on the environment including but not limited to fish, wildlife, fish or wildlife habitat, water quality, and aesthetic values;

(c) The activity does not involve the installation of any structure, and upon completion of the activity the vegetation and land configuration of the site are restored to conditions existing before the activity;

(d) A private entity seeking development authorization within shoreline jurisdiction must first post a performance bond or provide other evidence of financial responsibility to the local jurisdiction to ensure that the site is restored to preexisting conditions;

(14) The process of removing or controlling aquatic noxious weeds, as defined in RCW 17.26.020 (control of spartina and purple loosestrife), through the use of an herbicide or other treatment methods applicable to weed control that are recommended by a final environmental impact statement published by the Department of Agriculture or the Department of Ecology jointly with other state agencies under chapter 43.21C RCW (SEPA);

(15) A public or private project, the primary purpose of which is to improve fish or wildlife habitat or fish passage, that meets the requirements of WAC 173-27-040(p) as amended.

(a) The project has been approved in writing by the Department of Fish and Wildlife as necessary for the improvement of the habitat or passage and appropriately designed and sited to accomplish the intended purpose;

(b) The project has received hydraulic project approval, when required, by the department of fish and wildlife pursuant to chapter 75.20 RCW (Hydraulics Code);

(d) Fish habitat enhancement projects that conform to the provisions of RCW 77.55.181 (Fish Habitat Enhancement Projects) are deemed to be consistent with this title;

(16) Hazardous substance remedial actions, for which a consent decree, order or agreed order has been issued pursuant to chapter 70.105D RCW (Model Toxics Control Act) or when the Department of Ecology conducts a remedial action under chapter 70.105D RCW (Model Toxics Control Act). The Department of Ecology shall assure that such projects comply with the substantive requirements of chapter 90.58 RCW (SMA), chapter 173-26 WAC (SMA Guidelines) and the Shoreline Master Program, when applicable;

(17) The removal of trees that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property from critical areas and buffers; provided, that:

(a) A dead tree within a buffer may be shortened to the point that the tree will not strike a structure or defined vehicle parking area. The remainder shall be maintained to provide wildlife habitat, nesting locations and perch sites. A remainder less than ten (10) feet tall may be removed completely;

(b) A diseased or damaged tree may be removed as determined by the administrative official;

(c) The removed portion of trees should be placed within the vegetative buffer area as wildlife habitat, unless it will interfere with a maintained vegetation area identified in section 16D.03.05(1)(a) (Minor Activities Allowed without a Permit or Exemption), or as determined otherwise by the administrative official. Portions of trees to be removed from the buffer area should be felled to the outer edge of a vegetative buffer and dragged out. Heavy equipment is not allowed within the buffer, except within areas identified in 16D.03.05(1)(a) (Minor Activities Allowed without a Permit or Exemption). Damaged riparian vegetation must be repaired;

(d) Each tree that is felled or topped shall be replaced in a manner acceptable to the administrative official.

(Res. 54-2010 § 2 (Att. B § 15), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.08 Exemptions for Geologically Hazardous Areas.

The following development activities are exempt from substantial development permits that are required for geologically hazardous areas designated in chapter 16D.08:

(1) Additions to or alteration of existing single-family residences;

(2) Uses and surface disturbances (clearing and grubbing) that do not include excavation, fill or irrigation;

(3) Structures less than 200 square feet that are not used as a place of employment or residence (fences, sheds, gazebos, etc.);

(4) Oil, gas, wind or other exploration that does not include explosions, roads, excavation or fill.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.10 Mitigation Requirements.

(1) All developments shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following order of preference:

(a) Avoiding the impact altogether by not taking a certain action or parts of an action;

(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(e) Compensating for the impact by replacing, enhancing, or providing substitute resources or environments;

(f) Monitoring the impact and taking appropriate corrective measures.

(2) Mitigation for individual actions may include a combination of the above measures.

(3) Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved mitigation plan. Mitigation shall not be implemented until after approval of the mitigation plan.

(4) Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area. When necessary, mitigation may be provided that is out-of-kind and/or off-site.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

ARTICLE IV – REVIEW PROCESS

16D.03.11 Application Submittal.

(1) Application for a development authorization under this title shall be made on forms provided by the department. The application submittal shall include a site plan drawn to scale showing:

(a) The actual shape and dimensions of the property site to be used;

(b) Existing and proposed structures;

(d) Such other information as is needed to determine the nature and scope of the proposed development, including the maximum extent of the project site with respect to construction, excavation, equipment and material storage, and other project related work.

(2) The site plan should also show the location of all critical areas, such as those identified in sections 16D.03.02 (Critical Area Identification Form and Critical Areas Report Requirements) and 16D.03.17 (Critical Areas Report Requirements), include all required critical areas reports prepared in conformance with 16D.03.17, and include the permit information required either in YCC Title 16B (Project Permit Administration) or in chapter 16D.05.44 (Flood Hazard Protection Administration), as appropriate.

(3) To be accepted as complete, a critical area development authorization application must include all maps, drawings and other information or data specified by this title or requested on the basis of the pre-application conference (16D.03.03), or technical assistance conference (16D.03.04).

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.12 Determination of Review Process.

(1) The administrative official shall determine from the application submittal, and other available information, what type of permit or review is required under this title. The administrative official shall make such determination as early in the application process as is possible and shall inform the project applicant in writing of any application needs. Available information used in this determination may include:

(a) Critical areas identification form;

(b) Pre-application conference information;

(2) Specific information on when a permit or review is required, its review process type and review criteria are found in the section for each permit or review. However, a brief description of each type of permit or review is provided in Table 3-1 below. Some permits or reviews are general and all projects will have a general review. Some permits are more specialized and apply only in specific cases or situations. More than one (1) permit or review may be needed for a project.

Table 3-1
General Permits or Reviews
Substantial Development. Shoreline Substantial development projects include any development subject to RCW Chapter 90.58, the Shoreline Management Act.
Exemptions. Exemptions are generally minor activities that do not need to go through the permit process.
Specific Permits
Conditional Use Permit. Shoreline Conditional Uses are those uses within Shoreline jurisdiction that are identified in Table 16D.10.05 as conditional uses, and that are usually seen as uses that either do not need a Shoreline location, are considered not to be suitable for siting in shoreline locations, or have impacts that need closer scrutiny.
Variance. A Shoreline Variance may be used within Shoreline jurisdiction to grant relief from specific performance standards where there are extraordinary circumstances that will impose unnecessary hardships.
Nonconforming Use or Facility Alteration. Nonconforming Use or Facility Alterations are necessary when an existing legal use that currently does not conform to this title is to be altered.
Minor Revisions to an Existing Permit. Minor Revisions to an Existing Permit allow simplified review of certain changes to a project that has previously received a permit.
Flood Hazard Permit. A Flood Hazard Permit is required for activities within floodplains. It is different in that it has special administrative provisions, and may include many of the specific permit types noted above within it, which are described in chapters 16D.05.20 through 16D.05.72. It is focused mainly on construction methods, but may include site design to minimize impacts to adjacent properties or resources, or to locate the proposed development in areas where depth and velocity of floodwaters during the base flood do not exceed the current standards for construction of human occupied structures or safe access.

(Res. 54-2010 § 2 (Att. B § 16), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.13 Development Authorization – Review Procedure.

Upon submittal and acceptance of a completed development authorization application, the administrative official shall process and review the application as follows, except that permits or reviews required for critical areas under Chapters 16D.05.20 through 16D.05.72 shall be processed using the permit development standards, approval criteria and other provisions established in Chapters 16D.05.20 through 16D.05.72.

(1) Development authorizations shall be processed consistent with review procedures provided in YCC Title 16B (Project Permit Administration), and with any specific processes requirements provided in 16D.03.19 through 16D.03.26 (specific permit descriptions), including but not limited to:

(a) Submittals;

(b) Completeness review;

(d) Hearings;

(e) Decisions; and

(f) Appeals.

(2) Development authorizations shall be reviewed for conformance with the applicable development standards provided in 16D.03.27 (General Critical Areas Protection Measures), and in chapters 16D.06 through 16D.10; except, that:

(a) Forest practices under a state or federal approval lying within shoreline jurisdiction, which meet the standards of 16D.06.24(1) (Forest Practices), shall be deemed to be meeting acceptable critical areas protection measures and are only subject to the development standards of 16D.10 (Shorelines), when applicable;

(b) For rangeland livestock grazing operations, both inside and outside shoreline jurisdiction, the administrative official may waive compliance with development standards in Chapter 16D.06 (Fish and Wildlife Habitat and the Stream Corridor System), 16D.07 (Wetlands), 16D.08 (Geologically Hazardous Areas), and 16D.09 (CARA), but not for Chapter 16D.10 (Shorelines) or those uses and activities listed in section 16D.06.10 (Prohibited Uses). To qualify for this provision, a resource management plan must be provided that has been prepared using all applicable U.S. Department of Agriculture – National Resource Conservation Service best management practices designed to protect streams, wetlands, vegetative buffers, erosion hazards, and floodplains from grazing operations. An acceptable resource management plan is deemed to consist of acceptable critical areas protection measures capable of dealing with impacts of grazing activities dispersed across large areas. This provision is not intended to apply to pasture grazing, hobby farms, or confinement feeding operations.

(3) Decisions on a development authorization shall be consistent with section 16D.03.14 (Authorization Decisions – Basis for Action), 16D.03.15 (Conditional Approval of Development Authorization) and with any specific decision criteria provided under the sections for each relevant permit type, as provided in 16D.03.19 through 16D.03.26 (specific permit descriptions).

(4) In addition to the review procedures of YCC Title 16B, the following additional procedures shall apply to development authorizations within shoreline jurisdiction:

(a) The public comment period for shoreline permits shall conform to WAC 173-27-110 (30 days), except that the public comment period for limited utility extensions and shoreline stabilization measures for bulkheads to protect a single-family residence and its appurtenant structures shall conform to WAC 173-27-120 (20 days);

(b) For limited utility extensions and bulkheads for a single-family residence, the time for the County to issue a decision shall conform to WAC 173-27-120 (21 days from the last day of the comment period);

(c) The effective date of a shoreline permit shall conform to WAC 173-27-090 (the later of the permit date or the date of final action on subsequent appeals of the shoreline permit, unless the applicant notifies the Department of delays in other necessary construction permits);

(d) The expiration dates for a shoreline permit regarding start of construction and completion, and the extension of deadlines for those dates, shall conform with WAC 173-27-090 (start construction within 2 years, complete construction within 5 years, 1 year extensions of those dates, and allowance for the administrative official to set alternative permit expiration dates with a showing of good cause);

(e) For limited utility extensions and bulkheads for single-family residences, the time for the County to complete any local appeal shall conform to WAC 173-27-120 (30 days);

(f) The Department shall send its decision and the application materials to the Department of Ecology after the local decision and any local appeal procedures have been completed in conformance with WAC 173-27-130;

(g) For substantial development permits, the Department of Ecology will file the permit without additional action according to WAC 173-27-130;

(h) For conditional use and variance permits, the Department of Ecology will follow WAC 173-27-130 and WAC 173-27-200 (issue a decision within 30 days of the date of filing);

(i) The appeal period of a Department of Ecology action to the Shoreline Hearings Board will follow WAC 173-27-190 (21 days from the date of filing for a substantial development permit, or issuing a decision on a conditional use or variance permit);

(j) The Shorelines Hearings Board will follow the rules governing that body (RCW 90.58).

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.14 Authorization Decisions – Basis for Action.

The action on any development authorization under this title shall be based upon the following criteria:

(1) Danger to life and property that would likely occur as a result of the project;

(2) Compatibility of the project with the critical area features on, adjacent to, or near the property; Shoreline values and ecological functions; and public access and navigation;

(3) Conformance with the applicable development standards in this title;

(4) Requirements of other applicable local, state or federal permits or authorizations, including compliance with flood hazard mitigation requirements of Chapters 16D.05.20 through 16D.05.72;

(5) Adequacy of the information provided by the applicant or available to the department;

(6) Ability of the project to satisfy the purpose and intent of this title;

(7) Based upon the project evaluation, the decision maker shall take one of the following actions:

(a) Grant the development authorization;

(b) Grant the development authorization with conditions, as provided in 16D.03.15 (Conditional Approval of Development Authorization), to mitigate impacts to the critical area feature(s) present on or adjacent to the project site;

(8) The decision by the administrative official on the development authorization shall include written findings and conclusions stating the reasons upon which the decision is based.

(Res. 54-2010 § 2 (Att. B § 17), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.15 Conditional Approval of Development Authorization.

In granting any development authorization, the decision maker may impose conditions to:

(1) Accomplish the purpose and intent of this title;

(2) Eliminate or mitigate any identified specific or general negative impacts of the project on the critical area, and on shoreline ecological functions;

(3) Restore important resource features that have been degraded or lost because of past or present activities on the project site;

(4) Protect designated critical areas and shoreline jurisdiction, from damaging and incompatible development;

(5) Ensure compliance with specific development standards in this title.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.16 Fees and Charges.

The board of county commissioners establishes the schedule of fees and charges listed in Yakima County Code, Title 20 (Yakima County Fee Schedule), for development authorizations, variances, appeals and other matters pertaining to this title.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

ARTICLE V – CRITICAL AREAS REPORTS

16D.03.17 Critical Areas Report Requirements.

(1) The administrative official may require a critical areas report, paid for by the applicant in accordance with YCC Title 16B.04, where determined necessary through the critical area identification form, technical assistance conference, site investigation, or other portion of the project review.

(2) A qualified professional, as defined by this title, shall prepare the report utilizing best available science. The intent of these provisions is to require a reasonable level of technical study and analysis sufficient to protect critical areas. The analysis shall be commensurate with the value or sensitivity of a particular critical area and relative to the scale and potential impacts of the proposed activity.

(3) The critical area report shall:

(a) Demonstrate that the submitted proposal is consistent with the purposes and specific standards of this title;

(b) Describe all relevant aspects of the development proposal; all critical areas adversely affected by the proposal including any geologic or flood hazards; all risks to critical areas, the site, and other public and private properties and facilities resulting from the proposal; and assess impacts on the critical area from activities and uses proposed; and

(4) The critical areas report shall include information to address the supplemental report requirements for specific critical areas (16D.03.18).

(5) The administrative official shall review the critical areas report for completeness and accuracy, and shall consider the recommendations and conclusions of the critical areas report to assist in making decisions on development authorizations and to resolve issues concerning critical areas jurisdiction, appropriate mitigation, and protective measures.

(6) Critical areas reports shall generally be valid for a period of five (5) years, unless it can be demonstrated to the satisfaction of the administrative official that the previously prepared report is adequate for current analysis. Future land use applications may require preparation of new, amended, or supplemental critical area assessment reports. Reports prepared for nearby lands may be deemed acceptable by the administrative official, in whole or in part, if relevant to the current analysis and meeting the above standards. The administrative official may also require the preparation of a new critical area assessment report or a supplemental report when new information is found demonstrating that the initial assessment is in error. If the administrative official requires more information in the report, he/she shall make the request in writing to the applicant stating what additional information is needed and why.

(7) The administrative official may reject or request revision of the critical areas report when the administrative official can demonstrate that the assessment is incomplete, or does not fully address the critical areas impacts involved.

(8) To avoid duplication, the reporting requirements of this chapter shall be coordinated if more than one critical area report is required for a site or development proposal.

(9) Applicants should provide reports and maps to the County in an electronic format that allows site data to be incorporated into the County critical areas database; provided, that the County may waive this requirement for single-family developments. Applicants are encouraged to coordinate with the administrative official regarding electronic submittal guidelines. This requirement shall not be construed as a requirement to use specific computer software.

(10) At a minimum, a critical areas report shall include the following information:

(a) A site plan showing the proposed development footprint and clearing limits, and all relevant critical areas and buffers within and abutting the site, including but not limited to effects related to clearing, grading, noise, light/glare, modification of surface or subsurface flow, drilling, damming, draining, creating impervious surface, managing stormwater, releasing hazardous materials, and other alterations. Projects in frequently flooded areas must comply with the requirements of section 16D.05.20 through 16D.05.72. For projects on or adjacent to geologically hazardous areas or areas subject to high floodwater depth or velocity the report shall identify the type of hazard and assess the associated risks posed by the development to critical areas, the site, and other public and private properties and facilities that are the result from the proposal, and assess costs on the critical area from activities and uses proposed;

(b) A written description of the critical areas and buffers on or abutting the site, including their size, type, classification or rating, condition, disturbance history, and functions and values. For projects on or adjacent to geologically hazardous areas or areas subject to high floodwater depth or velocity the description shall identify the type and characteristics of the hazard;

(c) An analysis of potential adverse critical area impacts associated with the proposed activity. For geologically hazard areas, also assess the risks posed by the development to critical areas, the site, and other public and private properties and facilities that are the result from the proposal, and assess impacts on the critical area from activities and uses proposed;

(d) An explanation of how critical area impacts or risks will be avoided and/or minimized, how proposed mitigation measures will prevent or minimize hazards, why the proposed activity requires a location on or access across a critical area, the on-site design alternatives, and why alternatives are not feasible;

(e) When impacts cannot be avoided, the report shall include a plan describing mitigation to replace critical area functions and values altered as a result of the proposal, or to reduce flood or geologic hazards to critical areas, the site, and other public and private properties. For projects on or adjacent to geologically hazardous areas or areas subject to high floodwater depth or velocity the plan shall address mitigation for impacts to critical areas, the site, and other public and private properties and facilities that are the result from the proposal, and assess impacts on the critical area from activities and uses proposed;

(f) The dates, names, and qualifications of the persons preparing the report and documentation of analysis methods including any fieldwork performed on the site; and

(g) Additional reasonable information requested by the administrative official for the assessment of critical areas impacts or otherwise required by the subsequent articles of this title.

(11) A critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the administrative official.

(12) The administrative official may limit the required geographic area of the critical area report as appropriate.

(13) Compensatory Mitigation Plans. When compensatory mitigation, as described in section 16D.03.10 (Mitigation Requirements), is required or proposed for wetland areas or stream channels, the applicant shall submit for approval by Yakima County a mitigation plan as part of the critical area report, which includes:

(a) Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the proposed compensation including:

(i) A description of the anticipated impacts to the critical areas, mitigating actions proposed, and the purposes of the compensation measures, including the site selection criteria, identification of compensation goals and objectives, identification of desired resource functions, dates for beginning and completion of site compensation construction activities, and an analysis of the likelihood of success of the compensation project. The goals and objectives shall be related to the functions and values of the impacted critical area;

(b) A review of the best available science supporting the proposed mitigation;

(d) Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained;

(e) Detailed Construction Documents. The mitigation documents shall include written specifications and plans describing the mitigation proposed, such as:

(i) The proposed construction sequence, timing, and duration;

(ii) Grading and excavation details;

(iii) Erosion and sediment control features;

(iv) A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

(v) Measures to protect and maintain plants until established; and

(vi) Documents should include scale drawings showing necessary information to convey both existing and proposed topographic data, slope, elevations, plants and project limits;

(f) Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years 1,

3, 5, and 7 after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five (5) years;

(g) Contingency Plan. The mitigation plan shall include identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met;

(h) Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with section 16D.03.27(1) (Financial Guarantees).

(14) Innovative Mitigation.

(a) Yakima County encourages innovative mitigation projects that are based on the best available science. The mitigation plan shall be used to satisfy the requirements of this chapter and provide relief and/or deviation as appropriate from the specific standards and requirements thereof. Advance mitigation or mitigation banking are examples of alternative mitigation projects allowed under the provisions of this Section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

(i) Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

(ii) The group demonstrates the organizational and fiscal capability to act cooperatively;

(iii) The group demonstrates that long-term management of the habitat area will be provided;

(iv) There is a clear potential for success of the proposed mitigation at the identified mitigation site;

(v) There is a clear likelihood for success of the proposed plan based on supporting scientific information and demonstrated experience in implementing similar plans;

(vi) The proposed project results in equal or greater protection and conservation of critical areas than would be achieved using parcel-by-parcel regulations and/or traditional mitigation approaches;

(vii) The plan is consistent with the general purpose and intent of this chapter;

(viii) The plan shall contain relevant management strategies considered effective and within the scope of this chapter and shall document when, where, and how such strategies substitute for compliance with the specific standards herein; and

(ix) The plan shall contain clear and measurable standards for achieving compliance with the purposes of this chapter, a description of how such standards will be monitored and measured over the life of the plan, and a fully funded contingency plan if any element of the plan does not meet standards for compliance.

(b) Conducting mitigation as part of a cooperative process does not reduce or eliminate the required wetland replacement ratios.

(c) Projects that propose compensatory wetland mitigation shall also use the standards in sections 16D.07.05 (Compensatory Mitigation Requirements). For those situations where a mitigation bank may provide an opportunity for mitigation, then the requirements in section 16D.07.06 (Wetland Mitigation Banks) shall apply.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.18 Supplemental Report Requirements for Specific Critical Areas.

(1) Stream Corridors. When a critical areas report is required for a stream corridor or hydrologically related critical area, it shall include the following:

(a) A habitat and native vegetation conservation strategy that addresses methods to protect and enhance the functional properties listed in section 16D.06.05 (Functional Properties);

(b) Where there is evidence that proposed construction lies within an immediate zone of potential channel migration, representing a future hazard to the construction, a hydrologic analysis report may be required. The report shall assume the conditions of the one-hundred-year flood, include on-site investigative findings, and consider historical meander characteristics in addition to other pertinent facts and data.

(2) Upland Wildlife. When a critical areas report is required for Upland Wildlife Habitat Conservation Areas, it shall include the following:

(a) Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the presence or absence of such species, and areas with which such species have a primary association. The presence or absence assessment shall incorporate the time sensitive nature of species use. The landowner may submit an assessment prepared by the state or federal agency with jurisdiction over the species. This assessment is time sensitive and the assessment must be completed no more than 36 months prior to the date the critical areas application is deemed complete.

(b) If the habitat assessment determines that such habitat area is present on site, a management plan is required that follows published federal, or state, management recommendations. The administrative official shall confer with the appropriate agency and consider their comments through the review process.

(3) Wetlands. When a critical areas report is required for wetlands, it shall include the following:

(a) The exact location of a wetland’s boundary and wetland rating shall be determined through the performance of a field investigation by a qualified wetland professional applying the Washington State Wetlands Identification and Delineation Manual (Ecology Publication No. 96-94, http://www.ecy.wa.gov/pubs/9694.pdf) as required by RCW 36.70A.175 (Wetlands to be delineated in accordance with manual), and the Washington State Wetland Rating System for Eastern Washington (Ecology Publication No. 04-06-15), as amended;

(b) All delineated wetlands and required buffers within two hundred (200) feet of the project area shall be depicted on the site plan. For areas off-site of the project site, wetland conditions within 200 feet of the project boundaries may be estimated using the best available information. Best available information should include, but not be limited to, aerial photos, land based photos, soils maps, or topographic maps;

(c) A critical area report for wetlands shall contain an analysis of the wetlands including the following site- and proposal-related information:

(i) A statement specifying all assumptions made and relied upon;

(ii) Documentation of any fieldwork performed on the site, including field data sheets for delineations, the wetland rating form, baseline hydrologic data, etc.;

(iii) A description of the methodologies used to conduct the wetland delineations, or impact analyses including references;

(iv) Wetland category, including vegetative, faunal, and hydrologic characteristics;

(d) For projects that will affect the wetland or its buffer, provide the following:

(i) A habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and wetland functions and values listed in section 16D.07.04(1) (Wetland Functions and Rating), and section 16D.06.05 (Functional Properties);

(ii) Mitigation sequencing pursuant to section 16D.03.10 (Mitigation Requirements) to avoid, minimize, and mitigate impacts. Mitigation shall result in no net loss of wetland functions and values. Mitigation ratios may be necessary and should follow the guidance provided in section 16D.07.05 (Compensatory Mitigation Requirements) of the wetland chapter;

(e) For category II and III wetlands with wetland rating habitat scores over 20 points, a wildlife habitat survey report and a habitat protection plan specific to wildlife using the wetland shall be submitted by a qualified professional. If a contiguous 100-foot wide protected habitat corridor exists between the existing wetland buffer complex and another adjacent wetland habitat found in the survey, this provision may be waived;

(f) Wetland buffers set forth in Table 6-1 shall only be minimized through application of the shoreline variance permit process and its provisions and criteria.

(4) Geologically Hazardous Areas. When a critical areas report is required for a geologically hazardous area, it shall include the following; provided, that the administrative official may determine that any portion of these requirements is unnecessary given the scope and/or scale of the proposed development:

(a) A description of the site features, including surface and subsurface geology. This may include surface exploration data such as borings, drill holes, test pits, wells, geologic reports, and other relevant reports or site investigations that may be useful in making conclusions or recommendations about the site under investigation;

(b) A description of the geologic processes and hazards affecting the property, including a determination of the actual hazard types for any suspected and risk unknown hazards identified in the affirmative determination of hazard (16D.08.04);

(d) A description of any potential hazards that could be created or exacerbated as a result of site development;

(e) For developments in or affecting landslide hazard areas the report shall also include:

(i) Assessments and conclusions regarding slope stability including the potential types of landslide failure mechanisms (e.g., debris flow, rotational slump, translational slip, etc.) that may affect the site. The stability evaluation shall also consider dynamic earthquake loading, and shall use a minimum horizontal acceleration as established by the current version of YCC Title 13 (Building Code);

(ii) An analysis of slope recession rate shall be presented in those cases where stability is impacted or influenced by stream meandering, or other forces acting on the toe of the slope;

(iii) Description of the run-out hazard of landslide debris to the proposed development that starts up-slope (whether part of the subject property or on a neighboring property) and/or the impacts of landslide run-out on down-slope properties and critical areas.

(5) Flood Hazards.

(a) Prior to authorization of any major construction project within a floodplain which can be anticipated to displace floodwaters or alter the depth or velocity of floodwaters during the base flood, an engineering report shall be prepared that establishes any new flood elevations that would result for the one-hundred-year flood frequency if the project were implemented.

(6) Geotechnical Analysis for Flood Hazard Reduction and Shore Modification within Shoreline Jurisdiction.

(a) When a geotechnical report or geotechnical analysis is required within shoreline jurisdiction, it shall include:

(i) A description of the ground and surface hydrology and geology, the affected land form and its susceptibility to mass wasting, erosion, and other geologic hazards or processes;

(ii) Conclusions and recommendations regarding the effect of the proposed development on geologic conditions, the adequacy of the site to be developed, the impacts of the proposed development, alternative approaches to the proposed development; and

(iii) Measures to mitigate potential site-specific and cumulative geological and hydrological impacts of the proposed development, including the potential adverse impacts to adjacent and down-current properties.

(b) A geotechnical analysis for structural stabilization measures must demonstrate the necessity for shore stabilization by estimating time frames and rates of erosion and report on the urgency associated with the specific situation. As a general matter, hard armoring solutions should not be authorized except when a report confirms that there is a significant possibility that such a structure will be damaged within three years as a result of shore erosion without such hard armoring measures, or where waiting until the need is that immediate would foreclose the opportunity to use measures that avoid impacts on ecological functions. Thus, where the geotechnical report confirms a need to prevent potential damage to a primary structure, but the need is not as immediate as three years, the report may still be used to justify more immediate authorization to protect against erosion using soft measures.

(c) A geotechnical analysis for structural flood hazard reduction measures must also demonstrate, by a scientific and engineering analysis, feasible alternatives to structural improvements that:

(i) Such measures are necessary to protect existing development;

(ii) That nonstructural measures are not feasible;

(iii) That impacts to ecological functions and priority species and habitats can be successfully mitigated so as to assure no net loss; and

(iv) That appropriate vegetation conservation actions are undertaken consistent with WAC 173-26-221(5) (General master program provisions – Shoreline vegetation conservation).

(Res. 54-2010 §§ 2 (Att. B § 18), 4 (Att. C § 5), 5 (Exh. 1 § 3), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

ARTICLE VI – PERMIT REVIEW CRITERIA

16D.03.19 Substantial Development Permit.

(1) Classification Criteria. Substantial development permits include any development subject to RCW Chapter 90.58 (Shoreline Management Act).

(2) Process. Substantial development permits shall be processed as a Type II review in accordance with YCC Title 16B (Project Permit Administration).

(3) Decision Criteria. Decisions on substantial development permits shall be based on the general decision criteria found in section 16D.03.14 (Authorization Decisions – Basis for Action).

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.21 Shoreline Conditional Uses.

(1) Classification Criteria. Shoreline Conditional Uses are those uses within Shoreline jurisdiction that are identified in section 16D.10.05 (Shoreline Land Use table) as Conditional Uses, and that are usually seen as uses that either do not need a shoreline location, are considered not to be suitable for siting in shoreline locations, or have impacts that need closer scrutiny. Unclassified Conditional projects, uses and developments which may be proposed in the future, but were not considered during development of the SMP. It is understood, however, that there may be special circumstances or a special type or style of conditional use that would make shoreline siting of special cases acceptable to the goals, policies and intentions of the master program. The purpose of a conditional use permit is to provide a system which allows flexibility in the application of use regulations in a manner consistent with the policies of RCW 90.58.020 (Legislative findings). In authorizing a conditional use, special conditions may be attached to the permit by Yakima County or the Department of Ecology to prevent undesirable effects of the proposed use and/or to assure consistency of the project with the act and the master program.

(2) Process. All applications for a conditional use shall be processed as a Type II review in accordance with YCC Title 16B (Project Permit Administration).

(3) Decision Criteria. The decision on a conditional use shall be based upon the criteria established in Section 16D.03.14 (Authorization Decisions – Basis for Action) together with the criteria established below. The burden of proving that the project is consistent with the applicable criteria shall be upon the applicant, who must supply evidence or information demonstrating to the satisfaction of the administrative official that all of the following criteria will be met:

(a) Failure to satisfy any one of the criteria below shall result in denial of the conditional use.

(i) That the proposed use will be consistent with the policies of RCW 90.58.020 (Legislative findings).

(ii) That the proposed use will not interfere with the normal public use of public shorelines.

(iii) That the proposed use of the site and design of the project will be compatible with other permitted uses within the area.

(iv) That the proposed use will cause no significant adverse effects to the shoreline environment designation in which it is located.

(v) That the public interest suffers no substantial detrimental effect.

(b) Consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar circumstances exist, the total of the conditional uses shall also remain consistent with the policies of RCW 90.58.020 (Legislative findings) and shall not produce substantial adverse effects to the shoreline environment.

(Res. 54-2010 § 2 (Att. B § 19), 2010; Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.22 Variance.

(1) Classification Criteria. A variance may be used within shoreline jurisdiction to grant relief from specific bulk, dimensional or performance standards where there are extraordinary circumstances relating to the physical character or configuration of property such that the strict implementation of the standards will impose unnecessary hardships on the applicant or thwart the policies set forth in RCW 90.58.020 (Legislative findings). Shoreline variances from the use regulations of the master program are prohibited.

(2) Process. Requests for a variance permit shall be processed as a Type II review in accordance with YCC Title 16B (Project Permit Administration). Each request for a Variance shall be considered separately and prior to any decision on an application for development authorization. Any decision to approve or conditionally approve the development authorization will include and specifically cite only those variances approved for inclusion with the project.

(3) Decision Criteria. The decision on a Variance shall be based upon the criteria established in Section 16D.03.14 (Authorization Decisions – Basis for Action) together with the criteria established below. Variance requests shall cite the specific standard or condition from which relief is requested and be accompanied by the evidence necessary to demonstrate the variance is in conformance with all of the criteria below. Failure to satisfy any one of the criteria shall result in denial of the variance.

(a) Special Conditions. There is a hardship identified in (3)(b) below, that is specifically related to a unique natural or physical condition associated with the project site, such as irregular lot shape, size, or natural features, which is not the result of a deed restriction, a lack of knowledge of requirements involved when the property was acquired, or other actions resulting from the proponent’s own actions;

(b) Unnecessary Hardship. The strict application of a standard would deprive the proponent of a reasonable use of the land or rights commonly enjoyed by other properties in the same area. That greater profit would result if a variance were granted is not evidence of a hardship;

(c) General Compatibility. The project is generally compatible with other permitted or authorized uses in the immediate project area and with uses planned for the area under the comprehensive plan and/or the Shoreline Master Program and granting the variance will not cause adverse effects to abutting and adjacent properties or the critical area;

(d) Special Privilege. The requested variance would not constitute a grant of special privilege not enjoyed by other abutting and adjacent properties and the variance is the minimum necessary to afford the requested relief;

(e) Public Interest. The requested variance will not endanger the public safety or health and that the public interest will not be compromised;

(f) Cumulative Impact. In the granting of any variance, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if other variances were to be granted in the area where similar circumstances exist, the total cumulative effect of the variances shall also remain consistent with the policies of this chapter and shall not produce substantial adverse impacts to the designated critical area;

(g) That the public rights of navigation and use of the shorelines will not be adversely affected.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.25 Minor Revisions to Approved Uses or Developments.

(1) Classification Criteria. Minor revisions to a project that has been approved under a permit are allowed in certain circumstances.

(a) Changes that are not substantive are not required to obtain a revision and may be allowed as activities to implement the original permit. Examples of such include minor changes in facility orientation or location, minor changes in structural design that do not change the height or increase ground floor area, and minor accessory structures (such as equipment covers or small sheds near the main structure, etc.);

(b) Substantive changes are those that materially alter the project in a manner that relates to its conformance with the permit requirements, or with the Shoreline Master Program.

Such changes may be approved as a minor revision, if the administrative official determines that the proposed revision and all previous revisions are within the scope and intent of the original permit, and meet the criteria listed below. Changes not able to meet the criteria must obtain a new permit;

(c) No additional over water construction will be involved, except that pier, dock, or float construction may be increased by five hundred square feet or ten percent from the provisions of the original permit, whichever is less;

(d) Lot coverage and height may be increased a maximum of ten percent from the provisions of the original permit; provided, that revisions involving new structures not shown on the original site plan shall require a new permit; and provided further, that any revisions authorized under this subsection shall not exceed height, lot coverage, setback or any other requirements of these regulations;

(e) Landscaping may be added to a project without necessitating an application for a new permit; provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is consistent with this title for the area in which the project is located;

(f) The use authorized pursuant to the original permit is not changed;

(g) No additional significant adverse environmental impact will be caused by the project revision.

(2) Process. Minor revisions to existing permits shall be processed as a Type I review, as provided under YCC Title 16B (Project Permit Administration). Parties of record to the original permit shall be notified of the revision, though a comment period is not required. A revision for a project within shoreline jurisdiction shall follow state filing, appeal and approval standards as provided in WAC 173-27-100 (Revisions to Permits).

(3) Decision Criteria. Decisions on permit revisions shall be based on the general decision criteria found in section 16D.03.14 (Authorization Decisions – Basis for Action).

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.26 Nonconforming Uses and Facilities.

Nonconforming uses and facilities are classified as either conforming uses with nonconforming structures or areas, or as nonconforming uses, as described in subsection 1 below. Both types have different review processes and decision criteria, as provided below in subsections 2 and 3.

(1) Classification Criteria. There may be situations that do not conform to the standards or regulations of this title. These situations are characterized as:

(a) Nonconforming Uses. Uses of a structure or land that were lawfully established at the time of their initiation but are currently prohibited by this title are nonconforming uses, and may utilize structures or land areas that are also nonconforming. A nonconforming use that is discontinued for any reason for more than one year shall have a presumption of intent to abandon, shall not be re-established, and shall lose its nonconforming status, unless a variance is obtained to extend the length of time, based on documentation showing that an intent to abandon did not exist during the period of discontinuance. Such a variance request may be submitted after the deadline has passed. In the case of destruction or damage where reconstruction costs exceed 50% of the assessed value, the structure shall not be rebuilt.

(b) Conforming uses with nonconforming structures or areas are structures or areas for conforming uses that were lawfully established at the time of their initiation, but currently do not conform to the bulk, dimensional or other development standards of this title. Structures or areas in locations approved under a permit shall not be considered nonconforming. Nonconforming outdoor areas that have not been used or maintained for 5 consecutive years shall lose their nonconforming status and may not be reestablished.

(c) Any nonconforming structure, area, or use may be maintained with ordinary care according to the provisions in 16D.01.05 (Applicability), 16D.03.05 (Minor Activities Allowed without a Permit or Exemption) and 16D.03.06 (Exemptions – Procedural Requirements), and do not require additional review under these nonconforming provisions.

(2) Process.

(a) Alterations to conforming uses with nonconforming structures or areas shall be allowed under the following process requirements with the understanding that other permits or reviews may also be required under this title:

(i) Those that do not increase the existing nonconformity and otherwise conform to all other provisions of this title are allowed without additional review under these nonconforming provisions;

(ii) Those that increase the nonconformity, including establishing additional square footage within a buffer, are allowed without additional review under these nonconforming provisions; however, a variance must be obtained for the increased nonconformity;

(iii) Reconstruction or repair of a structure damaged less than 75% of the assessed value shall be processed as provided in subsections (i) and (ii) above;

(iv) A nonconforming structure which is moved any distance shall be processed as provided in subsections (i) and (ii) above;

(v) Reconstruction or repair of structures destroyed or damaged 75% or more of the assessed value of the structure (not the whole property), including that resulting from neglect of maintenance or repair, shall be processed under these nonconforming provisions as a Type II review under YCC Title 16B (Project Permit Administration).

(b) Alterations to Nonconforming Uses.

(i) Those involving expansion or alteration within an existing structure, but do not include alterations to outdoor areas, or expansions of the building’s height or square footage are allowed without additional review under these nonconforming provisions.

(ii) Alterations to nonconforming uses, including their nonconforming structures or areas that do not qualify under paragraph (i) above, shall be processed under these nonconforming provisions as a Type II review, as provided under YCC Title 16B (Project Permit Administration).

(iii) Within shoreline jurisdiction, and only within the urban and rural shoreline environments, a nonconforming use as listed in section 16D.10.05 (Shoreline Land Use Table) may convert to another nonconforming use; although, a nonconforming use shall not change to any use prohibited in section 16D.06.10 (Prohibited Uses). Conversion from one nonconforming use to another within the urban and rural shoreline environments shall be processed under these nonconforming provisions as a Type II review, as provided under YCC Title 16B.

(3) Decision Criteria.

(a) Decisions on projects that require review under the nonconforming provisions, as identified under subsection (2) above, shall be based on the general decision criteria found in section 16D.03.14 (Authorization Decisions – Basis for Action) together with the criteria below.

(b) Applications for conforming uses with nonconforming structures or areas that are subject to subsection 2(a)(v) above shall not be approved unless a finding is made that the project meets all of the following criteria:

(i) Using the original location will not place the structure or people in danger of a hazard;

(ii) The previous structure and any structural shore modification used to protect the structure did not increase hazards or damage to other properties;

(iii) The previous structure and any shore modification used to protect the structure did not cause significant impacts to the functions and values of the critical area.

(i) A nonconforming use may not be altered or expanded in any manner that would bring that use into greater nonconformity;

(ii) Within shoreline jurisdiction, nonconforming uses shall meet the decision criteria for conditional use permits in section 16D.03.21(3) (Shoreline Conditional Uses);

(iii) Within shoreline jurisdiction, and only within the urban and rural shoreline environments, conversion from one nonconforming use to another may be approved if the replacement use is more conforming with the intent of the applicable shoreline environment policies of Plan 2015 (Policies NS.7.05 through NS.7.22), and if the impacts to the shoreline environment from the existing use are reduced by changing the use.

(Ord. 14-2007 § 1 (Exh. A) (part), 2007).

16D.03.27 General Critical Areas Protective Measures.

The standards below apply to all permits and reviews performed under this title.

(1) Financial guarantees to ensure mitigation, maintenance, and monitoring.

(a) When mitigation required pursuant to a development proposal is not completed prior to Yakima County’s final permit approval, such as final plat approval or final building inspection, the administrative official may require the applicant to post a financial guarantee to ensure that the work will be completed. If the development proposal is subject to compensatory mitigation for wetlands and streams, the applicant must post a financial guarantee to ensure mitigation is fully functional. Where financial guarantees are required by other state or federal agencies for specific mitigation features, additional financial guarantees for those features are not required under this provision.

(b) The financial guarantee shall be in the amount of one hundred and twenty-five percent (125%) of the estimated cost of the uncompleted actions and/or the estimated cost of restoring the functions and values of the critical area that are at risk.

(c) The financial guarantee may be in the form of a surety bond, performance bond, assignment of savings account, an irrevocable letter of credit guaranteed by an acceptable financial institution, or other form acceptable to the administrative official, with terms and conditions acceptable to the Yakima County attorney.

(d) The financial guarantee shall remain in effect until the administrative official determines, in writing, that the standards bonded for have been met. Financial guarantees for wetland or stream compensatory mitigation shall be held for a minimum of five (5) years after completion of the work to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

(e) Public development proposals shall be relieved from having to comply with the bonding requirements of this Section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

(f) Any failure to satisfy critical area requirements established by law or condition, including but not limited to the failure to provide a monitoring report within thirty (30) days after it is due or comply with other provisions of an approved mitigation plan, shall constitute a default, and the administrative official may demand payment of any financial guarantees or require other action authorized by the Yakima County code or any other law.

(g) Any funds recovered pursuant to this Section shall be used to complete the required mitigation. Such funds shall not be deposited in the County General Fund, but rather provided with a separate account. The County will use such funds to arrange for completion of the project or mitigation, and follow-up corrective actions.

(h) Depletion, failure, or collection of financial guarantees shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

(2) Declarative Covenants.

(a) When a development is authorized by a critical areas permit or review, a declarative covenant shall, unless determined not to be necessary by the administrative official, be filed with the Yakima County Auditor to inform future owners of the existence of a critical areas decision that runs with the land and contains limits relating to critical areas on the property. The declarative covenant shall read substantially as follows:

This declarative covenant is intended to reduce the incidence of unintentional violation of the Critical Areas Ordinance and/or Shoreline Master Program. Please be informed about your property and the laws that apply to it.

This declarative covenant is provided by Yakima County to the current and future owners of the property described as [enter property description] to inform them that, at the time of this notice, [enter Critical Areas or Shorelines present] existed within or adjacent to the property which are protected and regulated by the Yakima County Critical Areas Ordinance and/or Shoreline Master Program. Development has taken place on the property under permit or review number [enter permit file number], which includes requirements that run with the land. Current and future owners should obtain copies of the permit and also inform themselves about the critical areas, and/or shoreline jurisdiction that exists on the property.

This declarative covenant may be removed or modified if critical areas conditions change, or if the permit is no longer applicable. Contact the Yakima County Public Services for assistance in doing so.

(b) The declarative covenant shall not be required for a development proposal by a public agency or public or private utility:

(i) Within a recorded easement or right-of-way;

(ii) Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

(iii) On the site of a permanent public facility.

(c) The applicant shall submit proof that the declarative covenant has been filed for public record before the administrative official approves any development proposal for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording.

(3) Subdivision Standards. The following standards apply to all permits or reviews under the Unified Land Development Code (YCC Title 19) that contain critical areas:

(a) All subdivisions that contain critical areas shall be eligible for density bonuses or other development incentives, as provided in the Unified Land Development Code (YCC Title 19);

(b) Critical areas shall be actively protected through the following:

(i) Roads and utilities for the subdivision shall avoid critical areas and their buffers, as much as possible;

(ii) When geologically hazardous areas (excluding erosion, oversteepened slopes of intermediate risk, stream undercutting, and earthquake hazards), FEMA floodway, channel migration zone (CMZ), streams, wetlands and/or vegetative buffers fall within the boundary of a subdivision.

(A) Said critical areas shall be protected by placing them entirely within a separate critical area tract, or by including them entirely within one of the developable parcels. Other options, such as conservation easements and building envelopes may be deemed by the administrative official as meeting this provision when special circumstances obstruct the viability of this provision;

(B) For those new lots that do contain said critical areas, usable building envelopes (5,000 square feet or more for residential uses) shall be provided on the plat that lie outside said critical areas.

(iii) New lots partially within the floodplain shall provide a usable building envelope (5,000 square feet or more for residential uses) outside the floodplain;

(iv) New lots entirely within the floodplain shall be at least one (1) acre in area;

(v) For new lots containing streams, wetlands, and/or vegetative buffers, outdoor use envelopes (such as lawns, gardens, play areas, gazebos, etc.) shall be provided on the plat that lie outside said critical areas;

(vi) Degraded vegetative buffers shall be restored, or provided with protection measures that will allow them to recover;

(vii) Floodplains and critical areas shall be depicted on preliminary subdivision plats and relevant information about them disclosed on the final plat.

(Res. 80-2016 (Exh. A) (part), 2016; Ord. 14-2007 § 1 (Exh. A) (part), 2007).