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Title 17
ENVIRONMENTChapters:
17.02 State Environmental Policy Act
17.05 General Policy
17.10 Environmentally Critical Areas
17.15 Tree Regulations
Chapter 17.02
STATE ENVIRONMENTAL POLICY ACTSections:
Article I. Authority
17.02.010 Adoption – Authority (WAC 173-806-010).
Article II. General Requirements
17.02.020 Purpose of this article – Adoption by reference (WAC 173-806-020).
17.02.025 Adoption by reference.
17.02.027 Planned action EIS – Additional provisions.
17.02.030 Additional definitions (WAC 173-806-030).
17.02.040 Designation of responsible official (WAC 173-806-040).
17.02.050 Lead agency determination and responsibilities (WAC 173-806-050).
17.02.060 Transfer of lead agency status to state agency (WAC 173-806-053).
17.02.070 Additional timing considerations (WAC 173-806-058).
Article III. Categorical Exemptions and Threshold Determinations
17.02.080 Purpose of this article – Adoption by reference.
17.02.090 Use of exemptions (WAC 173-806-080).
17.02.100 Environmental checklist (WAC 173-806-090).
17.02.110 Mitigated DNS (WAC 173-806-100).
Article IV. Environmental Impact
Statement (EIS)17.02.120 Purpose of this article – Adoption by reference (WAC 173-806-110).
17.02.130 Preparation – Additional considerations (WAC 173-806-120).
17.02.140 Additional elements to be covered (WAC 173-806-125).
Article V. Commenting
17.02.150 Adoption by reference (WAC 173-806-128).
17.02.160 Public notice (WAC 173-806-130).
17.02.170 Designation of consulted agency official – Responsibilities (WAC 173-806-140).
Article VI. Existing Environmental Documents
17.02.180 Purpose of this article – Adoption by reference (WAC 173-806-150).
Article VII. SEPA and Agency decisions
17.02.190 Purpose of this article – Adoption by reference (WAC 173-806-155).
17.02.195 Appeals (WAC 173-806-170).
17.02.200 Substantive authority (WAC 173-806-160).
17.02.210 Notice – Statute of limitations (WAC 173-806-173).
Article VIII. Definitions
17.02.220 Purpose of this article – Adoption by reference (WAC 173-806-175).
Article IX. Categorical Exemptions
17.02.230 Adoption by reference (WAC 173-806-180).
Article X. Agency Compliance
17.02.240 Purpose of this article – Adoption by reference (WAC 173-806-185).
17.02.250 Environmentally sensitive areas (WAC 173-806-190).
17.02.260 Fees (WAC 173-806-200).
Article XI. Forms
17.02.270 Adoption by reference (WAC 173-806-230).
Article XII. Severability
17.02.280 Severability (WAC 173-806-220).
Article I. Authority
17.02.010 Adoption – Authority (WAC 173-806-010).
The city adopts the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA rules, WAC 197-11-904. This chapter contains this city’s SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. The SEPA rules may be waived pursuant to RCW 34.05.313(2) whenever the city enters a written agreement with the Washington State Department of Ecology to participate in a pilot project to test proposed or newly adopted rules, when such agreement provides for waiver of particular SEPA rules as authorized by RCW 34.05.313. (Ord. 2314 § 1, 2000; Ord. 1415 § 2, 1984)
Article II. General Requirements
17.02.020 Purpose of this article – Adoption by reference (WAC 173-806-020).
This article contains the basic requirements that apply to the SEPA process. The city adopts the following sections of Chapter 197-11 WAC by reference:
WAC
197-11-040 Definitions.
197-11-050 Lead agency.
197-11-055 Timing of the SEPA process.
197-11-060 Content of environmental review.
197-11-070 Limitations on actions during SEPA process.
197-11-080 Incomplete or unavailable information.
197-11-090 Supporting documents.
197-11-100 Information required of applicants.
(Ord. 1415 § 2, 1984)
17.02.025 Adoption by reference.
The city adopts by reference the following sections of Chapter 197-11 WAC relating to planned actions, as now exist or as hereafter amended:
WAC
197-11-164 Planned actions – Definitions and criteria.
197-11-168 Ordinances or resolutions designating planning actions – Procedures for adoption.
197-11-172 Planned actions – Project review.
The adopted sections of Chapter 197-11 WAC as they exist on the date of adoption of the ordinance codified in this chapter are set forth in full in the attached appendix to the ordinance codified in this chapter. (Ord. 2426 § 1, 2002)
17.02.027 Planned action EIS – Additional provisions.
A. Periodic Update.
1. No later than five years following approval of a planned action EIS, and every five years thereafter, the city’s responsible official shall review the content of the EIS and determine whether the EIS adequately describes the probable significant adverse environmental impacts of development(s) designated as planned actions. If the responsible official determines that the EIS does not adequately describe the probable significant adverse environmental impacts, the responsible official shall issue a report identifying the inadequacies in the EIS. No development may be processed as a planned action until the deficiencies in the EIS have been addressed in additional environmental document(s).
2. If the official determines that the EIS does adequately describe the probable significant adverse environmental impacts, no new environmental document is required.
3. Notice of a determination under this subsection shall be provided to all parties of record for the planned action EIS and to anyone who has requested notification of action under this subsection.
4. Any determination pursuant to this subsection may be appealed by filing a written appeal with the responsible official no later than 14 calendar days following the date of issuance of the determination. Any such appeal shall be processed under Process II (LMC 1.35.200 et seq.).
B. Fees for Preparation of a Planned Action EIS.
1. Where a planned action EIS is prepared for activities initiated by some persons or entity other than the city, the responsible official may require payment of all of the costs for preparing the EIS (including, but not limited to, staff hours and consultant fees) by the person(s) or entity initiating the action, pursuant to LMC 17.02.260.
2. Where a planned action EIS is prepared at the initiation of the city, the city may charge a fee on future development that qualifies as a planned action in order to recover all costs of preparing the EIS. Such a fee shall be set in the ordinance designating the development that qualifies as a planned action, pursuant to WAC 197-11-168.
C. Public Participation.
1. The process for preparation of a planned action EIS shall include a public outreach plan designed for the inclusion of the public in the process. The goals of the public outreach plan shall be:
a. To give notice to the public of the intent to approve a planned action EIS; and
b. To solicit from the public comments on the potential environmental impacts of planned action development.
2. The public outreach plan shall emphasize early and continuing public participation and shall provide for: early notification of preparation of a planned action EIS (including a description of the planned action process), opportunity for written comments (both in establishing the scope of the EIS and in review of the draft EIS), public meetings after effective notice, provisions for open discussion, communication programs, information services, and consideration and response to public comments. Persons who have filed a written request with the community development department shall be notified of preparation of the EIS and of opportunities to participate in that process. (Ord. 2426 § 2, 2002)
17.02.030 Additional definitions (WAC 173-806-030).
In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this chapter, the following terms shall have the following meanings, unless the context indicates otherwise:
A. “Department” means any division, subdivision or organizational unit of the city established by ordinance, rule, or order.
B. “SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology.
C. “Ordinance” means the ordinance, resolution, or other procedure used by the city to adopt regulatory requirements.
D. “Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures). (Ord. 1415 § 2, 1984)
17.02.040 Designation of responsible official (WAC 173-806-040).
A. For those proposals for which the city is the lead agency, the responsible official shall be the mayor and/or an environmental review committee as appointed by the mayor.
B. For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.
C. The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.11 RCW. (Ord. 1415 § 2, 1984)
17.02.050 Lead agency determination and responsibilities (WAC 173-806-050).
A. The department within the city receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.
B. When the city is the lead agency for a proposal, the department receiving the application shall determine the responsible official who shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.
C. When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No city department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the city may conduct supplemental environmental review under WAC 197-11-600.
D. If the city or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-940 within the 15-day time period. Any such petition on behalf of the city may be initiated by the responsible official.
E. Departments of the city are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, that the responsible official and any department that will incur responsibilities as the result of such agreement approve the agreement.
F. Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal. (That is: which agencies require nonexempt licenses?) (Ord. 1415 § 2, 1984)
17.02.060 Transfer of lead agency status to state agency (WAC 173-806-053).
For any proposal for a private project where the city would be the lead agency and for which one or more state agencies have jurisdiction, the city’s responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the city shall be an agency with jurisdiction. To transfer lead agency duties, the city’s responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the city shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 1415 § 2, 1984)
17.02.070 Additional timing considerations (WAC 173-806-058).
A. For nonexempt proposals, the DNS or final EIS for the proposal shall accompany the city’s staff recommendation to any appropriate advisory body, such as the planning commission.
B. If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 1415 § 2, 1984)
Article III. Categorical Exemptions and Threshold Determinations
17.02.080 Purpose of this article – Adoption by reference.
This article contains the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This article also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections by reference as supplemented in this article:
WAC
197-11-300 Purpose of this part.
197-11-305 Categorical exemptions.
197-11-310 Threshold determination required.
197-11-315 Environmental checklist.
197-11-330 Threshold determination process.
197-11-335 Additional information.
197-11-340 Determination of nonsignificance (DNS).
197-11-350 Mitigated DNS.
197-11-360 Determination of significance (DS)/Initiation of scoping.
197-11-390 Effect of threshold determination.
(Ord. 1415 § 2, 1984)
17.02.090 Use of exemptions (WAC 173-806-080).
A. Each department within the city that receives an application for a license or, in the case of governmental proposals, the department initiating the proposal, shall determine whether the license and/or the proposal is exempt. The department’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter apply to the proposal. The city shall not require completion of an environmental checklist for an exempt proposal.
B. In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.
C. If a proposal includes both exempt and nonexempt actions, the city may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:
1. The city shall not give authorization for:
a. Any nonexempt action;
b. Any action that would have an adverse environmental impact; or
c. Any action that would limit the choice of alternatives;
2. A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and
3. A department may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved. (Ord. 1415 § 2, 1984)
17.02.100 Environmental checklist (WAC 173-806-090).
A. A completed environmental checklist shall be filed at the same time as an application for a permit, license, certificate, or other approval not exempted in this chapter; except a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The checklist shall be in the form of WAC 197-11-060 with the following additions: noise examples in Question 7-6-1 shall include aircraft noises.
B. For private proposals, the city will require the applicant to complete the environmental checklist providing assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal. (Ord. 1415 § 2, 1984)
17.02.110 Mitigated DNS (WAC 173-806-100).
A. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.
B. An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:
1. Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and
2. Precede the city’s actual threshold determination for the proposal.
C. The responsible official should respond to the request for early notice within 15 working days. The response shall:
1. Be written;
2. State whether the city currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the city to consider a DS; and
3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.
D. As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.
E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal:
1. If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a DNS under WAC 197-11-340(2).
2. If the city indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate.
3. The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent stormwater runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200-foot stormwater retention pond at Y location” are adequate.
4. Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies, or other documents.
F. A mitigated DNS is issued under WAC 197-11-340(2) requiring a 15-day comment period and public notice.
G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city.
H. If the city’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in the mitigated DNS for the proposal, the city should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a), Withdrawal of DNS.
I. The city’s written response under subsection (B) of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city to consider the clarifications or changes in its threshold determination. (Ord. 1415 § 2, 1984)
Article IV. Environmental Impact
Statement (EIS)17.02.120 Purpose of this article – Adoption by reference (WAC 173-806-110).
This article contains the rules for preparing environmental impact statements. The city adopts the following sections by reference, as supplemented by this article:
WAC
197-11-400 Purpose of EIS.
197-11-402 General requirements.
197-11-405 EIS types.
197-11-406 EIS timing.
197-11-408 Scoping.
197-11-410 Expanded scoping. (optional)
197-11-420 EIS preparation.
197-11-425 Style and size.
197-11-430 Format.
197-11-435 Cover letter or memo.
197-11-440 EIS contents.
197-11-442 Contents of EIS on nonproject proposals.
197-11-443 EIS contents when prior nonproject EIS.
197-11-444 Elements of the environment.
197-11-448 Relationship of EIS to other considerations.
197-11-450 Cost-benefit analysis.
197-11-455 Issuance of DEIS.
197-11-460 Issuance of FEIS.
(Ord. 1415 § 2, 1984)
17.02.130 Preparation – Additional considerations (WAC 173-806-120).
A. Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.
B. The DEIS and FEIS or draft and final SEIS shall be prepared by city staff, the applicant, or by a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.
C. The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.) (Ord. 1415 § 2, 1984)
17.02.140 Additional elements to be covered (WAC 173-806-125).
The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this chapter:
A. Economy;
B. Social policy analysis;
C. Cost-benefit analysis. (Ord. 1415 § 2, 1984)
Article V. Commenting
17.02.150 Adoption by reference (WAC 173-806-128).
This article contains rules for consulting, commenting and responding on all environmental documents under SEPA, including rules for public notice and hearings. The city adopts the following sections by reference as supplemented in this article:
WAC
197-11-500 Purpose of this part.
197-11-502 Inviting comment.
197-11-504 Availability and cost of environmental documents.
197-11-508 SEPA register.
197-11-535 Public hearings and meetings.
197-11-545 Effect of no comment.
197-11-550 Specificity of comments.
197-11-560 FEIS response to comments.
197-11-570 Consulted agency costs to assist lead agency.
(Ord. 1415 § 2, 1984)
17.02.160 Public notice (WAC 173-806-130).
A. Whenever the city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), the city shall give public notice as follows:
1. If public notice is required for a nonexempt license, the notice shall state whether a DS or DNS has been issued and when comments are due.
2. If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by:
a. Posting the property, for site-specific proposals;
b. A weekly listing of all DNSs and DSs issued during the past week under WAC 197-11-340(2) and WAC 197-11-360(3) shall be posted at City Hall.
3. Whenever the city issues a DS under WAC 197-11-360(3), the city shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.
B. Whenever the city issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by:
1. Indicating the availability of the DEIS in any public notice required for a nonexempt license, and at least one of the following:
a. Posting the property, for site-specific proposals;
b. Publishing notice in a newspaper of general circulation in the county, city or general area where the proposal is located;
c. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;
d. Notifying the news media;
e. Placing notices in appropriate regional, neighborhood, ethnic or trade journals; and/or
f. Publishing notice in agency newsletters and/or sending notice to agency mailing list (general lists or specific list for proposals or subject areas); and/or
g. A weekly listing of any such DEISs and SEISs issued.
C. Whenever possible, the city shall integrate the public notice required under this section with existing notice procedures for the city’s nonexempt permit(s) or approval(s) required for the proposal.
D. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 1451 § 2, 1985; Ord. 1415 § 2, 1984)
17.02.170 Designation of consulted agency official – Responsibilities (WAC 173-806-140).
A. The responsible official shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS; and
B. Shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Ord. 1415 § 2, 1984)
Article VI. Existing Environmental Documents
17.02.180 Purpose of this article – Adoption by reference (WAC 173-806-150).
This article contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the city’s own environmental compliance. The city adopts the following sections by reference:
WAC
197-11-600 When to use existing environmental documents.
197-11-610 Use of NEPA documents.
197-11-620 Supplemental environmental impact statement – Procedures.
197-11-625 Addenda – Procedures.
197-11-630 Adoption – Procedures.
197-11-635 Incorporation by reference – procedures.
197-11-640 Combining documents.
(Ord. 1415 § 2, 1984)
Article VII. SEPA and Agency decisions
17.02.190 Purpose of this article – Adoption by reference (WAC 173-806-155).
This article contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This article also contains procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following sections by reference:
WAC
197-11-650 Purpose of this part.
197-11-655 Implementation.
197-11-660 Substantive authority and mitigation.
17.02.195 Appeals (WAC 173-806-170).
A. The city establishes the following administrative appeal procedures under RCW 43.21C.075 (as amended by Chapter 347, Laws of 1995 (ESHB 1724)), WAC 197-11-680 and RCW 43.21C.060:
1. Any agency or person may appeal the city’s procedural compliance with Chapter 197-11 WAC for issuance of the following:
a. A final determination of nonsignificance (DNS) or mitigated DNS. The appeal must be filed in writing with the planning department within 14 calendar days of the date that the DNS or mitigated DNS becomes final. Any and all appeals of a final DNS or mitigated DNS shall be heard simultaneously with the underlying application for a city permit of approval. If processing the underlying application does not include a public hearing, the appeal shall be heard by the hearing examiner, pursuant to Process VI, LMC 1.35.600 et seq.
b. A final determination of significance. The appeal must be filed in writing with the planning department within 14 calendar days of the issuance of the determination of significance by the city. Any such appeal shall be processed according to Process VI, LMC 1.35.600 et seq.
2. Any person or agency may appeal to the city council (pursuant to RCW 43.21C.060) any substantive action take by the city pursuant to SEPA and Chapter 197-11 WAC (for example: requiring particular mitigation measures or denying a project) except for actions by the city council by filing a written appeal with the finance director within 14 calendar days of final action on the underlying project. Any such appeal shall be processed according to Process VII, LMC 1.35.700 et seq.
B. The city shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (Ord. 2073 § 1, 1996; Ord. 1451 § 1, 1985; Ord. 1415 § 2, 1984)
Note: see also LMC 17.02.200(E).
17.02.200 Substantive authority (WAC 173-806-160).
A. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city.
B. The city may attach conditions to a permit or approval for a proposal so long as:
1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and
2. Such conditions are in writing; and
3. The mitigation measures included in such conditions are reasonable and capable of being accomplished; and
4. The city has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and
5. Such conditions are based on one or more policies in subsection (D) of this section and cited in the license or other decision document.
C. The city may deny a permit or approval for a proposal on the basis of SEPA so long as:
1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this chapter; and
2. A finding is made that there are not reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and
3. The denial is based on one or more policies identified in subsection (D) of this section and identified in writing in the decision document.
D. The city designates and adopts by reference the following policies as the basis for the city’s exercise of authority pursuant to this section:
1. The city shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs and resources to the end that the state and its citizens may:
a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
b. Assure for all people of Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings;
c. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
d. Preserve important historic, cultural and natural aspects of our national heritage;
e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;
f. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
2. The city recognizes that each person has a fundamental and inalienable right to healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.
3. The city adopts by reference the policies in the following city codes, ordinances, resolutions and plans as now existing or as may hereafter be amended:
a. Zoning Code, LMC Title 21;
b. Comprehensive Plan, LMC Title 18, including comprehensive plan map;
c. Subdivision Regulations, LMC Title 19;
d. Environment, LMC Title 17;
e. Building Code, LMC Title 16;
f. Storm Drainage Regulations, Chapter 13.40 LMC;
g. Land Clearing and Grading Regulations, Chapter 21.08 LMC.
E. When any proposal or action not requiring a decision of the city council is conditioned or denied on the basis of SEPA by a non-elected official, the decision shall be appealable to the city council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within 10 days of the decision being appealed. Review by the city council shall be on a de novo basis. (Ord. 1415 § 2, 1984)
Note: see also LMC 17.02.195.
17.02.210 Notice – Statute of limitations (WAC 173-806-173).
A. The city, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.
B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1415 § 2, 1984)
Article VIII. Definitions
17.02.220 Purpose of this article – Adoption by reference (WAC 173-806-175).
This article contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by WAC 173-806-040:
WAC
197-11-700 Definitions.
197-11-702 Act.
197-11-704 Action.
197-11-706 Addendum.
197-11-708 Adoption.
197-11-710 Affected tribe.
197-11-712 Affecting.
197-11-714 Agency.
197-11-716 Applicant.
197-11-718 Built environment.
197-11-720 Categorical exemption.
197-11-722 Consolidated appeal.
197-11-724 Consulted agency.
197-11-726 Cost-benefit analysis.
197-11-728 City.
197-11-730 Decision maker.
197-11-732 Department.
197-11-734 Determination of nonsignificance (DNS).
197-11-736 Determination of significance (DS).
197-11-738 City.
197-11-740 Environment.
197-11-742 Environmental checklist.
197-11-744 Environmental document.
197-11-746 Environmental review.
197-11-748 Environmentally sensitive area.
197-11-750 Expanded scoping.
197-11-752 Impacts.
197-11-754 Incorporation by reference.
197-11-756 Lands covered by water.
197-11-758 Lead agency.
197-11-760 License.
197-11-762 Local agency.
197-11-764 Major action.
197-11-766 Mitigated DNS.
197-11-768 Mitigation.
197-11-770 Natural environment.
197-11-772 NEPA.
197-11-774 Nonproject.
197-11-776 Phased review.
197-11-778 Preparation.
197-11-780 Private project.
197-11-782 Probable.
197-11-784 Proposal.
197-11-786 Reasonable alternative.
197-11-788 Responsible official.
197-11-790 SEPA.
197-11-792 Scope.
197-11-793 Scoping.
197-11-794 Significant.
197-11-796 State agency.
197-11-797 Threshold determination.
197-11-799 Underlying governmental action.
(Ord. 1415 § 2, 1984)
Article IX. Categorical Exemptions
17.02.230 Adoption by reference (WAC 173-806-180).
The city adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, including WAC 173-806-080, Use of Exemptions, and 173-806-190, Environmentally Sensitive Areas:
WAC
197-11-800 Categorical Exemptions.
197-11-880 Emergencies.
197-11-890 Petitioning DOE to Change Exemptions.
(Ord. 1415 § 2, 1984)
Article X. Agency Compliance
17.02.240 Purpose of this article – Adoption by reference (WAC 173-806-185).
This article contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The city adopts the following sections by reference, as supplemented by WAC 173-806-050 through 173-806-053 and this article:
WAC
197-11-900 Purpose of this part.
197-11-902 Agency SEPA policies.
197-11-916 Application to ongoing actions.
197-11-920 Agencies with environmental expertise.
197-11-922 Lead agency rules.
197-11-924 Determining the lead agency.
197-11-926 Lead agency for governmental proposals.
197-11-928 Lead agency for public and private proposals.
197-11-930 Lead agency for private projects with one agency with jurisdiction.
197-11-932 Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a city.
197-11-934 Lead agency for private projects requiring licenses from local agency, not a city, and one or more state agencies.
197-11-936 Lead agency for private projects requiring licenses from more than one state agency.
197-11-938 Lead agencies for specific proposals.
197-11-940 Transfer of lead agency status to a state agency.
197-11-942 Agreements on lead agency status.
197-11-944 Agreements on division of lead agency duties.
197-11-946 DOE resolution of lead agency disputes.
197-11-948 Assumption of lead agency status.
(Ord. 1415 § 2, 1984)
17.02.250 Environmentally sensitive areas (WAC 173-806-190).
A. The map attached to the ordinance codified in this chapter and available for review at City Hall, designates the location of environmentally sensitive areas within the city and is adopted by reference. In addition, all zoning boundaries where residential zones adjoin substantially more dense residential or intense nonresidential zones are designated as environmentally sensitive areas.
B. For all environmentally sensitive areas, the exemptions within WAC 197-11-800 that are inapplicable for that area are:
1. The construction or location of any residential structures of four dwelling units;
2. The construction of an office, school, commercial, recreational, service or storage building with 4,000 square feet of gross floor area, and with associated parking facilities designed for 20 automobiles;
3. The construction of parking lot designed for 20 automobiles;
4. Any landfill or excavation of 100 cubic yards throughout the total lifetime of the fill or excavation; and any fill or excavation classified as a Class I, II, or III forest practice under RCW 76.09.050 or regulations thereunder;
5. Except upon lands covered by water, the approval of short plats or short subdivisions pursuant to the procedures required by RCW 8.17.060;
6. All communications lines, including cable TV, but not including communication towers or relay stations;
7. All stormwater, water and sewer facilities, lines, equipment, hookups or appurtenances including, utilizing or related to lines eight inches or less in diameter;
8. All electric facilities, lines, equipment or appurtenances, not including substation, with an associated voltage of 55,000 volts or less; and the overbuilding of existing distribution lines (55,000 volts or less) with transmission lines (more than 55,000 volts); and the undergrounding of all electric facilities, lines equipment or appurtenances;
9. All natural gas distribution (as opposed to transmission) lines and necessary appurtenant facilities and hookups;
10. All developments within the confines of any existing electric substation, reservoir, pump station, or well; provided, that additional appropriations of water are not exempted by this subsection;
11. Periodic use of chemical or mechanical means to maintain a utility or transportation right-of-way in its design condition; provided, that chemicals used are approved by the Washington State Department of Agriculture and applied by licensed personnel. This exemption shall not apply to the use of chemicals within watersheds that are controlled for the purpose of drinking water quality in accordance with WAC 248-54-660;
12. All grants of rights-of-way by agencies to utilities for use for distribution (as opposed to transmission) purposes;
13. Issuance of leases for school sites;
14. Issuance of leases for, and placement of, mooring buoys, designed to serve pleasure craft;
15. Development of recreational sites not specifically designed for all-terrain vehicles and not including more than 12 campsites.
Unidentified exemptions shall continue to apply within environmentally sensitive areas of the city.
C. The city shall treat proposals located wholly or partially within an environmentally sensitive area no differently than other proposals under this chapter, making a threshold determination for all such proposals. The city shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area.
D. Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped. (Ord. 1415 § 2, 1984)
17.02.260 Fees (WAC 173-806-200).
The city shall require the following fees for its activities in accordance with the provisions of this chapter:
A. Threshold Determination.
1. For every environmental checklist the city will review when it is lead agency, the city shall collect a fee as set forth in Chapter 3.104 LMC from the proponent of the proposal prior to undertaking the threshold determination, except that there shall be no checklist fee for building permits. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.
B. Environmental Impact Statement.
1. When the city is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees and the city, the city may charge and collect a reasonable fee, as set forth in Chapter 3.104 LMC, from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.
2. The responsible official may determine that the city will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the city and may bill such costs and expenses directly to the applicant. The city may require the applicant to post bond or otherwise ensure payment of such costs, as set forth in Chapter 3.104 LMC. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals.
3. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsections (B)(1) or (B)(2) of this section which remain after incurred costs are paid.
C. The city may collect a reasonable fee from an applicant to cover the cost of meeting public notice requirements of this chapter relating to the applicant’s proposal.
D. The city may collect a fee for performing its duties as a consulted agency.
E. The city may charge any person for copies of any document prepared under this article, and for mailing the document, in a manner provided by Chapter 42.17 RCW. (Ord. 2656 §§ 1, 2, 2006; Ord. 2242 § 2, 1999; Ord. 1630 § 2, 1988; Ord. 1415 § 2, 1984)
Article XI. Forms
17.02.270 Adoption by reference (WAC 173-806-230).
The city adopts the following forms and sections by reference:
WAC
197-11-960 Environmental checklist.
197-11-965 Adoption notice.
197-11-970 Determination of nonsignificance (DNS).
197-11-980 Determination of significance and scoping notice (DS).
197-11-985 Notice of assumption of lead agency status.
197-11-990 Notice of action.
(Ord. 1415 § 2, 1984)
Article XII. Severability
17.02.280 Severability (WAC 173-806-220).
If any provision of this article or its application to any person or circumstance is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected. (Ord. 1415 § 2, 1984)*
*For statutory requirements, see Chapter 90.58 RCW.
Chapter 17.05
GENERAL POLICYSections:
17.05.010 Adoption of state policy.
17.05.020 Earth.
17.05.030 Air.
17.05.040 Water.
17.05.050 Plants and animals.
17.05.060 Energy and natural resources.
17.05.070 Environmental health.
17.05.080 Land and shoreline use.
17.05.085 Shoreline Management Act Guidelines.
17.05.090 Housing.
17.05.100 Aesthetics.
17.05.110 Light and glare.
17.05.120 Recreation.
17.05.140 Transportation.
17.05.150 Public services.
17.05.160 Utilities.
17.05.010 Adoption of state policy.
The city adopts the specific policies set forth in this chapter relating to individual elements of the environment as listed in the SEPA guidelines, Chapter 197-11 WAC, promulgated by the Conference on Environmental Policies and the Department of Ecology. (Ord. 1416 § 2, 1984)
17.05.020 Earth.
Existing ordinances administered by the building and engineering departments provide standards for safe development with respect to slope stability and the suitability of soil-bearing capacity for placement of structures. However, development may comply with these standards yet fail to minimize the disturbance of existing vegetation and soils, thereby affecting the use and amenities of nearby properties and the community in general (for example, by use of retaining structures, a project may be “safe” even though the natural terrain and vegetation are greatly disturbed). It is the intent of this chapter to:
A. Encourage land development practices which minimize disturbance to vegetation and soils, adopting development plans to the natural topographical features to the extent feasible and particularly avoiding disturbance of steep slopes, where the visual impact, erosion potential and opportunity for landslides is greatest;
B. Encourage prompt development and/or restoration of property after land clearing through phased clearing and grading, hydro-seeding, and other appropriate engineering techniques;
C. Encourage applications for plats, and other site plans, to be submitted as planned unit developments for greater flexibility in design, thereby helping to avoid disturbance of natural terrain and vegetation, and the consequent impacts mentioned above, which sometimes occur because of adherence to rigid standards;
D. Areas which are so steep that development at the allowed density is believed inadvisable shall be classified as environmentally sensitive areas. (Ord. 1416 § 2, 1984)
17.05.030 Air.
Various federal, state, regional and local agencies regulate the emission of dust, dirt, ashes, smoke, fumes, heat, vapors or gases which can impair the health of humans, animals and vegetation, or damage property beyond the parcel of the use creating the emission. Emissions of any odors which are not otherwise prohibited by law, but which are detrimental or disturbing to surrounding property or individuals, shall be mitigated by installation and maintenance of filters, or such other means as are technologically feasible, or by modification or denial of projects, or parts of projects. Where necessary, before-and-after observations and measurement of particulate matter and gases may be required by independent air quality consultants as a means of monitoring and insuring compliance, and requiring corrections. (Ord. 1416 § 2, 1984)
17.05.040 Water.
The city currently has a regulation administered by the public works department which regulates runoff and requires on-site stormwater retention, and requires interim controls of runoff and erosion during construction (Chapter 13.40 LMC). In addition, the public works department regulates the location and grade of buildings within areas subject to flooding, in connection with the National Flood Control Program per Resolution Nos. 75-7 and 75-8. It is city policy to:
A. Encourage development practices which respect and preserve the city’s watercourses, integrating wherever possible stormwater control facilities and natural creeks, ponds and other water bodies into the design of projects to preserve water quality, control sedimentation and to preserve and enhance the aesthetic quality of the waters and nearby developments;
B. Enhance the suitability of waters for fish and other aquatic life;
C. Preserve adjacent wetlands as habitat for small animal life which is presently supported in such areas;
D. All areas of significance as wetlands, streams and water bodies shall be classified as environmentally sensitive areas. (Ord. 1416 § 2, 1984)
17.05.050 Plants and animals.
The city presently has an ordinance which regulates clearing, Ordinance No. 1035, codified in Chapter 21.08 LMC. It requires a permit for clearing, and criteria to be used in evaluating permits, but does not explicitly require that trees be preserved. It is the policy of the city that:
A. Clearing permits and other administrative actions may be conditioned or denied in the case of absolute, unselective clearing which is not for immediate development or any of the exempted actions stated in LMC 21.08.060, or otherwise condoned or required in the interests of health, safety and welfare.
B. Unnecessary disruption to the landscape is to be avoided. Vegetation must not be cleared until shortly before construction begins.
C. The city shall discourage clearing of vegetation and removal of groundcover which maintains slope stability, reduces erosion, shades shorelines, and provides aquatic habitat.
D. The city shall identify all areas of biological significance. Such areas shall be classified as environmentally sensitive areas. Mitigative measures shall be required of developments, which could cause irreversible damage to such areas. (Ord. 1416 § 2, 1984)
17.05.060 Energy and natural resources.
It is the policy of the city to generally encourage efficient use of renewable and nonrenewable resources, and to encourage projects which incorporate energy conservation features in design and construction. (Ord. 1416 § 2, 1984)
17.05.070 Environmental health.
A. Most health-related services are provided by the Snohomish County health district, of which Lynnwood is a part. Any activity which would expose the city to health or safety hazards not covered by the regulations of the health department or other agencies should be discouraged. Proposals involving the potential risk of an explosion or the release of hazardous substances should be required to include specific measures which will ensure the public health, safety and welfare.
B. The State Noise Control Act of 1974, Chapter 70.107 RCW, and Chapter 173-60 WAC, regulate most sources of noise, except motor vehicle engine noise. According to WAC 173-60-110(2), local regulations (except nuisance regulations) cannot impose noise controls differing from the state law. It is the city’s policy to minimize the exposure of city residents to the harmful physiological and psychological effects or adverse impacts on property values due to excessive noise, in accordance with standards of the State Noise Control Act, and any other applicable laws, as presently existing or as hereafter adopted or amended.
1. Project should be so oriented that physical barriers to noise are located in the noise path from potential sources of excessive or potentially excessive noise to areas or buildings which might be adversely impacted. Doors and windows, and any exterior equipment such as roof-top air conditioning shall be so located or buffered that noise is minimized.
2. When deemed necessary, the responsible official is authorized to require applicants for city permits to provide documentation by a qualified consultant that the project will not exceed noise standards or violate nuisance regulations pertaining to noise, and provide recommendations from such a consultant as to how noise can be minimized. The responsible official is authorized to condition or deny projects which would violate state and local standards. (Ord. 1416 § 2, 1984)
17.05.080 Land and shoreline use.
The city has an adopted comprehensive plan which is the guide for land use decisions. The comprehensive plan is updated from time-to-time in response to applications or other events which prompt review. Amendments to the zoning map, property subdivisions, and other land development approvals, even when consistent with the comprehensive plan, may have significant adverse impacts, which site-screen standards such as fences and densely planted site-screens are not always capable of totally mitigating. It is the policy of the city that:
A. All proposals to amend the comprehensive plan shall be reviewed not only on the basis of whether or not the proposed use would have adverse impacts, but also shall be particularly scrutinized with respect to whether or not the proposal is precedent setting with a high probability of leading to additional amendments of a similar nature (i.e., cumulative impacts).
B. Amendments to the zoning map, property subdivisions, and other land development approvals, even when consistent with the comprehensive plan, may have significant adverse impacts. Precedent-setting actions and land development proposals with potential for adverse impacts should be disclosed to the public through circulation of an EIS, mitigated by modification of the project, or both.
C. In order to fulfill the intent of SEPA, Chapter 197-11 WAC, a series of related actions should be reviewed as one. For example, a proposed private construction project may require any or all of the following approvals which are all subject to SEPA: comprehensive plan amendment, rezone, plan, conditional use permit, variance (if in an environmentally sensitive area), building permit. Such a series of functionally related and interdependent actions should be considered from start to finish in their totality, as a single action; provided, that future elements of the total proposal that are speculative in nature need not be considered.
D. If a new use or zone that did not previously exist nearby is being introduced into an area, such as property adjacent to a single-family residential zone being reclassified to a nonresidential zone, or property adjacent to a stable single-family residential area being reclassified to multiple-family on the comprehensive plan or zoning map, it is the policy of the city that, in such cases, the intruding use or zone should bear the burden of the impacts; i.e., the transition from one use to another should occur within the property proposed to be changed. A portion of the property being changed may be required to be developed at approximately the intensity of use existing on the adjacent developed property which is zoned or developed more restrictively and any development rights thus lost can be transferred to the other portion of the property by developing it more intensively. In order for this policy to be implemented, rezones, plats and other such applications should be submitted as planned unit development applications, thereby creating necessary flexibility in site plans.
E. Fill-in development of vacant parcels which were passed over by earlier development, but which are served by utilities and streets which meet current standards should be encouraged in order to maximize efficiency of existing capital improvements.
F. All parties connected with development shall be encouraged to incorporate open space into developments through setbacks, view corridors and recreation areas. Avoiding development on steep slopes, retaining open drainage ways and preserving areas with natural or scenic value can achieve open space amenities often with little or no sacrifice of development potentials. (See LMC 17.05.100, Aesthetics).
G. Whenever possible, boundaries between uses should occur along physical features such as water or slopes. Streets as boundaries should be avoided except in the case of arterials of such a scale that any use which can tolerate the street would be unlikely to be adversely impacted by any uses located across the street.
H. Where intensely zoned properties are required to provide screening next to more restrictively zoned properties, the site plan should include sound and sight buffers such as mounded site-screen planters and/or placing of blank walls next to site-screen plantings, such walls being textured or otherwise modified to soften their appearance. Textured walls are particularly needed if the height of buildings of the more intense use is considerably greater than the height of the more restrictive property.
I. Accessory activities and uses such as off-street parking, loading and unloading or outdoor activity should be located away from property lines of more restrictive zoned property or less intense uses.
J. There are no shorelines, as defined in the Shorelines Management Act, in the city of Lynnwood. (Ord. 1416 § 2, 1984)
17.05.085 Shoreline Management Act Guidelines.
The city has adopted the Shoreline Management Act Guidelines for the purpose of establishing a program for the administration and enforcement of the permit system for shoreline development.
The Shoreline Management Act Guidelines contained in Chapter 173-14 WAC as now or hereafter amended are hereby adopted as the official program for the administration and enforcement of the permit system required by RCW 90.58.140. The process and procedure for the granting, denying, revising or rescinding of any and all shoreline permits shall comply with said guidelines. (Ord. 1627 § 1, 1988)
17.05.090 Housing.
The provision and maintenance of adequate housing for the residents of Lynnwood, for all income levels and all housing types is encouraged.
A. When reviewing nonresidential proposals which involve discretion, the extent to which nonresidential development would reduce existing housing stock, or reduce land available for residential development, should be weighed.
B. Residential areas shall be protected from encroachment by developments which detract from the desirability of the area, and thereby encourage people to seek housing elsewhere, or which would influence available residential land towards nonresidential use. (Ord. 1416 § 2, 1984)
17.05.100 Aesthetics.
A. Development which maintains and improves the existing aesthetic character of the community should be encouraged. It is the policy of the city that:
1. Existing vegetation should be preserved for the maximum possible time before being cleared for development.
2. Building designers should strive for an architectural style which will be harmonious with surrounding buildings.
3. Utility lines shall be underground wherever possible.
4. Owners of signs at business, commercial and industrial establishments should minimize use of flashing and blinking features, especially near residential development, and the choice of colors and lighting should be selected with the purpose of not being offensive to nearby residents. Passive colors are favored as opposed to bright colors.
5. Proposed new structures shall be reviewed and conditioned with respect to any adverse impacts relating to the height, bulk or orientation, including any accessory structures such as signs. Building surfaces exposed to public view from residential areas should be so constructed as to soften the visual impact by use of techniques including, but not limited to, texturing, use of conservative tones, vertical or horizontal extensions of walls to conceal mechanical equipment, and screening storage areas or debris with plans and fences. Orientation of access, driveways, walkways, and fenestration should be reviewed as it relates to possible loss of privacy on abutting properties. Protection of existing scenic areas open to the public should be maximized.
B. In order to implement this policy, the responsible official is authorized to require site plans, building elevations, descriptions of exterior materials, and colors or tones. (Ord. 1416 § 2, 1984)
17.05.110 Light and glare.
It is the policy of the city that any activity shall not produce light or glare so as to create a nuisance beyond the parcel within which the use is located. In particular:
A. Building materials with high light reflective qualities should not be used in construction of buildings where reflected sunlight or artificial light would throw intense glare on adjacent areas or streets.
B. Sources of artificial illumination, including signs, shall be hooded or shaded in those instances where direct light from high-intensity lamps would result in glare upon surrounding areas or cast excessive light upon any residential use or street. Where necessary, the height or location of light sources shall be modified in order to reduce the impact of light or glare, or to enhance the capability of shielding or screening light sources, and the intensity and/or orientation of light sources shall be modified where necessary to reduce light and glare to tolerable levels.
C. Landscaping shall be the preferred means of screening emission of light and glare to nearby properties, but should be supplemented where necessary by solid or other sight and glare barriers. (Ord. 1416 § 2, 1984)
17.05.120 Recreation.
Protection and expansion of existing open space areas for future generations should be promoted. It is the policy of the city to:
A. Encourage use of planned unit development procedures in order to facilitate the preservation of such areas;
B. Coordinate provisions for city parks, open space, and pedestrian and bicycle trails with recreational facilities in new developments. Such facilities may be provided as a condition to project approval. (Ord. 1416 § 2, 1984)
17.05.140 Transportation.
A. It is the policy of the city to:
1. Approve new streets which are beneficial to the public in consideration of efficiency of circulation, vehicular and pedestrian safety, influence on the amenities and livability of the community and neighborhoods, and economy of the use of the land;
2. Encourage, through land use and platting decisions, directing increased traffic volumes onto streets with sufficient capacity to provide safe and efficient traffic flow or where adequate traffic improvements will be provided in conjunction with the development, require adequate vehicular and pedestrian access to new developments, and minimize pedestrian-vehicular conflict points;
3. Access to properties should be oriented away from properties which are used, zoned or shown on the comprehensive plan less intensively;
4. Approve neighborhood street systems which are designed for a relatively uniform low volume of traffic, and which are designed to minimize through traffic movements and discourage excessive speeds in residential areas, but which also minimize the need for circuitous travel;
5. Facilitate, to the extent possible, maximum efficiency and safety to the through street systems;
6. Encourage shared driveways of properties which are similarly used;
7. Encourage land uses which would generate relatively low volumes of traffic, or complementary peak traffic periods, or would have the potential to increase the use of public transportation systems;
8. In order for the responsible official to review proposals with respect to these policies, plans should be provided for any proposed action (unless waived by the responsible official), showing ingress and egress.
B. Traffic studies may be required by the responsible official, when deemed necessary by the responsible official in order to evaluate the traffic impacts of the proposal. (Ord. 1416 § 2, 1984)
17.05.150 Public services.
It is the policy of the city to encourage and approve development at an intensity which is related to the adequacy of public services. If improvements are inadequate, proposed actions such as rezones to more intense uses should be discouraged. (Ord. 1416 § 2, 1984)
17.05.160 Utilities.
It is the policy of the city that development should be encouraged and approved only where adequate utilities, including water, sewer, power, communications and drainage facilities are available or will be made available in conjunction with the proposal. Provision of utilities shall conform to and reinforce the land use types, patterns and intensities desired by the city. (Ord. 1416 § 2, 1984)
Chapter 17.10
ENVIRONMENTALLY CRITICAL AREAS*Sections:
17.10.010 Purpose.
17.10.015 General provisions.
17.10.020 Applicability.
17.10.030 Definitions.
17.10.040 Permitted uses.
17.10.045 Submittal requirements.
17.10.046 Exemptions allowed.
17.10.047 Exemptions.
17.10.048 Reasonable use exception – Allowed.
17.10.049 Reasonable use application and process.
17.10.050 Wetland delineation and rating system.
17.10.051 Standard wetland buffers.
17.10.052 Alterations to wetlands and buffers – Allowed.
17.10.053 Wetland and buffer alteration criteria.
17.10.054 Wetland and buffer mitigation plan.
17.10.055 Wetland alteration compensation.
17.10.056 Increased wetland buffer width.
17.10.057 Decreased wetland buffer width.
17.10.058 Averaging of wetland buffer widths.
17.10.059 Building setback lines – Wetlands.
17.10.060 Stream – Rating.
17.10.061 Stream buffers.
17.10.062 Stream alteration allowed.
17.10.063 Stream alteration criteria.
17.10.064 Stream mitigation plan.
17.10.065 Culverting.
17.10.066 Increased stream buffer width.
17.10.067 Decreased stream buffer width.
17.10.068 Averaging of stream buffer widths.
17.10.069 Riparian wetland.
17.10.070 Building setback line – Streams.
17.10.080 Fish and wildlife priority habitat.
17.10.081 Wildlife habitat assessment.
17.10.090 Geologically hazardous areas – Identification.
17.10.091 Geologically hazardous areas – Setbacks.
17.10.092 Geologically hazardous areas – Alteration allowed.
17.10.093 Geologically hazardous areas – Alteration conditions.
17.10.094 Geotechnical report content requirements.
17.10.100 Buffer credit.
17.10.110 Low-impact use of buffer – Allowed.
17.10.111 Critical areas signs, monuments and fencing.
17.10.120 Appeals.
17.10.125 Notice, performance securities, bonds, administration.
17.10.130 Unauthorized alterations.
17.10.131 Enforcement, violations and penalties.
17.10.140 Severability.
* Editor’s Note: Ordinance 2598 § 4 specifies that the “regulations included in this ordinance shall take effect March 13th, 2006...”
17.10.010 Purpose.
The purpose of this chapter is to identify critical areas and to supplement the development requirements contained in the Lynnwood Municipal Code by providing for additional controls as required by the Washington State Growth Management Act and other laws. Wetlands, streams, fish and wildlife priority habitat areas, and geologically hazardous areas, as defined in LMC 17.10.030, constitute critical areas that are of special concern to the city of Lynnwood. The standards and mechanisms established in this chapter are intended to protect the functions and values of these environmentally critical features for the public benefit, while providing property owners with reasonable use of their property. By regulating development and alterations to critical areas this chapter seeks to:
A. Protect the public health, safety and welfare by preventing adverse impacts of development;
B. Educate the public as to the long-term importance of environmentally critical areas and the responsibilities of the city to protect and preserve the natural environment for future generations;
C. Effectively manage environmentally critical areas by regulating development within and adjacent to them;
D. Mitigate unavoidable impacts to environmentally critical areas by regulating alterations in and adjacent to critical areas;
E. Protect the city’s critical areas using best available science;
F. Prevent, to the extent practicable, adverse cumulative impacts to the water quality, wetlands, streams, stream corridors and fish and wildlife habitat;
G. Improve streams and watercourses, particularly those associated with Scriber Creek and Swamp Creek to a more natural condition wherever possible, and establish reasonable development incentives to encourage such improvement;
H. Protect the public, and public resources and facilities from injury, loss of life, property damage or financial losses due to flooding, erosion, landslides, soil subsidence or steep slope failure;
I. Alert appraisers, assessors, owners and potential buyers or lessees to the development limitations of environmentally critical areas;
J. Provide the city of Lynnwood with information necessary to approve, condition, or deny public or private development proposals;
K. Provide predictability and consistency to the city of Lynnwood’s development review process; and
L. Implement the policies of the State Environmental Policy Act, the Growth Management Act, and all city functional plans and policies. (Ord. 2598 § 2, 2005)
17.10.015 General provisions.
A. Abrogation and Greater Restriction. It is not intended that this chapter repeal, abrogate or impair any existing regulation, easements, covenants or deed restrictions. However, where this chapter imposes greater restrictions, the provisions of this chapter shall prevail.
B. Interpretation. The provisions of this chapter shall be held to be minimum requirements in their interpretation and application and shall be liberally construed to serve the purposes of this chapter.
C. Rule-Making Authority. The director is authorized to adopt written rules and procedures for the implementation of the provisions of this chapter. (Ord. 2598 § 2, 2005)
17.10.020 Applicability.
This chapter establishes regulations for the protection of properties which contain or are adjacent to environmentally critical areas. Environmentally critical areas include those which meet the definitions and requirements of this chapter. The city may inventory critical areas on maps for reference purposes. All critical areas shall be verified by separate studies to indicate the extent of such areas or sites which are environmentally critical. Development proposals for properties which contain or are adjacent to designated or regulated environmentally critical areas shall comply with the provisions and requirements of this chapter. A permit shall be obtained from the city for any activity which alters or disturbs an environmentally critical area or buffer, including, but not limited to, clearing, grading, draining, filling, dumping of debris, demolition of structures and installation of utilities. Further, a permit shall be obtained from the city for any proposed activity adjacent to a critical area. No boundary line adjustments or development permits including subdivisions, short plats, conditional use permits, rezones or variances shall be granted for any lot which contains or is adjacent to an environmentally critical area until approvals as required by this chapter have been granted by the city. A permit shall be considered valid for two years. The director, upon request by the applicant, may extend the validity of such permit for an additional year. The provisions of this chapter apply to projects proposed by private and public entities. No permit granted pursuant to this chapter shall remove an applicant’s obligation to comply in all respects with the applicable provisions of any other federal, state, or local law or regulation, including but not limited to the acquisition of any other required permit or approval. (Ord. 2622 § 2, 2006; Ord. 2598 § 2, 2005)
17.10.030 Definitions.
Terms used in this chapter shall have the meaning given to them in this chapter, unless where used the context thereof clearly indicates to the contrary. Words and phrases used herein in the past, present or future tense shall include the past, present and future tenses; and phrases used herein in masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders; and words and phrases used herein in the singular or plural shall include the singular and plural; unless the context shall indicate to the contrary.
A. “Adjacent” means within 200 feet of an environmentally critical area, measured from the edge of the environmentally critical area.
“Adjacent wetland” means the entire area of the wetland under consideration and not just the portion within 200 feet of a environmentally critical area.
“Alteration” means any human-induced action which impacts the conditions of a critical area or buffer. Alterations include but are not limited to increasing buffer; decreasing buffer; averaging buffer; grading; filling; dredging; draining; channelizing; cutting of trees; clearing; paving; construction; dumping; and demolition.
“Areas of special flood hazard” means the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year.
B. “Best available science” means current scientific information used in the process to designate, protect, or restore critical areas that is derived from a valid scientific process as defined by WAC 365-195-900 through 365-195-925.
“Buffer” means a designated or regulated area adjacent to an area designated or regulated as a critical area.
C. “City” means the city of Lynnwood.
“Clearing” means the removal of vegetation or other organic plant materials by physical, mechanical, chemical or other means.
“Compensation” means the replacement, enhancement, or creation of an environmentally critical area equivalent in functions, values and area to those being altered or destroyed.
“Creation” means bringing a critical area into existance at a site in which a critical area did not formerly exist.
“Critical areas” means the following areas:
1. Wetlands;
2. Streams;
3. Fish and wildlife priority habitat;
4. Geologically hazardous areas; and
5. Any additional areas defined or established as critical areas under the provisions of the Washington State Growth Management Act or the provisions of this chapter.
D. “Department” means the department of public works.
“Development proposal site” means the legal boundaries of the parcel or parcels of land for which the applicant has applied to the city for development permits.
“Director” means the director of public works and/or the director’s designee.
“Drainage facility” means the system of collecting, conveying, treating, and storing surface and stormwater runoff. Drainage facilities shall include but not be limited to all surface and stormwater runoff conveyance and containment facilities including streams, pipelines, channels, ditches, infiltration facilities, filtration and treatment facilities, retention/detention facilities, and other drainage structures and appurtenances, both natural and manmade.
E. “Enhancement” means an action which increases the functions and values of a critical area or its buffer.
“Erosion hazard areas” means those areas containing soils which, according to the U.S. Soil Conservation Service Soil Survey, have severe to very severe erosion hazard potential.
“Essential habitat” means habitat necessary for the survival of species listed as “threatened” or “endangered” under the Federal Endangered Species Act, species listed as “threatened” or “endangered” by the Washington State Department of Fish and Wildlife, species listed as “candidate” or “species of concern” by the U.S. Fish and Wildlife Service or NOAA Fisheries, and species listed as “sensitive” or “state candidate” by the Washington State Department of Fish and Wildlife.
F. “Functional values” and/or “functions” means the beneficial roles that critical areas and their buffers serve, including but not limited to water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation, groundwater recharge and discharge, erosion control, aesthetic values and recreation.
G. “Geologically hazardous areas” means those areas:
1. Have naturally occurring slopes of 40 percent or more;
2. Other areas which the city has reason to believe are geologically unstable due to factors such as landslide, seismic or erosion hazard.
H. “Hydrologically connected” means a critical area has a surface water connection to another critical area, is within 200 feet of another critical area, or lies within the flood plain of another critical area, and whose hydrology is directly affected by changes in the other critical area.
L. “Legally documented” means any legally recorded document, on file with the county, which designates an area on the site as a critical area or buffer.
“Lot coverage” has the meaning as defined in Chapter 21.02 LMC.
M. “Mitigation” means a negotiated action involving the use of one or more of the following:
1. Avoiding impacts altogether by not taking a certain action or parts of an action;
2. Minimizing impacts by limiting the degree of magnitude of the action and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
3. Rectifying the impact by repairing, rehabilitating or restoring the affected critical area;
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.
“Monitoring” means evaluating the impacts of development on the biological, hydrologic and geologic elements of natural systems and assessing the performance of required mitigation through the collection and analysis of data by various methods for the purposes of understanding and documenting changes in natural ecosystems and features.
N. “Net development area” means the total horizontal area of a project site, less any or all of the following:
1. Areas within a project site which are required to be dedicated for public rights-of-way, or otherwise set aside for roads;
2. Areas required by the city of Lynnwood to be dedicated or reserved as separate tracts, which may include, but not be limited to:
a. Critical areas and their buffers to the extent they are required by this chapter to remain undeveloped;
b. Areas required for stormwater control facilities other than facilities which are completely underground, including but not limited to retention/detention ponds, biofiltration swales and setbacks from such ponds and swales;
c. Regional utility corridors;
d. Other areas, excluding setbacks, required by the city of Lynnwood to remain undeveloped.
O. “Ordinary high water mark” means a mark that has been found where the presence and action of waters are common, usual and maintained in an ordinary year, long enough to create a distinction in character between a water body and the abutting upland.
P. “Person” means an individual, firm, partnership, association or corporation, governmental agency, or political subdivision.
“Priority species” means those species of concern due to their population status and their sensitivity to habitat manipulation. Priority species include those which are listed as “threatened” or “endangered” under the Federal Endangered Species Act, species listed as “threatened” or “endangered” by the Washington State Department of Fish and Wildlife, species listed as “candidate” or “species of concern” by the U.S. Fish and Wildlife Service or NOAA Fisheries, species listed as “sensitive” or “state candidate” by the Washington State Department of Fish and Wildlife, or are designated as such by the Priority Habitat and Species Program of the Washington State Department of Fish and Wildlife.
Q. “Qualified professional” means a qualified scientific expert with expertise appropriate to the relevant critical areas as determined by the person’s professional credentials and/or certifications, or as determined by the director.
R. “Restoration” means actions to return an environmentally critical area to a state in which its stability, functions and values approach its unaltered state as closely as possible.
“Riparian” means the lands adjacent to and functionally related to a river or stream.
S. “Stream” means an area where surface waters flow sufficiently to produce a defined channel or bed. A defined channel or bed is an area which demonstrates clear evidence of the passage of water and includes but is not limited to bedrock channels, gravel beds, sand and silt beds, and defined channel swales. The channel or bed need not contain water year-round. For the purposes of this chapter, streams shall include both natural channels and manmade channels that were constructed to replace a natural stream. This definition is not meant to include irrigation ditches, canals, storm or surface water runoff devices or other entirely artificial watercourses unless they are used by salmonids or used to convey streams naturally occurring prior to construction in such watercourses.
W. “Wetlands” means areas that are inundated or saturated by surface water or ground water at a frequency or duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention ponds and landscape amenities. Wetlands do include those artificial wetlands intentionally created from nonwetland areas to mitigate conversion of wetlands. (Ord. 2622 § 3, 2006; Ord. 2598 § 2, 2005)
17.10.040 Permitted uses.
Uses permitted on properties subject to this chapter shall be the same as those permitted in the zoning district in which the property is located. (Ord. 2598 § 2, 2005)
17.10.045 Submittal requirements.
A. Critical Areas Permit Application Required. Any application for land use, boundary line adjustments or development proposals by private or public entities, including rezones, subdivisions, building permits, clearing and grading permits, tree permits, or other activities which will result in any alteration or modification within or adjacent to an environmentally critical area or its standard buffer width shall include an application for a critical areas permit. The critical areas permit application shall be submitted to the department of public works for processing as required by LMC 2.44.040. The director or the director’s designee shall review the information submitted by the applicant together with any other available information. If the director determines that there is insufficient environmental information to evaluate the proposal, the applicant shall be notified that additional environmental studies are required. The director reserves the right to refuse to accept an incomplete application. The director may waive the requirement for a special study if there is substantial showing that there will be no alteration of the critical area or buffer and that there will be no significant adverse impacts on the critical area as a result of the proposed development.
B. Contents of Special Studies. Special environmental studies shall be prepared by a qualified person with expertise in the area of concern in accordance with the requirements of this chapter and to the satisfaction of the department. Special studies are valid for two years; after such date the city will determine if a revision or additional assesment is necessary. Such studies shall:
1. Rely on the best available science; and
2. Provide a site plan and written report describing the conditions of the property, illustrating the proposed development and the environmentally critical area; and
3. Identify and characterize any critical area and associated buffer on or adjacent to the site. Such characterizations shall comply with the methods described and accepted in this chapter; and
4. Describe how the proposed development will impact the critical area(s) and associated buffer(s) which are present on or which are adjacent to the property; and
5. Describe any plans for alteration or modification of the critical area(s) and associated buffer(s); and
6. A statement of any plans to utilize buffer credit, and provide a detail of the calculations; and
7. A statement of the resources and methodology used in the reporting reflecting the use of “best available science”; and
8. Provide recommended methods for avoiding or mitigating any identified impacts.
C. Previous Critical Area Review. Any development proposals which are proposed to occur on sites that previously underwent critical or sensitive areas review, and have an established and legally documented critical area buffer, or previously underwent critical or sensitive areas review and possess a valid critical or sensitive areas permit issued by a governing municipal agency, shall not be subject to additional critical areas review and requirements, provided:
1. The development proposal would not encroach into the previously established buffer area; and
2. The development proposal will not increase the existing level of impact on the critical area or the buffer. (Ord. 2622 § 4, 2006; Ord. 2598 § 2, 2005)
17.10.046 Exemptions allowed.
Certain activities set forth in LMC 17.10.047 are exempt from the requirements of this chapter. The director may exempt such activities, as well as others, provided:
A. No person shall conduct any activity within or adjacent to any critical area or critical area buffer that is exempt from the provisions of this chapter until such time as such person has given 10 days advance written notice (except for an emergency per LMC 17.10.047(A)) to the director. The notice shall identify the activity to be conducted and the exemption(s) relied upon by the person who intends to conduct such activity; and
B. Such exemptions shall be verified by city staff and acknowledged on the face of the written notice prior to the commencement of the activity; and
C. If absolutely unavoidable, impacts to critical areas and their buffers are minimized; and
D. Impacted areas are immediately restored. (Ord. 2598 § 2, 2005)
17.10.047 Exemptions.
Subject to the conditions and requirements of LMC 17.10.046, the following situations are exempt from the operation of this chapter:
A. Emergency actions necessary to prevent an immediate threat to public health, safety or welfare, or that pose an immediate risk of damage to private or public property, and that require action in a timeframe too short to allow for normal processing of the requirements of this chapter.
After the emergency action is taken, the director shall be notified of these actions within seven days. The director may require the person or agency relying on this exemption to then restore and/or mitigate for any impacts to critical areas and or buffers in accordance with an approved critical areas study and/or mitigation plan.
B. All existing developed areas located within critical areas or their associated buffers have a legal nonconforming status as to use and setback requirements.
C. Existing structures, facilities, landscaping or other improvements that because of their existing location do not meet the setback requirements of this chapter, may be remodeled, reconstructed or replaced, or maintained or repaired, providing that any such activity does not further intrude into a critical area or buffer, increase the building footprint more than 10 percent, or adversely affect critical area functions. Maintenance and repair does not include any modification that increases the amount of impervious surface, and does not include construction of an additional access road. Nothing herein releases the site from compliance with the provisions of LMC Title 21.
D. Normal and routine maintenance of existing drainage ditches, drainage retention/detention facilities, or ornamental landscape ponds; provided, that none of these are part of a critical area mitigation plan required by this chapter.
E. Relocation of electric facilities, lines, equipment, or appurtenances, not including substations, with an associated voltage of 55,000 volts or less, and relocation of natural gas, cable communications, telephone facilities, and water or sewer lines, pipes, mains, equipment or appurtenances, only when required and approved by the city, and subject to the following:
1. No practical alternative location is available; and
2. The applicant demonstrates such construction is necessary for gravity flow (if applicable); and
3. Construction is accomplished using best management practices; and
4. The wetland and buffer environment is protected to the maximum extent possible during construction and maintenance; and
5. The original grade is replaced; and
6. Joint use of a utility corridor by other utilities may be allowed and is strongly encouraged.
F. Installation, construction, replacement, repair, operation or alteration of electric facilities, lines equipment or appurtenances (not including substations) with an associated voltage of 55,000 volts or less in improved city road right-of-way (which may be within or adjacent to a critical area or its buffer).
G. Installation, construction, replacement, repair, operation or alteration of natural gas, cable and telecommunication facilities, water or sewer lines, pipes, mains, equipment or appurtenances in improved City road right-of-way (which may be within or adjacent to a critical area or its buffer).
H. Repair or overlay of improved city road right-of-way, which may be within or adjacent to a critical area or its buffer, so long as it does not further encroach into the critical area or its buffer.
I. Minor site investigation work necessary for land use submittals, such as surveys, delineations, soil logs, percolation tests, and other related activities where such activities do not require construction of new access roads or significant amounts of excavation or vegetation removal. In every case, impacts to critical areas and buffers shall be minimized and disturbed areas shall be immediately restored.
J. Removal of the following non-native vegetation with hand labor from critical areas and buffers provided that appropriate erosion-control measures are used, and the area is revegetated with native vegetation:
1. Himalayan blackberry (Rubus discolor, R. procerus);
2. Evergreen blackberry (R. laciniatus);
3. English ivy (Hedera helix);
4. Japanese knotweed (Polygonum cuspidatum);
5. Any plant identified as noxious on the Washington State Noxious Weed List.
Mechanical equipment may be used for removal of the above listed vegetation, subject to prior director approval.
K. Isolated Category III and IV wetlands under 2,500 square feet which have 80 percent or greater areal cover by invasive species, and have been determined by a qualified professional to be of low function, may be exempted from the requirements of this chapter, provided that action is taken to mitigate for the lost functions. Adequate and appropriate mitigation measures shall be submitted by the applicant, prepared by a qualified professional, subject to the approval of the director, and may include, but is not limited to, stormwater quality and quantity treatment, and/or native landscaping enhancements. Please note that state and federal permits may still apply. (Ord. 2598 § 2, 2005)
17.10.048 Reasonable use exception – Allowed.
If the application of this chapter would deny all reasonable use of the property, development may be allowed which is consistent with the general purpose of the chapter and the public interest, provided:
A. An application for a reasonable use exception containing the elements required in LMC 17.10.049 shall be filed with the department and shall be considered by the hearing examiner at a public hearing under Process I (LMC 1.35.100 through 1.35.180).
B. The hearing examiner must determine that:
1. Application of this chapter would deny all reasonable use of the property; and
2. There is no reasonable use with less impact on the critical area; and
3. The proposed development does not pose an unreasonable threat to the public health, safety or welfare; and
4. Any alteration to the critical areas or buffers must be the minimum necessary to allow for the reasonable use of the property; and
5. Impacts to critical areas and buffers are mitigated consistent with the purpose and standards of this chapter to the greatest extent feasible; and
6. The inability of the applicant to derive reasonable use of the property is not the result of actions of the property owner or some predecessor, which thereby created the condition after March 13, 2006.
C. The burden of proof shall be on the applicant to bring forth substantial evidence in support of the application for the hearing examiner in support of a decision on the application.
D. If the hearing examiner grants a reasonable use exception, the examiner may impose any condition(s) to ensure that the development is consistent with the intent of this chapter. (Ord. 2622 § 5, 2006; Ord. 2598 § 2, 2005)
17.10.049 Reasonable use application and process.
Whenever an applicant requests a reasonable use exception, the applicant shall submit a complete application to the director for review. The applicant is strongly encouraged to schedule a submittal appointment with the department when submitting the application. This meeting will ensure that the applicant has a complete application, containing all of the elements required by this section. The department may refuse to accept an incomplete application.
The director shall prepare a recommendation to the hearing examiner based on review of the submitted information.
The reasonable use application shall include the following information, which will be used to evaluate whether a reasonable use exception shall be allowed:
A. A complete application and special study, as required by LMC 17.10.045; and
B. A mitigation plan specifying the measures taken to mitigate for the impacts; and
C. A map showing the amount of the lot which is within setbacks required by other standards of the zoning code; and
D. An analysis of the impact that the proposed development would have on the environmentally critical area(s) and/or their buffer(s); and
E. A design of the proposal so that the amount of development proposed as “reasonable use” will have the least impact practicable on the environmentally critical area(s); and
F. A description of the design modifications proposed by the applicant in order to minimize impacts on the critical area(s) and buffer(s). This includes, but is not limited to, a description of the modified building footprint, reduced building setback from the buffer, parking modifications, reduced total building square feet, modified location to preserve trees, and any other measures taken by the applicant; and
G. A description of the needed modifications to the standards of all applicable chapters to accommodate the proposed development; and
H. Any other related projects documents, such as permit applications to other agencies, special studies, and environmental documents prepared pusuant to the State Environmental Policy Act; and
I. Such other information as the director or hearing examiner determines is reasonably necessary to evaluate the issue of reasonable economic use as it relates to the proposed development. (Ord. 2622 § 6, 2006; Ord. 2598 § 2, 2005)
17.10.050 Wetland delineation and rating system.
A. Wetlands shall be identified and delineated in accordance with the methodologies detailed in the WAC 173-22-080.
B. Wetland delineations are valid for three years, after such date the city will determine if a revision or additional assessment is necessary.
C. The wetland boundaries established by this process shall be used to meet the requirements of this chapter.
D. The total area of wetlands shall be used for the purpose of classification regardless of whether a proposed development site includes all or only a portion of the wetland.
E. Wetlands shall be categorized using the Department of Ecology’s 2004 Washington State Wetland Rating System for Western Washington. (Ord. 2598 § 2, 2005)
17.10.051 Standard wetland buffers.
Wetland buffer widths will be established using three factors: the wetland category; the intensity of impacts; and the functions or special characteristics of the wetland that need to be protected, as determined through the rating system. The standard buffer widths shall be as follows:
Buffer Width
Category I
110'
Category II
110'
Category III
75'
Category IV
40'
Measures to minimize the impacts of the land use adjacent to the wetlands shall be applied. These measures must be agreed upon by the director, and the maximum number of such measures must be used. Examples of such measures may be found in the Washington Department of Ecology’s manual on protecting and managing wetlands, and/or may be suggested by a qualified professional.
These buffer widths may be increased if the wetland scores highly for habitat. The criteria and distances for such increased buffer widths are identified in LMC 17.10.056.
These buffer widths may be reduced to the decreased buffer widths identified in LMC 17.10.057, but nothing less, under the following conditions:
A. There is a corridor of undisturbed native vegetation at least 100 feet wide between the wetland and any adjacent essential habitat.
B. Measures to minimize the impacts of the land use adjacent to the wetlands are applied. These measures must be agreed upon by the director, and the maximum number of such measures must be used. Examples of such measures may be found in the Washington Department of Ecology’s manual on protecting and managing wetlands, and/or suggested by a qualified professional.
C. Any wetland restored, relocated, replaced or enhanced because of wetland alterations shall not be eligible for decreased buffer widths. (Ord. 2622 § 7, 2006; Ord. 2598 § 2, 2005)
17.10.052 Alterations to wetlands and buffers – Allowed.
Alteration, modification, or enhancement of wetlands and buffers may be allowed by this chapter, subject to the review and approval by the director. The applicant shall submit to the department a plan detailing the alteration, modification and/or enhancement proposal, along with any proposed mitigation. This plan shall be prepared by a qualified professional. The plans shall meet the criteria of LMC 17.10.053, 17.10.054, 17.10.055, 17.10.111, and 17.10.125 (as applicable).
All wetlands and buffers, regardless of category, shall be preserved unless the applicant can demonstrate the following:
A. There is no feasible and reasonable alternative to making the alteration; and
B. Alteration will preserve, improve, or protect the functions of the wetland system; and
C. The mitigation for such alteration has a high probability of success. (Ord. 2598 § 2, 2005)
17.10.053 Wetland and buffer alteration criteria.
A. Alteration Criteria. Wetland and buffer alteration allowed by this chapter shall be subject to the following requirements:
1. Measures to minimize the impacts of the land use adjacent to the wetlands are applied. These measures must be agreed upon by the director, and the maximum number of such measures must be used. Examples of such measures may be found in the Washington Department of Ecology’s manual on protecting and managing wetlands, and/or suggested by a qualified professional; and
2. Each activity or use shall be designed so as to minimize overall wetland and buffer alteration to the greatest extent reasonably possible; and
3. Construction techniques shall be approved by the city prior to any site work; and
4. A mitigation plan shall be approved by the city prior to the issuance of any construction permits; and
5. Relocated wetlands shall be within the same sub-basin (as defined within the city’s comprehensive flood and drainage management plan); and
6. All mitigation work shall be timed prior to or concurrent with the proposed alterations; and
7. When adding to an existing wetland as a result of compensation for wetland losses, the characteristics of the existing wetland shall be maintained.
B. Time for Completion.
1. When alteration is allowed, the city may require that the relocated or compensatory wetland and buffer be completed and functioning prior to allowing the existing wetland to be filled or altered.
2. Mitigation shall be completed prior to granting of temporary or final occupancy, or the completion or final approval of any development activity for which mitigation measures have been required.
3. If the mitigation work is not completed within three years of the city approval of the mitigation plan, the city may require that a reevaluation of the plan be conducted by a qualified wetland professional. The city may require additional requirements based on the recommendations. (Ord. 2622 § 8, 2006; Ord. 2598 § 2, 2005)
17.10.054 Wetland and buffer mitigation plan.
A mitigation plan shall be approved by the city prior to the issuance of any permits for development activity occurring on a lot upon which wetland and/or buffer alteration, reduction, averaging, restoration, creation or enhancement is allowed. The mitigation plan shall:
A. Be prepared by a qualified wetland professional using Washington Department of Ecology accepted methodologies; and
B. Include a baseline study that quantifies the existing functional values; and
C. Specify how functional values will be replaced and when mitigation will occur relative to project construction; and
D. Include provisions for adequate monitoring to ensure success of the mitigation plan. The monitoring plan shall outline the approach for monitoring construction of the mitigation project, and for assessment of the completed project, and shall include a monitoring schedule. A monitoring report shall be submitted annually for a period up to five years to the department unless a more frequent time period is required as a condition of the permit, and shall document successes, problems and contingency actions of the mitigation project. Monitoring activities may include, but are not limited to:
1. Establishing vegetation monitoring plots to track changes in plant species composition and density over time; and
2. Measuring base flow rates and stormwater runoff to model and evaluate hydrologic predictions; and
3. Sampling fish and wildlife populations to determine habitat utilization, species abundance and diversity; and
4. Sampling surface and subsurface waters to determine pollutant loading, and changes from the natural variability of background conditions.
E. Include a contingency plan specifying what corrective actions will be taken should the mitigation not be successful; and
F. Include provisions for an assurance device, which may include a bond, to assure that work is completed in accordance with the mitigation plan, and to assure that restoration or rehabilitation is performed in accordance with the contingency plan if mitigation fails within five years of implementation. (Ord. 2598 § 2, 2005)
17.10.055 Wetland alteration compensation.
As a condition of approving the alteration or relocation of a wetland, the city shall require that an area equal to or larger than the altered portion of the wetland be provided as compensation for wetland impacts, so that there is no net loss of wetlands. All wetlands which are created as mitigation for filling shall be relocated within the same drainage area, as defined by the city’s comprehensive floo