The purpose of this chapter is to establish a means to protect all trees within the town rights-of-way and minimize the loss of existing significant trees due to development within the town boundaries where feasible and provide guidance on removal and replacement where necessary. A significant tree is defined as an evergreen or deciduous tree at least six inches in diameter at a point five feet above ground level. [Ord. 671 § 4.1.A, 1995.]

The following are exempt from the provisions of this chapter:

(1) Trees on residential lots except those in the Historic Preservation District.

(2) Tree removal for installation and maintenance of utilities provided the activity is conducted so as to avoid any unnecessary removal. Written notice of the removal shall be provided to the planning department five days prior to the removal, except that when the removal is needed to restore interrupted service under emergency conditions, no prior notice is required.

(3) Tree removal during emergencies caused by a natural or manmade disaster.

(4) Fruit trees, poplar, locust trees or any tree that has been deemed hazardous by a certified arborist. [Ord. 1096 § 2, 2013; Ord. 1040 § 2, 2010; Ord. 671 § 4.1.B, 1995.]

(1) Authorization shall be granted to remove a tree only if the applicant has taken reasonable measures to design and locate the proposed improvements to preserve as many existing significant trees as possible.

(2) Authorization to remove a significant tree may be granted if the applicant can demonstrate one or more of the following conditions:

(a) A permissible use of the site cannot reasonably be undertaken unless specific trees are removed or relocated.

(b) The tree is located in such proximity to an existing or proposed structure that the safety, utility or structural integrity of the structure is materially impaired.

(c) The tree materially interferes with the location, servicing or functioning of existing utility lines or services.

(d) The tree creates a substantial hazard to motor, bicycle or pedestrian traffic by virtue of physical proximity to traffic or by impairing vision.

(e) The tree is diseased or weakened by age, abuse, storm or fire and is likely to cause injury or damage to people, buildings or other improvements.

(3) The requirements of LCMC 15.60.040 shall apply whenever an authorization to remove a tree pursuant to this section is granted. [Ord. 842 § 11, 2002; Ord. 671 § 4.1.C, 1995.]

Replacement trees shall, where practicable, be planted on site. The number of trees for replacement shall be based on number of diameter inches of the lost trees or appraised value as determined by the formula found in “A Guide for Plant Appraisal,” Eighth Edition, authored by The Council of Tree and Landscape Appraisers. If not practicable, replacement trees may be donated, or a fee in lieu of replacement may be paid, to the town for purposes of planting trees on public property. The fee in lieu of replacement shall be based on the cost of purchasing the requisite size and number of replacement trees. Lombardy poplars are exempt from the replacement formula and shall be replaced with an appropriate urban tree at least two inches in diameter. Exception: If the tree being removed is diseased or an imminent safety risk to people and/or property, the decision authority may consider an alternate replacement plan. [Ord. 986 § 7, 2007; Ord. 963 § 8, 2005; Ord. 671 § 4.1.D, 1995.]

To assure the health and survival of significant trees that are not to be removed, the following kinds of tree injuries should be avoided during development activities:

(1) Mechanical Injuries to Roots, Trunk, and Branches. A protective barrier shall be placed around all protected trees to prevent damage due to equipment or construction materials or debris during construction or landscaping activity. No attachment, wires (other than supportive wires), signs or permits may be fastened to any tree. The protection barrier shall be placed around the tree at a distance from the tree equal to one foot for every one inch diameter. This area is called the Critical Root Zone (CRZ).

(2) Injuries by Chemical Poisoning. No fuel, paint, solvent, oil, thinner, asphalt, cement, grout or any other construction chemical or other materials or tools shall be stored or placed within the protective barrier or perimeter line of protected trees.

(3) Grades shall not be raised or lowered around trees without a review of soil condition and root location. No more than 30 percent of the CRZ should be raised or lowered or disturbed without causing potential loss of health and stability to the tree.

(a) Vegetation that must be removed within the CRZ shall be done by hand only while being careful not to damage tree roots.

(b) Fertilization is not recommended unless soil tests indicate deficiency. Mulch and root growth enhancers are recommended within CRZ during and after construction.

(4) Injuries by Excavations. Water, sewer and other utility lines should be routed around the tree protection zones. If a line cannot reasonably be routed around the tree protection zone, the line shall be tunnelled beneath the area within the zone. The tunnel shall be offset to one side of the trunk to prevent damage to the main tap roots.

(5) Injuries by Paving. Porous paving may be placed within the tree protection zone as long as no damage is inflicted to the tree by grade change, compaction of the soil, or any other cause. Porous paving shall be placed over a sandwich of fabric, porous washed rock, fabric then sand within CRZs of the tree roots to absorb moisture, and maintain critical gas exchange. [Ord. 671 § 4.1.E, 1995.]

To ensure compliance with the foregoing sections, the following measures shall be taken:

(1) The applicant shall provide a scaled drawing of the lot, with elevation contours, showing all trees that must be removed in order to accommodate the foundation or accessory structures with a justification defined in LCMC 15.60.030.

(2) The planning director, or assistant, shall visit the site and personally band the significant trees that have been approved for removal.

(3) Prior to excavation or removal of any trees, the lot owner shall notify the planning director in no less than three working days. The planning director will inspect the premises to ensure that the protective barrier has been installed. The planning director will document by initials and date on the tree removal permit noting satisfactory protection.

(4) Failure to observe the protective barrier shall subject the lot owner to a fine per LCMC 15.135.330.

(5) In the event of any violation of the tree permit, the planning director shall, as a minimum, issue a stop work order. After meeting with the lot owner, the planning director will calculate the fines, if any, which must be paid in full prior to lifting the stop work order. Such fines are in addition to replacement requirements in LCMC 15.60.040 and shall be an additional $500.00 per incidence. [Ord. 963 § 8, 2005.]

Code reviser’s note: Ord. 986 amended this section without taking the amendments of Ord. 963 into account. At the city’s direction, the language added by Ord. 963 has been restored to the code text.

The environmentally sensitive area overlay district is a mechanism by which the town of La Conner recognizes the existence of natural conditions which affect the use and development of property. It imposes special regulations on that property in order to protect and preclude development on the lands classified as critical areas. The regulations are to protect environmentally sensitive areas as well as the public health, safety and welfare; to prevent any net loss of individual wetlands by requiring those activities not dependent upon a wetland location to be located on upland sites; and to prevent any threat to public health and safety associated with unstable and steep slopes and to prevent encroachment on any adjacent agricultural lands of long-term significance. [Ord. 671 § 4.2.A, 1995.]

This code applies to activities on all lands which have been identified and classified as critical areas pursuant to the comprehensive plan and designated on the Environmentally Sensitive Areas Map (see Appendix B)* as follows:

(1) Nontidal Wetlands. Known nontidal wetlands are designated on the Environmentally Sensitive Areas Map adopted by the town of La Conner on October 25, 2005. Provisions of this chapter apply to all nontidal wetlands, which have been determined by a wetland delineation and rated per current Department of Ecology guidelines regardless of map designation.

(2) Geologically Hazardous Areas. All lands where slopes that average 15 percent or greater over a vertical interval of 10 feet and unstable slopes.

(3) Lands Adjacent to Agricultural Lands. All lands inside town boundaries that are within 25 feet of agricultural resource lands. There are no agricultural lands within the town of La Conner. [Ord. 968 § 2, 2006; Ord. 671 § 4.2.B, 1995.]

*Code Reviser’s Note: Appendix B to Ord. 671 is on file in the clerk’s office.

The following uses shall be allowed as a right within a nontidal wetland to the extent that they are not prohibited by any other ordinance or law and provided they do not require structures, grading, fill, draining, or dredging:

(1) Outdoor recreational activities;

(2) Education, scientific research, and nature trails;

(3) Uses by right that do not require a special permit and that may involve filling, flooding, draining, dredging, ditching, or excavating to the extent specifically provided below upon written approval of the planning director:

(a) Maintenance or repair of lawfully located roads or structures and of facilities used in the service of the public to provide transportation, electric, gas, water, telephone, telegraph, telecommunication, or other services; provided, that such roads, structures, or facilities are not materially changed or enlarged and written notice prior to the commencement of work has been given to the planning director; and provided, that the work is conducted using best management practices to ensure that flow and circulation patterns, and chemical and biological characteristics of the wetland, are not impaired and that any adverse effect on the aquatic environment will be minimized. [Ord. 671 § 4.2.C, 1995.]

(1) Nontidal Wetlands. Regulated activities in or within the required buffer of a nontidal wetland.

(2) Geologically Hazardous Areas. Construction activities, including clearing or grading, in or adjacent to a regulated slope. [Ord. 968 § 2, 2006; Ord. 931 § 1, 2004; Ord. 671 § 4.2.D, 1995.]

Applications for land uses or developments proposed within critical or environmentally sensitive areas shall meet the following requirements:

(1) Application for a permit to conduct a regulated activity shall be made to the planning department on forms furnished by the town. Permits shall be valid for a period not to exceed three years from the date of issue unless a time period is specified by the planning director. A permit may be renewed for one year.

(2) Site, Adjacent Site, Surrounding Area and Drainage Basin. Detailed analysis of impacts of development upon nontidal wetlands, native vegetation and wildlife habitat, water quality, slope and soil conditions, and surface water drainage may be required at the request of the planning director when site area conditions as shown on the environmentally sensitive area overlay warrant such analysis. Supplemental technical reports may be required by the planning director to specify measures to preserve, protect, and maintain site, adjacent site, surrounding areas and drainage basin and ensure safe, stable, and compatible development. [Ord. 671 § 4.2.E, 1995.]

All activities that are not permitted as a right or by permit shall be prohibited. All projects shall be fully bonded against any claim of damage against adjacent properties, including the town, prior to any wetland or slope work being undertaken if bonding is a condition of the permit. [Ord. 671 § 4.2.F, 1995.]

(1) The applicant shall submit a wetland delineation, rating report, survey report, and a scaled drawing of the area as part of the permit application. Nontidal wetland delineations shall be in accordance with RCW 36.70A.175 requiring the delineation to be according to the Ecology manual, Washington State Wetland Identification and Delineation Manual (Ecology publication No. 96-94, March 1997) or subsequent versions. The rating shall be done in accordance with Ecology’s Washington State Rating System for Western Washington (2004) or subsequent versions. Evidence documenting the results of the boundary survey and wetland rating shall be submitted to the planning director.

(2) The planning department may undertake the wetland delineation if requested by the applicant and at applicant cost. Authorized manuals and methods, such as remote sensing, hydrology, soils, plant species, and other data, consultations with biologists, hydrologists, soil scientists, or other experts may be used as needed to perform the delineation. The applicant will be charged direct costs of all work and consultants.

(3) Where the planning department performs a wetland area delineation at the request of the applicant, it shall be considered a final determination.

(4) Where the applicant has provided a wetland determination the planning department shall verify the accuracy of, and may require adjustments to, the boundary delineation. In the event the adjusted boundary delineation is contested by the applicant, the planning department shall, at the applicant’s expense obtain competent expert services to render a final delineation.

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

(a) For wetlands that score 6 or more for habitat function, the buffers in Table 1 can be used if both the following criteria are met:

(i) A relatively undisturbed, vegetated corridor at least 100 feet wide is protected between the wetland and any other priority habitats as defined by the Washington State Department of Fish and Wildlife (WDFW). The latest definitions of priority habitats and their locations can be found on the WDFW Priority Habitat and Species List (2008: updated 2023) and the WDFD Priority Habitat and Species (PHS) Map on the web.

The corridor must be protected for the entire distance between the wetland and the priority habitat by some type of legal protection such as a conservation easement.

Presence or absence of a nearby habitat must be confirmed by a qualified biologist. If no option for providing a corridor is available, Table 1 may be used with the required measures in Table 2 alone.

(ii) All of the measures in Table 2 are implemented, where applicable, to minimize the impacts of adjacent land uses.

(b) For wetlands that score 3 to 5 habitat points, only the measures in Table 2 are required for the use of Table 1.

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

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

[Ord. 1261 § 2, 2025; Ord. 1222 § 2, 2023; Ord. 968 § 2, 2006; Ord. 671 § 4.2.G.1, 1995.]

(1) All development activities within areas identified as fish and wildlife habitat conservation areas must comply with the provisions of the Puget Sound Biological Opinion. This includes but is not limited to the establishment of buffers, mitigation of critical habitat impacts, and restoration of habitat functions, to ensure the ecological integrity of these areas are maintained or enhanced.

(a) Fish and wildlife habitat conservation areas (FWHCA) do not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company.

(2) “Priority habitats” are defined as habitat types or elements with unique or significant value to a large number of species. An area identified and mapped as priority habitat has one or more of the following attributes:

• Comparatively high fish and wildlife density.

• Comparatively high fish and wildlife species diversity.

• Important fish and wildlife breeding habitat.

• Important fish and wildlife seasonal ranges.

• Important fish and wildlife movement corridors.

• Limited availability.

• High vulnerability to habitat alteration.

• Unique or dependent species.

(a) The city shall consult with NMFS for any projects that may affect priority habitats or endangered species. This consultation may include the issuance of a biological assessment and a determination of potential effects on species listed in the biological opinion.

(b) If the proposed development poses a risk to endangered species or their habitat, mitigation measures may include habitat restoration, creation of new riparian buffers, and funding for conservation projects. [Ord. 1261 § 2, 2025.]

(1) Development shall be prohibited, restricted, or otherwise controlled in areas designated or adjacent to “known or potential risk.” The applicant shall provide evidence that the proposal would be structurally safe and out of the potential danger of any other surrounding development which may pose such risk to public health and safety in the designated hazardous area. The minimum requirement shall be a report submitted by a licensed engineer of the town’s choice. The applicant shall submit any other information deemed necessary to allow the planning director, with the aid of the director of public works and director of wastewater management, to make an informed recommendation to the town council as to whether the proposed project should be granted.

(2) The planning director may require a buffer from the top or toe of a slope based on (a) geological and hydrological site constraints, and (b) the impacts of proposed construction methods on the stability of the slope, increased erosion potential, and disruption of existing topography and vegetation. No removal of native vegetation or wildlife habitat shall be permitted within the protected slope and buffer without prior approval of the planning director and approved replacement vegetation.

(3) Disturbed areas due to development activities shall be revegetated to promote drainage control and prevent erosion after construction. In cases where erosion potential is severe, the planning director may require a revegetation. Revegetation shall consist of trees, shrubs, and ground cover suitable for the location and which does not require permanent irrigation systems for long-term survival.

(4) When development is proposed on known and potential slide areas or slopes 40 percent or greater, the planning director may restrict development coverage and construction activity areas to the most level, environmentally suitable and naturally stable portion of the site. Grading shall be strictly limited to areas as determined by the planning director. The planning director may consult with other engineering consultants, the cost of which shall be borne by the applicant.

(5) All drainage associated with the development shall be connected to town approved drainage control systems. The on-site drainage system shall be designed for a 25-year storm occurrence (2.7 inches in 24 hours).

(6) The planning director may require additional construction practices and methods including, but not limited to, best management practices and limitations on construction equipment permitted on the site to protect critical areas on-site, on adjacent sites, and within the drainage basin. [Ord. 671 § 4.2.G.2, 1995.]

All activities or uses adjacent to lands classified as agricultural lands of long-term significance shall be regulated in accordance with this code. [Ord. 671 § 4.2.G.3, 1995.]

Article II. Permit Application Requirements

At the time of an application or request for determination, the applicant shall pay a filing fee sufficient to cover the costs of evaluation of the application as specified by the town council. These fees may be used to retain expert consultants to provide services pertaining to wetland boundary determinations, slope stability functional assessments, and evaluation of mitigation measures for either wetlands or potentially unstable slopes, when the planning department deems that the information provided by the applicant is insufficient or needs further evaluation or analysis. Further, the applicant shall, before any permit is issued, reimburse the town for its expenses to evaluate or analyze the application or its supporting documentation. The town council may assess additional fees as needed to monitor and evaluate permit compliance and mitigation measures. [Ord. 671 § 4.2.H.1, 1995.]

The planning director shall be responsible for the administration of this code as follows:

(1) Reviewing all permit applications for compliance with this code. If the planning director, with the concurrence of the town council, finds the proposed activity is so minor that no environmentally sensitive area is affected, a permit may be issued without a public hearing.

(2) Coordinating the permitting process with other programs or agencies having jurisdiction over the proposed activity to provide concurrent and minimal processing time.

(3) Publishing notices of public hearing on applications for development having a significant effect on environmentally sensitive areas. Notice of public hearing shall be published at least twice for two consecutive weeks in the legal newspaper of the town of La Conner. A copy of the notice shall be mailed to all property owners within 300 feet of the proposal.

(4) The hearing examiner or planning director will review the application and/or schedule a public hearing for the permit request no earlier than 10 days following publication and notices to property owners and at least 60 days after receipt of the permit application.

(5) The hearing examiner decision shall be final and may only be appealed to the superior court of Skagit County within 21 days of the date of the mailing of the decision. A planning director decision may be appealed to the hearing examiner per procedures in LCMC 15.12.130, Appeal of administrative decision. [Ord. 968 § 2, 2006; Ord. 671 § 4.2.H.2, 1995.]

(1) Application for a special permit for a regulated nontidal wetland activity shall include, but not be limited to, the following, unless waived with written justification by the planning department:

(a) The purpose of the project and an explanation of why the proposed activity requires a wetland location or access to wetlands, or cannot be located at other sites.

(b) A site plan drawn to an appropriate scale showing the wetland area boundary and the nontidal wetland boundary under consideration as determined by field survey; the width, depth, and length of all existing and proposed structures, roads, watercourses, and drainageways; water, wastewater, and storm water facilities; utility installations within 200 feet of a nontidal wetland; and the relationship of the proposed activity and any potentially affected nontidal wetland to the entire parcel of land owned by the applicant.

(c) A description of the wetland or wetlands that will be affected by the regulated activity, including a sketch of the entire wetland drawn to a scale appropriate to delineate all significant or affected features, the area that may be filled or impacted; vegetation type; wetland water sources; and a general characterization of the habitat, wildlife, and common plants.

(d) Soil types on the site and the exact locations and specifications for all proposed draining, filling, grading, dredging, and vegetation removal, including the amounts and methods.

(e) Adjacent land use.

(f) Elevations of the site and adjacent lands within 200 feet of the site at contour intervals of no greater than five feet.

(2) The planning director may require additional information, including, but not limited to, documentation and evidence of a wetland boundary determination by field survey; an assessment of wetland functional characteristics; documentation of the ecological, aesthetic, economic, or other values of a wetland, a study of flood, erosion, or other hazards at the site; evidence of any protective measures that might be taken to reduce such hazards; and any other information deemed necessary to verify compliance with the provisions of this code or to evaluate the proposed use in terms of the purposes of this code.

(3) Any person who wants to know whether a proposed activity or an area is subject to this code may request in writing a determination from the planning department. Such a request for determination shall contain plans, data, and other information as may be specified by the planning department.

(4) Upon receipt of the completed application, the planning department shall notify the individuals and agencies, including federal and state agencies having jurisdiction over or an interest in the matter to provide such individuals and agencies an opportunity to comment.

(5) The town, after according consideration to the comments of the general public, other affected municipalities and counties, and federal and state agencies with jurisdiction over the area in question, shall issue a nontidal wetland permit only if it is found that the regulated activity is determined to be in the public interest in accordance with those standards listed below and that the applicant has demonstrated by a preponderance of evidence that the regulated activity:

(a) Is water-dependent or requires access to the nontidal wetland as a central element of its basic function, or is not water-dependent but has no practical alternative.

(b) Will result in minimum feasible alteration or impairment to the nontidal wetland’s functional characteristics and its existing contour, vegetation, fish and wildlife resources, and hydrological conditions.

(c) Will not jeopardize areas with which anadromous fish, endangered, threatened or sensitive species have a primary association and/or their habitat such as those designated and mapped by the Washington State Department of Fish and Wildlife, Priority Habitats and Species Program.

(d) Will not cause significant degradation of ground water or surface water quality.

(e) Complies with all applicable state, local, and federal laws, including those related to sediment control, pollution control, floodplain zoning, and on-site wastewater and storm water disposal.

(f) Will provide a nontidal wetland buffer area of not less than 25 feet between the nontidal wetland and upland activities for those portions of a regulated activity that need not be conducted in the wetland. Additional buffer requirements may be required in accordance with the Department of Ecology’s “Wetlands in Washington State – Volume 2: Guidance for Protecting and Managing Wetlands (2005), Appendix 8-C, Buffer Alternative 3.”

(g) Complies with other standards contained in this code, including those pertaining to nontidal wetland creation and restoration as required for mitigation.

(h) Additional buffer requirements may be required in accordance with the Department of Ecology’s “Wetlands in Washington State – Volume 2: Guidance for Protecting and Managing Wetlands (2005), Appendix 8-C, Buffer Alternative 3.” [Ord. 1261 § 2, 2025; Ord. 968 § 2, 2006; Ord. 671 § 4.2.H.3, 1995.]

(1) A description of how the proposed development and its associated grading plan will or will not impact each of the following on the subject property and adjoining properties:

(a) Slope stability, erosion, and landslide hazard;

(b) Drainage surface and subsurface hydrology, and water quality;

(c) Existing vegetation as it relates to wetlands, regulated slopes and soil stability.

(2) A geotechnical report by a certified engineer.

(3) Recommended methods for mitigating identified impacts and a description of how these mitigating measures may impact adjacent properties shall be required.

(4) The town may retain consultants at the applicant’s expense to assist the town’s review of applications and studies outside the range of the staff expertise. [Ord. 671 § 4.2.H.4, 1995.]

(1) The hearing examiner or planning director shall attach such conditions to the granting of a special use permit as deemed necessary to carry out the purposes of this code. Such conditions may include but are not limited to:

(a) Limitations on minimum lot size for any regulated activity;

(b) Requirements that structures be elevated on piles and otherwise protected against natural hazards;

(c) Modification of waste disposal and water supply facilities;

(d) Imposition of operational control, sureties, and deed restrictions concerning future use and subdivision of lands, such as flood warnings, preservation of undeveloped areas in open space use, and limitation of vegetation removal;

(e) Dedication of easements to protect wetlands;

(f) Establishment of vegetated buffer zones separating and protecting the nontidal wetland from proposed activities in accordance with the Department of Ecology’s “Wetlands in Washington State – Volume 2: Guidance for Protecting and Managing Wetlands (2005)”;

(g) Erosion control and storm water management measures;

(h) Setbacks for structures and restrictions on fill, deposit of soil, and other activities in the nontidal wetland;

(i) Modification in project design to ensure continued water supply to the nontidal wetland and circulation of water;

(j) Creation or restoration of an area of nontidal wetland;

(k) Development of a plan to guide actions involving the creation of a new wetland or the restoration of a damaged or degraded wetland;

(l) Other mitigation actions as determined to be needed.

(2) A qualified expert may determine that, based on unique features of the particular critical area or of the proposed development, additional mitigation measures are necessary to adequately protect the function of the critical area or to prevent risk of a hazard. Such additional mitigation measures may be imposed provided the additional mitigation is based on best available science.

(3) If the applicant proposes to change the critical area or its required condition, then the applicant shall demonstrate, based on best available science, why the proposed condition is sufficient to provide equal or better protection of the critical area function or provide no increased risk of a hazard from the critical area. [Ord. 1261 § 2, 2025; Ord. 968 § 2, 2006; Ord. 671 § 4.2.H.5, 1995.]

If the application of this chapter would result in denial of reasonable and economically viable use of a property, then a landowner may seek a reasonable use exception from the standards of this chapter. Reasonable use exceptions shall only apply to legal lots of record established prior to the effective date of this chapter. Reasonable use exceptions are not variances. Reasonable use exceptions are intended as a “last resort” when no plan for mitigation can meet the requirements of this chapter and allow the applicant a reasonable economically viable use of their property. Reasonable use exceptions may only be granted under the following conditions:

(1) The application of this chapter would deny all reasonable and economically viable use of the property and there is no reasonable and economically viable use with a lesser impact on the critical area than the use proposed; and

(2) The proposed development does not pose a threat to the public health and safety; and any proposed modification to a critical area will be evaluated through consideration of a site assessment and mitigation plan prepared by the applicant’s qualified consultant pursuant to the requirements of this chapter, and will be the minimum necessary to allow reasonable and economically viable use of the property; and

(3) Reasonable use determinations may be issued with conditions of approval, including modifications to the size and placement of structures and facilities to minimize impacts to critical areas and associated buffers. Mitigation requirements may also be imposed to ensure that all impacts are mitigated to the maximum extent feasible. [Ord. 1261 § 2, 2025.]

Article III. Mitigation

As a condition of a permit issued or as an enforcement action under this code, the town may require that the applicant engage in the restoration or creation of nontidal wetlands in order to ensure no net loss in nontidal wetlands resulting from an applicant’s or violator’s actions. In making a determination of whether such a requirement will be imposed, and, if so, the degree to which it would be required, the planning director will consider the following:

(1) The long and short term effects of the action upon the nontidal wetland and associated aquatic ecosystem, and the reversible or irreversible nature of the impairment or loss.

(2) The type and benefit of the wetland functions and associated resources lost.

(3) The type, size, and location of the wetland altered, and the effect it may have upon the remaining system or watershed of which the wetland is a part. Mitigation ratios may be established in accordance with the Department of Ecology’s “Wetlands in Washington State – Volume 2: Guidance for Protecting and Managing Wetlands (2005)” or subsequent versions.

(4) Observed or predicted trends with regard to the gains or losses of this type of wetland in the watershed, in light of natural and human processes.

(5) The cost and likely success of the possible compensation measures in relation to the magnitude of the proposed project or violation.

(6) The degree to which the applicant has demonstrated a good faith effort to incorporate measures to minimize and avoid wetland impacts within the proposed project.

(7) If wetland restoration or creation is required by the town, the applicant or violator shall develop a nontidal wetland restoration or creation plan for review and approval of the planning director with the aid of consultants if deemed necessary. The creation or restoration of wetlands shall not be an alternative to the requirements set forth in Article II of this chapter but shall be used only to compensate for unavoidable losses.

(8) The plan should state the location, by metes and bounds description, of the proposed site; ownership; size, type, and complete ecological assessment (flora, fauna, hydrology, wetland functions, etc.) of the wetland being restored or the area where a new wetland will be created; and the natural suitability of the proposed site for establishing the replacement wetland (i.e., water source and drainage patterns, topographic position, wildlife habitat opportunities, value of the existing area to be converted, etc.). In addition, plan view and cross-sectional, scaled drawings; topographic survey data, including slope percentage and final grade elevations; and other technical information are required in sufficient detail to explain, illustrate, and provide for:

(a) Soil and substrate conditions; topographic elevations; grading and excavation; erosion and sediment control needed for wetland construction and long-term survival.

(b) Planting plans specifying plant species types, quantities, locations, size, spacing, or density; source of plant materials, propagules, or seeds; timing, season, water, and nutrient requirements for planting; and, where appropriate, measures to protect plants from predation.

(c) Water quality parameters, water source, water depths, water control structures, and water level maintenance practices needed to achieve the necessary ambient water conditions and hydrocycle/hydroperiod characteristics.

(d) Midcourse corrections and a three-year monitoring and replacement plan establishing responsibility for removal of exotic and nuisance vegetation and permanent establishment of the wetland system and all its component parts.

(e) A demonstration of fiscal, administrative, and technical competence of sufficient standing to successfully execute the overall project.

(f) Conduct a minimum five-year monitoring period for wetland compensatory mitigation projects and 10 years when woody vegetation (trees or shrubs) are part of the plan. [Ord. 1261 § 2, 2025; Ord. 968 § 2, 2006; Ord. 671 § 4.2.I.1, 1995.]

The town shall require the implementation of recommendations in the hydro-geotechnical reports received for the proposal to mitigate identified impacts. Additionally, the town may require:

(1) That the applicant provide an environmentally sensitive area protection easement.

(2) The applicant’s professional engineer be present on site during all clearing, grading, and filling activities.

(3) Trees and ground cover be retained and additional vegetation be added.

(4) All structures be set back an appropriate distance from the top of a regulated slope.

(5) All structures and excavations be set back from the toe of a slope the distance necessary to protect such structure from landslide hazard based upon hydro-geotechnical analysis. [Ord. 671 § 4.2.I.2, 1995.]

Article IV. Exceptions, Bonding, Restrictions, Emergency Permits

The planning director may modify the application requirements when specific submittal requirements are deemed unnecessary, and/or upon the following:

(1) An emergency that threatens the public health, safety, and welfare.

(2) Remodeling of structures in existence on the date of this code. If damage is done due to an act of nature or fire, reconstruction may be done within one year of damage.

(3) When applicant demonstrates to the satisfaction of the planning director through site surveys, topography maps, technical environmental analysis, and other means as determined necessary by the planning director that the site is not a critical area as defined in this code. [Ord. 968 § 2, 2006; Ord. 671 § 4.2.J, 1995.]

The planning department shall require a bond in an amount and with surety and conditions sufficient to secure compliance with the conditions and limitations set forth in the permit. The particular amount and the conditions of the bond shall be consistent with the purposes of this code. In the event of a breach of any condition of any such bond, the planning department may institute an action in a court of competent jurisdiction upon such bond and prosecute the same to judgment and execution. [Ord. 671 § 4.2.K, 1995.]

This code establishes minimum standards which are to be applied to specific land use actions in order to prevent further degradation of critical areas within the town of La Conner, and is not intended to limit the application of the State Environmental Policy Act (SEPA). Projects under SEPA shall be reviewed and may also be conditioned or denied pursuant to Ordinance No. 524 (Chapter 13.10 LCMC), an ordinance adopting the State Environmental Policy Act. It is not intended that this code repeal, abrogate, or impair any existing regulations, easements, covenants, or deed restrictions. However, where this code imposes greater restrictions, the provisions of this code shall prevail. [Ord. 671 § 4.2.L, 1995.]

Notwithstanding the provisions of this code or any other law to the contrary, the planning department may issue a temporary special use permit through oral or written authorization, provided a written permit is accomplished within three working days, if it deems that an unacceptable threat to life or severe loss of property will occur if an emergency permit is not granted. The emergency permit may be terminated at any time without process upon a determination by the planning department that the action was not or is no longer necessary to protect human health or the environment. The planning department may, within 90 days of the emergency permit, require that the action be reconsidered as an after-the-fact permit, subject to any or all of the terms and provisions of this code. [Ord. 671 § 4.2.M, 1995.]

Enforcement procedures as set forth in LCMC 15.135.290 through 15.135.480 shall apply. [Ord. 671 § 4.2.N, 1995.]

It is the purpose of this chapter to promote the public health, safety, and general welfare, and to minimize public and private losses due to flood conditions in specific areas by provisions designed to:

(1) Protect human life and health;

(2) Minimize expenditure of public money and costly flood control projects;

(3) Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;

(4) Minimize prolonged business interruptions;

(5) Minimize damage to public facilities and utilities such as water and gas mains, electric telephone and sewer lines, streets, and bridges located in areas of special flood hazard;

(6) Help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future flood blight areas;

(7) Ensure that potential buyers are notified that property is in an area of special flood hazard;

(8) Ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. [Ord. 671 § 4.3.A, 1995.]

(l) The flood hazard areas of the town of La Conner are subject to periodic inundation which results in loss of life and property, health, and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.

(2) These flood losses are caused by the cumulative effect of obstructions in areas of special flood hazards which increase flood heights and velocities, and when inadequately anchored, damage uses in other areas. Uses that are inadequately floodproofed, elevated, or otherwise protected from flood damage also contribute to the flood loss. [Ord. 671 § 4.3.B, 1995.]

In order to accomplish its purpose, this chapter includes methods and provisions for:

(1) Restricting or prohibiting uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities.

(2) Requiring that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction.

(3) Controlling the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel flood waters.

(4) Controlling filling, grading, and other development which may increase flood damage.

(5) Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or may increase flood hazards in other areas.

(6) Considering the implications of sea level rises when acting upon proposals within floodplain areas. [Ord. 1211 § 2(A), 2022; Ord. 671 § 4.3.C, 1995.]

(1) This chapter shall apply to all areas of special flood hazards within the jurisdiction of the town of La Conner.

(2) Review all development permits to determine that all necessary permits have been obtained from those federal, state and local government agencies from which approval is required.

(3) Basis for Establishing the Areas of Special Flood Hazard. The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled “The Flood Insurance Study for the Town of La Conner,” dated June 18, 1984, and any revisions thereto, with accompanying Flood Insurance Rate Maps, is hereby adopted by reference and declared to be a part of this code. The Flood Insurance Study and Rate Maps are on file at La Conner Town Hall. The Rate Map shows two reference markers based on the National Geodetic Vertical Datum (NVGD). [Ord. 962 § 2, 2005; Ord. 671 § 4.3.D, 1995.]

In the interpretation and application of this chapter, all provisions shall be:

(1) Considered as minimum requirements;

(2) Liberally construed in favor of the governing body;

(3) Deemed neither to limit nor repeal any other powers granted under state statutes. [Ord. 671 § 4.3.E, 1995.]

The degree of flood protection required by this code is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by manmade or natural causes. This code does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This code shall not create liability on the part of the town of La Conner, any officer or employee thereof, or the Federal Insurance Administration, for any flood damages that result from reliance on this code or any administrative decision lawfully made hereunder. [Ord. 671 § 4.3.F, 1995.]

A development permit shall be obtained before construction or development begins within any area of special flood hazard established in LCMC 15.70.040(3). The permit shall be for all structures and work in the floodplain including, but not limited to:

(1) Construction of new residential and nonresidential structures, including additions to structures constructed after December 18, 1984;

(2) Substantial improvements are improvements to any residential or nonresidential structure, the cost of which exceeds 50 percent of the market value of the existing structure either:

(a) Before the improvement or repair is started; or

(b) If the structure has been damaged and is being restored, before the damage occurred;

(3) Substantial improvement does not include either:

(a) Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or

(b) Any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places;

(4) Accessory structures over 120 square feet;

(5) Any fill;

(6) Grading;

(7) Paving;

(8) Excavation;

(9) Drilling operations;

(10) Underground improvements, including culverts and storm water drains, electrical, gas, and sewer lines. [Ord. 986 § 4, 2007; Ord. 962 § 2, 2005; Ord. 671 § 4.3.G, 1995.]

When base flood elevation data has not been provided in accordance with LCMC 15.70.040(3), Basis for Establishing the Areas of Special Flood Hazard, the planning director shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, in order to administer the provisions of specific standards. [Ord. 671 § 4.3.H, 1995.]

(1) Where base flood elevation data is provided through the Flood Insurance Study or as required in LCMC 15.70.080, the planning director shall obtain and record the actual (as-built) elevation (in relation to mean sea level) of the lowest floor, including basement, of all new or substantially improved structures, and whether or not the structure contains a basement.

(2) For all new or substantially improved floodproofed structures:

(a) Verify and record the actual elevation to which it has been floodproofed (in relation to mean sea level);

(b) Maintain the floodproofing certifications required for permit.

(3) The planning director shall maintain for public inspection all records pertaining to the provisions of this chapter.

(4) Alteration of Watercourses.

(a) Notify adjacent communities and the Department of Ecology prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Insurance Administration.

(b) Require that maintenance is provided within the altered or relocated portion of said watercourse so that the flood carrying capacity is not diminished. [Ord. 962 § 2, 2005; Ord. 671 § 4.3.I, 1995.]

The planning director shall make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation by applying for a variance. [Ord. 671 § 4.3.J, 1995.]

(1) The hearing examiner as established by the town of La Conner shall hear and decide appeals and requests for variances from the requirements of this chapter.

(2) The hearing examiner shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the planning director in the enforcement or administration of this code. The decision of the hearing examiner shall be final.

(3) In passing upon such applications, the hearing examiner shall consider all technical evaluations, all relevant factors, standards specified in other sections of this code, and:

(a) The danger that materials may be swept onto other lands to the injury of others;

(b) The danger to life and property due to flooding or erosion damage;

(c) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

(d) The importance of the services provided by the proposed facility to the community;

(e) The necessity to the facility of a waterfront location, where applicable;

(f) The availability of alternative locations for the proposed use which are not subject to flooding or erosion damage;

(g) The compatibility of the proposed use with existing and anticipated development;

(h) The relationship of the proposed use to the comprehensive plan and floodplain management program for that area;

(i) The safety of access to the property in times of flood for ordinary and emergency vehicles;

(j) The expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site;

(k) The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges.

(4) Upon consideration of the factors of items (3)(a) through (3)(k) of this section and the purposes of this code, the hearing examiner may attach such conditions to the granting of variances as it deems necessary to further the purposes of this code.

(5) The planning director shall maintain the records of all appeal actions and report any variances to the Federal Insurance Administration upon request.

(6) Generally, the only condition under which a variance from the elevation standard may be issued is for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, providing items (3)(a) through (3)(k) of this section have been fully considered. As the lot size increases the technical justification required for issuing the variance increases.

(7) Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in this chapter.

(8) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(9) Variances shall only be issued upon:

(a) A showing of good and sufficient cause;

(b) A determination that failure to grant the variance would result in exceptional hardship to the applicant;

(c) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public as identified in items (3)(a) through (3)(k) of this section, or conflict with existing local laws or ordinances.

(10) Variances as interpreted in the National Flood Insurance Program are based on the general zoning law principle that they pertain to a physical piece of property; they are not personal in nature and do not pertain to the structure, its inhabitants, economic or financial circumstances. They primarily address small lots in densely populated residential neighborhoods. As such, variances from the flood elevations should be quite rare.

(11) Variances may be issued for nonresidential buildings in very limited circumstances to allow a lesser degree of floodproofing than watertight or dry-floodproofing, where it can be determined that such action will have low damage potential, complies with all other variance criteria except subsection (1) of this section and otherwise complies with the provisions anchoring and construction materials and methods outlined in general standards, LCMC 15.70.120.

(12) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. [Ord. 898 § 3, 2003; Ord. 671 § 4.3.K, 1995.]

In all areas of special flood hazards, the following standards are required:

(1) Anchoring.

(a) All new construction and substantial improvements shall be anchored to prevent flotation, collapse, or lateral movement of the structure.

(b) All manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors (reference FEMA’s “Manufactured Home Installation in Flood Hazard Areas” guidebook for additional techniques).

(2) Construction Materials and Methods.

(a) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

(b) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

(c) Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

(d) Crawlspaces and Basements.

(i) The interior grade of a crawlspace below the base flood elevation must not be more than two feet below the lowest adjacent exterior grade.

(ii) The height of the below-grade crawlspace, measured from the interior grade of the crawlspace to the top of the crawlspace foundation wall, must not exceed four feet at any point.

(iii) The height limitation is the maximum allowable unsupported wall height according to the engineering analyses and building code requirements for flood hazard areas (refer to FEMA Technical Bulletin 11-01, page 7, Guidance for Pre-Engineered Crawlspaces). This limitation is intended to prevent these crawlspaces from being converted into habitable spaces.

(iv) There must be an adequate drainage system that removes floodwaters from the interior area of the crawlspace. The enclosed area should be drained within a reasonable time after a flood event. The type of drainage system will vary because of the site gradient and other drainage characteristics, such as soil types. Possible options include natural drainage through porous, well-drained soils and drainage systems such as perforated pipes, drainage tiles, or gravel or crushed stone drainage by gravity or mechanical means.

(v) The velocity of floodwaters at the site should not exceed five feet per second for any crawlspace. For velocities in excess of five feet per second, other foundation types should be used.

(vi) A “basement,” for the purposes of this chapter, is any area of the building having its floor subgrade (below ground level) on all sides.

(3) Utilities.

(a) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system.

(b) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters.

(c) New and replacement storm water drainage systems shall be designed to accommodate flood conditions expected during a 100-year storm event.

(4) Subdivision, Short Subdivisions, Planned Unit Development Proposals.

(a) All subdivisions, short subdivisions, and planned unit development proposals shall be designed to minimize flood damage.

(b) All subdivision, short subdivisions, and planned unit development proposals shall have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage.

(c) All subdivision, short subdivisions, and planned unit development proposals shall have adequate drainage provided to reduce exposure to flood damage; and

(d) Base flood elevation data shall be provided for all subdivision, short subdivisions, and planned unit development proposals.

(5) Review of Building Permits. Applications for building permits shall be reviewed to ensure the proposed construction will be reasonably safe from flooding, for elevation certification, and compliance with this chapter. [Ord. 962 § 2, 2005; Ord. 671 § 4.3.L, 1995.]

In all areas of special flood hazards where base flood elevation data has been provided as set forth in LCMC 15.70.040(3), Basis for Establishing the Areas of Special Flood Hazard, the following provisions are required:

(1) Residential Construction.

(a) New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated to the base flood elevation, which in La Conner is eight feet plus one foot.

(b) Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

(i) A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

(ii) The bottom of all openings shall be no higher than one foot above grade.

(iii) Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters.

(2) Nonresidential Construction.

(a) New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated to the level of the base flood elevation plus one foot or, together with attendant utility and sanitary facilities, shall:

(i) Be floodproofed at the base flood level so that below that level the structure is watertight with walls substantially impermeable to the passage of water.

(ii) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.

(iii) Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications and plans. Such certifications shall be provided to the planning director.

(iv) Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in subsection (1)(b) of this section.

(v) Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be rated at the base flood level.

(3) Critical Facility. Construction of new critical facilities shall be, to the extent possible, located outside the limits of the base floodplain. Construction of new critical facilities shall be permissible within the base floodplain if no feasible alternative site is available. Critical facilities constructed within the base floodplain shall have the lowest floor elevated to the base flood elevation at the site. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into flood waters. Access routes elevated to or above the level of the base floodplain shall be provided to all critical facilities to the extent possible.

(4) Manufactured Homes. All manufactured homes to be placed or substantially improved within the areas of special flood hazard shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at the base flood elevation (eight feet plus one foot); and be securely anchored to adequately anchored foundation system in accordance with general standards for construction materials and methods, subsection (1)(b) of this section.

(5) Accessory structures shall:

(a) Not be used for human habitation;

(b) Be designed to have low flood damage potential;

(c) Be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters;

(d) Be firmly anchored to prevent flotation which may result in damage to other structures;

(e) Service facilities such as electrical and heating equipment shall be elevated or floodproofed;

(f) Comply with LCMC 15.70.120, general standards, and this section, specific standards.

(6) Recreational Vehicles. Recreational vehicles placed on sites are required to either:

(a) Be on the site for fewer than 180 consecutive days; or

(b) Be fully licensed and ready for highway use, on its wheels or jacking system, be attached to the site only by quick disconnect type utilities and security devices, and have no permanently attached additions; or

(c) Meet the elevation and anchoring requirements for manufactured homes.

(7) Encroachments. The cumulative effect of any proposed development, where combined with all other existing and anticipated development, shall not increase the water surface elevation of the base flood level more than one foot at any point. [Ord. 1151 § 1, 2017; Ord. 1139 § 1, 2016; Ord. 962 § 2, 2005; Ord. 695 § 4, 1997; Ord. 671 § 4.3.M, 1995.]

No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. Violation of the provisions of this chapter by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who violates this chapter or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $1,000 or imprisoned for not more than 90 days, or both, for each violation, and in addition shall pay all costs and expenses involved in the case. Nothing herein shall prevent the town of La Conner from taking such other lawful action as is necessary to prevent or remedy any violation. [Ord. 671 § 4.3.N, 1995.]