Mukilteo City Zoning Code
CHAPTER 17
52 CRITICAL AREAS REGULATIONS
§ 17.52.010 Purpose of critical areas regulations.
The purpose of the critical area regulations contained in Chapters 17.52A through 17.52D of the Mukilteo Municipal Code is:
A.
To designate and classify ecologically sensitive and hazardous areas and to protect these areas and their functions and values, while also allowing for reasonable use of private property.
B.
To implement the goals, policies, guidelines, and requirements of Mukilteo's comprehensive plan and the Washington State Growth Management Act.
C.
The city of Mukilteo finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit Mukilteo and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, ground water recharge and discharge, erosion control, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.
D.
To protect critical areas in accordance with the Growth Management Act and through the application of the best available science, as determined according to WAC 365-195-900 through 365-195-925, and in consultation with state and federal agencies and other qualified professionals.
E.
To limit development and alteration of critical areas and provide minimum development regulations to:
1.
Protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, liquefaction, tsunami or flooding;
2.
Maintain healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species;
3.
Preserve, replace or enhance, to the maximum extent practicable, native evergreens, specimen deciduous trees, understory and groundcover within the city;
4.
To minimize water quality degradation and the sedimentation of creeks, streams, ponds, lakes, wetlands and other Puget Sound water bodies;
5.
To minimize the impact of increased runoff, erosion and sedimentation on down stream properties and water bodies caused by improper land development maintenance practices;
6.
To maintain and protect the habitat of threatened and endangered wildlife species;
7.
To maintain and protect ground water resources and hydraulic flows that support seasonal and year-round water bodies;
8.
To minimize adverse effects of alteration in ground and surface water quantities, locations and flow patterns;
9.
To decrease potential landslide, flood and erosion damage to public and private property;
10.
To promote site-planning building practices which are consistent with the city's natural topographical, vegetational and hydrological features;
11.
Direct activities not dependent on critical areas resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas; and
12.
Prevent cumulative adverse environmental impacts to water quality, wetlands, and fish and wildlife habitat, and the overall net loss of wetlands, frequently flooded areas, and fish and wildlife habitat conservation areas.
F.
To provide flexibility and attention to site-specific characteristics when administering this code. It is not the intent of this code to make a parcel of property unusable by denying its owner reasonable economic use of the property nor to prevent the provision of public facilities and services necessary to support existing development.
G.
The city of Mukilteo's enactment or enforcement of this chapter shall not be construed to benefit any individual person or group of persons other than the general public.
(Ord. 987 § 3 (part), 2000; Ord. 1124 § 5, 2005)
§ 17.52.020 Critical areas defined.
For the purpose of the critical area regulations contained in Chapters 17.52 through 17.52E, "critical areas" are defined as those possessing existing slopes in excess of forty percent, or areas containing unstable soils or other geologic hazards, or natural drainage ways or ravines, areas of special flood hazard, areas of critical recharging effect on aquifers used for potable water, areas supporting hydrologic flows for seasonal or year around water bodies, or areas that have been identified as providing significant wildlife habitat by the Washington Department of Fish and Wildlife, wetland areas, or those areas defined as shorelines of Mukilteo, the state, or of state-wide significance.
(Ord. 987 § 3 (part), 2000)
§ 17.52.021 Critical areas mitigation program established.
A.
The critical areas mitigation program (CAMP) is hereby established by the city of Mukilteo to facilitate the review and approval of mitigation required for projects that impact wetlands, streams, or buffers in Mukilteo and neighboring areas. The program will help ensure that mitigation "is located appropriately on the landscape, addresses restoration of watershed processes, is sustainable, and has a high likelihood of ecological success" as recommended by the Washington State Department of Ecology (Hruby 2009). This program provides alternative options for critical areas mitigation by identifying pre-selected off-site mitigation sites in several sub-basins within the city, which were selected following a watershed approach.
B.
The intent of the CAMP is to assist the city and prospective permit applicants during the permit review process to appropriately mitigate for critical areas impacts and achieve the regulatory requirement of no net loss. The city's critical areas regulations are designed to "protect members of the public and public resources and facilities from injury, loss of life, or property damage due to landslides and steep slope failures, erosion, seismic events, liquefaction, tsunami or flooding; while maintaining healthy, functioning ecosystems through the protection of unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats, and to conserve the biodiversity of plant and animal species." The CAMP is designed to further the goals of the critical areas regulations and assist with timely review of land use permit applications.
C.
The program is designed to provide alternatives for critical areas mitigation by identifying appropriate off-site mitigation sites in several sub-basins within the city and its urban growth area (UGA). The site selection followed a watershed approach as recommended by state and federal agencies (Hruby et al. 2009). Preselection of the mitigation sites by the city will ensure that watershed processes within the city and UGA are enhanced and supported by the approved mitigation.
(Ord. 1309 § 2, 2012)
§ 17.52.022 Public agency and utility exceptions.
A.
If the application of the critical area provisions of this chapter would prohibit a street, road, railroad, high capacity transit, or utility line proposal by a public agency or utility or the installation of necessary utilities for a development proposal by a public agency or utility or the installation of necessary utilities for a development proposal, the agency, utility or private applicant may apply for an exception pursuant to this section. The public agency, utility or private applicant shall prepare an application and report justifying the requested exception.
B.
Applications for the repair, replacement, relocation, or alignment of utility main or trunk lines (eight inches or greater in size), or the extension, expansion, repair, replacement, or relocation of roadways, railroad lines and other high capacity transit projects, or essential public facilities in critical areas, shall be granted subject to the following criteria:
1.
A critical areas and/or geotechnical report must be prepared delineating all the critical areas and identifying the best location(s) to place the facilities with the least disruption to these critical areas with consideration given to the proposed mitigation and short- and long-term impacts and improvements.
2.
A mitigation plan must be prepared using best available science showing a net improvement to the critical area(s) affected by the alignment of the roadway, railroad line, utility, or essential public facility. If on-site mitigation is not feasible, off-site mitigation that improves the function of critical areas in Mukilteo or MUGA can be considered. Mitigation could include, but not be limited to, opening up of stream corridors, enhancement of riparian corridors, creation or restoration of old degraded wetland sites, stabilization of landslide areas, improving natural hydrology and the inclusion of public access trails and viewpoints.
3.
The agency shall enter into a long-term monitoring and maintenance agreement with the city to ensure that the mitigation site(s) remain in healthy and thriving conditions. Monitoring shall be for a minimum of three years and can be terminated or extended by the city if warranted by annual inspections and monitoring reports.
4.
The applicant shall obtain all required state and federal approvals for work within wetlands or waters.
C.
Applications for all other utility exceptions shall be reviewed based on the following criteria:
1.
There is no other feasible and reasonable alternative to the proposed development with less impact on the critical area and/or buffer, based on demonstration by the applicant of the following factors:
a.
The applicant has considered possible construction techniques based on available technology that are feasible for the proposed project and eliminated any that would result in unreasonable risk of impacts to the specific critical area involved;
b.
The applicant has considered feasible alignments, including the possibility of obtaining rights-of-way or easements in noncritical areas; and
c.
A description of alternatives considered and the application of best available science must be included in the exception request;
2.
The proposal minimizes the impact on the critical area and/or buffer and incorporates all reasonable mitigation measures appropriate for the critical area affected by the project; and
3.
Construction techniques shall minimize both long- and short-term impacts to the critical area and its buffer.
(Ord. 1112 § 3, 2005; Ord. 1309 § 3, 2012)
§ 17.52.025 Reasonable use provisions.
A.
The standards and requirements of these critical area regulations are not intended and shall not be construed or applied in a manner to deny all reasonable use of private property. If the applicant demonstrates to the satisfaction of the planning director or his or her designee that strict application of these standards would deny all reasonable use of a property, development may be permitted subject to appropriate conditions. A reasonable use exception is intended as a "last resort" when no plan and/or mitigation can meet the requirements of this chapter and allow the applicant a reasonable viable use of his or her property.
B.
The applicant must demonstrate to the planning director or his or her designee all of the following:
1.
That no reasonable use with less impact on the critical area and/or the buffer is feasible and reasonable;
2.
There is no feasible and reasonable on-site alternative to the proposed activity or use that would allow reasonable use with less adverse impacts to the critical area and/or buffer. Feasible on-site alternatives shall include, but are not limited to: reduction in density or building size, phasing of project implementation, change in timing of activities, and revision of road or parcel layout or related site planning considerations;
3.
There are no practical alternatives available to the applicant for development of the property. An alternative is practical if the property or site is available and the project is capable of being done after taking into consideration existing technology, infrastructure, and logistics in light of the overall project purpose;
4.
The proposed activity or use will be mitigated to the maximum practical extent and result in the minimum feasible alteration or impairment of functional characteristics of the site, including contours, vegetation and habitat, ground water, surface water, and hydrologic conditions, and consideration has been given to best available science;
5.
There will be no material damage to nearby public or private property and no material threat to the health or safety of people on or off the property;
6.
The proposed activity or use complies with all local, state, and federal laws and the applicant has applied for or obtained all required state and federal approvals; and
7.
The inability to derive reasonable use is not the result of actions by the applicant in segregating or dividing the property and creating the undevelopable condition after March 23, 1992.
C.
Allowed Reductions for Single-Family Residential Reasonable Use Lots. As provided under state law and the guidelines of the Department of Commerce, reasonable use permits shall allow the development of a modest single-family residential home on a critical area lot.
1.
Building setbacks may be reduced by up to fifty percent where the applicant demonstrates to the city that the development cannot meet the city's code requirements without encroaching onto a critical area or its buffer.
2.
Development on reasonable use lots shall leave at least seventy percent of the lot undisturbed to protect the critical areas. On small lots seven thousand five hundred square feet or less, a maximum building footprint of one thousand five hundred square feet would be allowed. Additional impervious area for the driveway will be permitted which provides the shortest and most direct access to the house with minimal encroachment or impact into the critical area or buffer. When determining if the access has minimum encroachment or impact on a critical area the use of bridges and open bottom culverts are shall be considered minimal impact. Yard areas will be permitted only if they do not encroach into the critical area or buffer.
3.
Critical area regulations, buffers and/or steep slope setbacks may be reduced as follows:
a.
Less than twenty-five percent is an administrative process.
b.
Twenty-five percent to fifty percent where the applicant demonstrates to the city that the development cannot meet the city's code requirements without encroaching onto a critical area or its buffer is an administrative process. In order for the property owner to receive this administrative reduction, the applicant must provide a report relying on best available science and prepared by a qualified specialist to the city that demonstrates the reduction is warranted.
c.
Fifty percent or greater reduction requires approval by the hearing examiner through a variance process and with the submittal of a report relying on best available science and prepared by a qualified specialist to the city that demonstrates the reduction is warranted.
4.
In order for the property owner to receive a reduction in the required critical area buffer, administratively or through a variance, the remaining buffer shall be enhanced to reduce significant adverse impacts to the critical area and off-site buffer mitigation shall be required for the area of buffer reduced. Mitigation can be in the form of payment of a fee in-lieu of buffer mitigation through use of the Mukilteo habitat reserve (MHR) as described in the Mukilteo CAMP. Mitigation may also be in the form of off-site buffer restoration or enhancement as described in the Mukilteo critical areas mitigation program (CAMP) or some other available site per an approved mitigation plan as required by the city's critical areas regulations.
D.
Allowed Reductions for Multifamily, Commercial, and Industrial Lots.
1.
Building setbacks may be reduced by up to fifty percent where the applicant demonstrates to the city that the development cannot meet the city's code requirements without encroaching onto a critical area or its buffer.
2.
The number of required parking stalls may be reduced by up to forty percent if the applicant can demonstrate that the reduction would not negatively affect the business or create spillover parking onto city streets.
3.
Critical area regulations, buffers, and/or steep slope setbacks may be reduced as allowed in subsections (C)(3) and (4) of this section.
E.
If, upon application of the wetland mitigation and buffer reduction options contained in Chapters 17.52A through 17.52D, and reasonable provisions contained herein, a development cannot be built without further intrusion into the critical area or buffer, then the applicant can pursue a variance under Chapter 17.64, Conditional Uses and Variances.
F.
Subdivisions of reasonable use lots will not be allowed unless there is sufficient area to construction all buildings, driveways, drainage facilities, landscaping, and yards areas without intruding on the critical area, buffer, or setback.
(Ord. 1112 § 3, 2005; Ord. 1309 § 4, 2012)
§ 17.52.030 Authority.
Chapters 17.52 through 17.52E are adopted pursuant to the Growth Management Act, Chapter 36.70A RCW. Development regulations contained within these chapters for the protection of critical areas shall constitute adequate mitigation of adverse or significant adverse environmental impacts on critical areas for the purposes of Chapter 17.84, Implementing the State Environmental Policy Act. If an application meets the minimum standards as listed in these chapters for the protection of critical areas, no additional environmental review will be required.
(Ord. 987 § 3 (part), 2000)
§ 17.52.035 Native growth protection areas (NGPAs) and buffers.
A.
Any area in which development is prohibited by these critical areas regulations shall be set aside in a native growth protection area. NGPAs shall be placed in a separate tract on which development is prohibited, protected by execution of an easement, dedicated to a conservation organization or land trust, or similarly preserved through a permanent protective mechanism acceptable to the city. The location and limitation associated with the critical area and its buffer shall be shown on the face of the deed, site plan, or plat applicable to the property and shall be recorded with the Snohomish County assessor's office.
B.
Native growth protection areas and buffers shall not be used for storage or deposit of construction debris or material, or deposit of vegetative spoils.
C.
All native growth protection areas shall be shown on the development site plans or final plat maps, and shall be noted as follows:
There shall be no clearing, excavation, or fill within a native growth protection area shown on the face of this site plan/plat, with the exception of required utility installation, removal of dangerous trees, thinning of woodlands for the benefit of the woodlands as determined by a certified landscape architect or arborist, and removal of obstructions on drainage courses, or as allowed under Section 17.52A.070, Vegetation management on steep slopes. |
D.
A temporary sign shall be placed at the boundary of all native growth protection areas during periods of construction, clearing, grading, or excavation on adjacent property. The sign shall describe the limitations of on-site disturbance and development within the native growth protection area. A permanent sign shall be placed at the boundary of all native growth protection areas describing the limitation on development. NGPA signs shall be spaced fifty feet on center along the periphery of the critical area.
E.
A written report by a certified landscape architect, arborist, or wetland specialist shall be provided with all requests to modify or disturb a native growth protection area. The report shall be reviewed by the planning and public works directors, which shall approve, condition, or reject the request based on findings presented.
F.
Development in city-owned gulches that are zoned parks and open space is limited to those recreational activities permitted by the Mukilteo Municipal Code or a master park plan approved by the city council. Many of these gulches and ravines have critical areas that are regulated by the city's critical areas ordinance and should be reflected in any development proposal. However, since they are protected by the parks and open space zoning designation the requirement to place these publicly owned properties in native growth protection areas would be duplicative and unnecessary. Therefore, existing public infrastructure, such as the sewer plant and sewer and water lines, located within major ravines and/or on property zoned parks and open space under the ownership of the city of Mukilteo are not required to place the critical areas within a native growth protection area.
(Ord. 1112 § 9, 2005)
§ 17.52.038 Incorporation of best available science.
A.
Preparation of Critical Area Reports/Biological Assessments/Habitat Management Plans. Critical area reports prepared to determine whether "no net loss" to a critical area will be achieved before alteration or mitigation to a critical area is undertaken shall rely on the "best available science" to protect the functions and values of critical area and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish, such as salmon and bull trout, and their habitat, where applicable.
B.
Best Available Science to Be Consistent with Criteria. The best available science is that scientific information applicable to the critical area prepared by local, state, or federal natural resource agencies, a qualified scientific professional, or team of qualified scientific professionals that is consistent with criteria established in WAC 365-195-900 through 365-195-925.
C.
Absence of Valid Scientific Information. Where there is significant uncertainty about the risk to critical area function, or permitting an alteration of or impact to the critical area, that cannot be resolved because of incomplete scientific information, the planning director shall take a "precautionary or a no-risk approach," that strictly limits development and land use activities until the uncertainty is sufficiently resolved.
(Ord. 1124 § 6, 2005)
§ 17.52.040 Enforcement.
B.
Any violation of the critical area regulations shall result in the immediate issuance of a stop work order which shall remain in effect until the violation has been corrected. In addition to the stop work order, violations of this chapter shall constitute a civil infraction as outlined in Mukilteo Municipal Code Chapter 1.32, General Penalties. The first violation shall constitute a Class III civil infraction, the second offense shall constitute a Class II civil infraction and the third and each violations thereafter within a one-year period shall be classified as a Class I civil infraction.
C.
In addition to any other penalties provided by law, removal of vegetation or encroachment into a buffer area or NGPA shall result in the immediate issuance of a stop work order or citation. The violator shall file a landscaping plan with the city for review and all required replacement landscaping shall be installed prior to withdrawal of the stop work order.
(Ord. 987 § 3 (part), 2000; Ord. 1083 § 22, 2003)
§ 17.52.050 Consistency.
A.
These critical areas regulations shall apply in addition to zoning, grading, building, landscaping, storm and surface water, and other regulations adopted by the city of Mukilteo.
B.
Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing land-use regulation conflicts with this chapter, that which provides more protection to the critical area shall apply.
C.
Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Mukilteo's Shoreline Substantial Development Permits, WDFW Hydraulic Permit Act (HPA) permits, Section 106 of the National Historic Preservation Act, U.S. Army Corps of Engineers Section 404 permits, National Pollution Discharge Elimination System permits administered by the Washington Department of Ecology). The applicant is responsible for complying with these requirements, apart from the process established in this chapter.
D.
Wherever the requirements of the critical areas chapters are in conflict with the requirements of the applicable zoning ordinance, subdivision ordinance or any federal, state, or lawfully adopted rules or regulations, the most restrictive standards shall apply.
(Ord. 1112 § 11, 2005; Ord. 1124 § 7, 2005)