Chapter 18.10 GENERAL PROVISIONS

A. The purpose of this title is 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. This title is to implement the goals, policies, guidelines, and requirements of the city comprehensive plan and the Growth Management Act.

C. The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city 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, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical and archaeological and aesthetic value protection, and recreation. These beneficial functions are not listed in order of priority.

D. Goals. By limiting development and alteration of critical areas, this title seeks 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, volcanic eruptions, or flooding.

2. Protect unique, fragile, and valuable elements of the environment, including ground and surface waters, wetlands, and fish and wildlife and their habitats.

3. Direct activities not dependent on critical area resources to less ecologically sensitive sites and mitigate unavoidable impacts to critical areas by regulating alterations in and adjacent to critical areas.

4. 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 habitat conservation areas.

E. The regulations of this title are intended to protect critical areas in accordance with the Growth Management Act and through the application of 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.

F. This title is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this title to make a parcel of property unusable by denying its owner reasonable economic use of the property.

G. The city’s enactment or enforcement of this title shall not be construed for the benefit of any individual person or group of persons other than the general public. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.020 Authority.

A. As provided herein, the director is given the authority to interpret and apply, and the responsibility to enforce, this title to accomplish the stated purpose.

B. The city may withhold, condition, or deny development permits or activity approvals to ensure that the proposed action is consistent with this title. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.030 Relationship to other regulations.

A. These critical area regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.

B. These critical area regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as adopted by the city. Any conditions required pursuant to this title shall be included in the SEPA review and threshold determination. When any provision of this title or any existing regulation, easement, covenant, or deed restriction conflicts with this title, that which provides more protection to the critical areas shall apply.

C. 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.

D. Compliance with the provisions of this title does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required (for example, Shoreline Substantial Development Permits, HPA permits, Army Corps of Engineers Section 404 permits, NPDES permits). The applicant is responsible for complying with these requirements, apart from the process established in this title. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.040 Administrative procedures.

The administrative procedures followed during the critical area review process shall conform to the standards and requirements of Brier Municipal Code. This shall include, but not be limited to, timing, appeals, and fees associated with applications covered by this title. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.050 Fees.

A. The city by resolution shall establish fees for critical area review processing, and other services provided by the city as required by this title.

B. Unless otherwise indicated in this title, the applicant shall be responsible for the initiation, preparation, submission, and expense of all required reports, assessment(s), studies, plans, reconnaissance(s), peer review(s) by qualified consultants, and other work prepared in support of or necessary to review the application. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.060 Severability.

If any clause, sentence, paragraph, section, or part of this title or the application thereof to any person or circumstances shall be judged by any court of competent jurisdiction to be invalid, such order or judgment shall be confined in its operation to the controversy in which it was rendered. The decision shall not affect or invalidate the remainder of any part thereof and to this end the provisions of each clause, sentence, paragraph, section, or part of this law are hereby declared to be severable. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.070 Administrative rules.

Applicable departments within the city are authorized to adopt such administrative rules and regulations as necessary and appropriate to implement this title and to prepare and require the use of such forms as necessary for its administration. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.080 Interpretation.

In the interpretation and application of this title, the provisions of this title shall be considered to be the minimum requirements necessary, shall be liberally construed to serve the purpose of this title, and shall be deemed to neither limit nor repeal any other provisions under state statute. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.090 Jurisdiction – Critical areas.

A. The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect, one or more critical areas, consistent with best available science and the provisions herein.

B. Critical areas regulated by this title include:

1. Wetlands as designated in Chapter 18.20 BMC, Wetlands.

2. Critical aquifer recharge areas as designated in Chapter 18.30 BMC, Critical Aquifer Recharge Areas.

3. Frequently flooded areas as designated in Chapter 18.40 BMC, Frequently Flooded Areas.

4. Geologically hazardous areas as designated in Chapter 18.50 BMC, Geologically Hazardous Areas.

5. Streams as designated in Chapter 18.60 BMC, Streams.

6. Fish and wildlife habitat conservation areas as designated in Chapter 18.70 BMC, Fish and Wildlife Habitat Conservation Areas.

C. All areas within the city meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of this title.

D. Areas Adjacent to Critical Areas Subject to Regulation. Areas adjacent to critical areas shall be considered to be within the jurisdiction of these requirements and regulations to support the intent of this title and ensure protection of the functions and values of critical areas. “Adjacent” shall mean any activity located:

1. On a site immediately adjoining a critical area.

2. A distance equal to or less than the required critical area buffer width and building setback.

3. A distance equal to or less than one-half mile (two thousand six hundred forty feet) from a bald eagle nest.

4. A distance equal to or less than three hundred feet upland from a stream, wetland, or water body.

5. Within the floodway, floodplain or channel migration zone.

6. A distance equal to or less than two hundred feet from a critical aquifer recharge area. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.100 Appeals.

Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this title may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 389 § 1 (Exh. A) (part), 2011)

Article II. Best Available Science

18.10.110 Best available science.

A. Protection for Functions and Values and Anadromous Fish. Critical area reports and decisions to alter critical areas shall rely on the best available science to protect the functions and values of critical areas and must give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish and their habitat, such as salmon and bull trout.

B. Best Available Science to Be Used Must 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. Characteristics of a Valid Scientific Process. In the context of critical areas protection, a valid scientific process is one that produces reliable information useful in understanding the consequences of a local government’s regulatory decisions, and in developing critical areas policies and development regulations that will be effective in protecting the functions and values of critical areas. To determine whether information received during the permit review process is reliable scientific information, the director shall determine whether the source of the information displays the characteristics of a valid scientific process. Such characteristics are as follows:

1. Peer Review. The information has been critically reviewed by other persons who are qualified scientific experts in that scientific discipline. The proponents of the information have addressed the criticism of the peer reviewers. Publication in a refereed scientific journal usually indicates that the information has been appropriately peer-reviewed.

2. Methods. The methods used to obtain the information are clearly stated and reproducible. The methods are standardized in the pertinent scientific discipline or, if not, the methods have been appropriately peer-reviewed to assure their reliability and validity.

3. Logical Conclusions and Reasonable Inferences. The conclusions presented are based on reasonable assumptions supported by other studies and consistent with the general theory underlying the assumptions. The conclusions are logically and reasonably derived from the assumptions and supported by the data presented. Any gaps in information and inconsistencies with other pertinent scientific information are adequately explained.

4. Quantitative Analysis. The data have been analyzed using appropriate statistical or quantitative methods.

5. Context. The information is placed in proper context. The assumptions, analytical techniques, data, and conclusions are appropriately framed with respect to the prevailing body of pertinent scientific knowledge.

6. References. The assumptions, analytical techniques, and conclusions are well referenced with citations to relevant, credible literature and other pertinent existing information.

D. Nonscientific Information. Nonscientific information may supplement scientific information, but it is not an adequate substitute for valid and available scientific information. Common sources of nonscientific information include the following:

1. Anecdotal Information. One or more observations that are not part of an organized scientific effort (for example, “I saw a grizzly bear in that area while I was hiking”).

2. Nonexpert Opinion. Opinion of a person who is not a qualified scientific expert in a pertinent scientific discipline (for example, “I do not believe there are grizzly bears in that area”).

3. Hearsay. Information repeated from communication with others (for example, “At a lecture last week, Dr. Smith said there were no grizzly bears in that area”).

E. Absence of Valid Scientific Information. Where there is an absence of valid scientific information or incomplete scientific information relating to a critical area, leading to uncertainty about the risk to critical area function of permitting an alteration of or impact to the critical area, the director shall:

1. Take a precautionary or a no-risk approach, that strictly limits development and land use activities until the uncertainty is sufficiently resolved.

2. Require an effective adaptive management program that relies on scientific methods to evaluate how well regulatory and nonregulatory actions protect the critical area. An adaptive management program is a formal and deliberate scientific approach to taking action and obtaining information in the face of uncertainty. An adaptive management program shall:

a. Address funding for the research component of the adaptive management program;

b. Change course based on the results and interpretation of new information that resolves uncertainties; and

c. Commit to the appropriate time frame and scale necessary to reliably evaluate regulatory and nonregulatory actions affecting protection of critical areas and anadromous fisheries. (Ord. 389 § 1 (Exh. A) (part), 2011)

Article III. Applicability, Exemptions, and Exceptions

18.10.120 Applicability.

The provisions of this title shall apply to all lands, all land uses and development activity, and all structures and facilities in the city, whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the city. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this title. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.130 Exemptions.

A. Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this title; provided, that they are otherwise consistent with the provisions of other local, state, and federal laws and requirements:

1. Emergencies. Emergency activities are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this title. Emergency actions shall use reasonable methods to address the emergency, and shall have the least possible impact to the critical area or its buffer. If an emergency action causes an adverse impact to a critical area or its buffer, the adverse impact shall be minimized and mitigated.

2. Operation, Maintenance or Repair. Operation, maintenance or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair.

3. Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area, including fishing, hiking, and bird watching. Trails must be constructed pursuant to public and private pedestrian trails, BMC 18.60.030(F).

4. Forest Practices. Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, WAC Title 222, and those that are exempt from city’s jurisdiction; provided, that forest practice conversions are not exempt.

5. Activities involving artificially created wetlands or streams, intentionally created from nonwetland sites, including but not limited to grass-lined swales, irrigation and drainage catches, retention or detention facilities, and landscape features, except wetlands or streams created as mitigation or that provide critical habitat for anadromous fish.

6. The addition of floor area within an existing building which does not increase the building footprint.

7. Site investigative work or studies that are prerequisite to preparation of an application for development authorization including soils tests, water quality studies, wildlife studies and similar tests and investigations; provided, that any disturbance of the critical area shall be the minimum necessary to carry out the work or studies.

8. Wetlands that were previously legally filled or wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. The latter shall be documented through photographs, statements and/or other conclusive evidence. Wetlands unintentionally created may still be subject to state and federal regulation.

B. Exempt Activities and Impacts to Critical Areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this title does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.140 Exception – Public agency utility.

A. If the application of this title would prohibit a utility proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

B. Exception Request and Review Process. An application for a public agency utility exception shall be made to the city and shall include critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW). The director shall prepare a recommendation to the planning commission based on review of the submitted information, a site inspection, and the proposal’s ability to comply with public agency and utility exception review criteria in subsection D of this section.

C. Planning Commission Review. The planning commission shall review the application and director’s recommendation, and conduct a public hearing pursuant to the provisions of BMC 17.36.050(E). The planning commission shall forward a recommendation to the city council to approve, deny, or approve with modifications, based on the proposal’s ability to comply with all of the public agency utility exception criteria in subsection E of this section.

D. City Council Review. Upon receipt of the planning commission’s recommendations, the city council shall consider the recommendations of the planning commission at a regular meeting. The city council shall approve, deny, or approve with modifications, based on the proposal’s ability to comply with all of the public agency utility exception criteria in subsection E of this section.

E. Public Agency Utility Review Criteria. The criteria for review and approval of public agency utility exceptions follow:

1. There is no other practical alternative to the proposed utility with less impact on the critical areas.

2. The application of this title would unreasonably restrict the ability to provide utility services to the public.

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

4. The proposal attempts to protect and mitigate impacts to the critical area functions and values consistent with the best available science.

5. The proposal is consistent with other applicable regulations and standards.

F. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

G. Installation of Temporary Erosion Control Measures. Temporary erosion control measures must be installed prior to the start of work within a critical area. The erosion control measures must be maintained in working order until it is determined that the site is stable and the measures no longer needed. The city engineer will approve the type of erosion control measures implemented and will determine when they can be removed. (Ord. 389 § 1 (Exh. A) (part), 2011)

18.10.150 Exception – Reasonable use.

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

B. Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include a critical area report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 43.21C RCW) (SEPA documents). The director shall prepare a recommendation to the planning commission based on review of the submitted information, a site inspection, and the proposal’s ability to comply with all of the reasonable use exception review criteria in subsection E of this section.

C. Planning Commission Review. The planning commission shall review the application and director’s recommendation, and conduct a public hearing pursuant to the provisions of BMC 17.36.050(E). The planning commission shall forward a recommendation to the city council to approve, deny, or approve with modifications, based on the proposal’s ability to comply with all of the reasonable use exception criteria in subsection E of this section.

D. City Council Review. Upon receipt of the planning commission’s recommendations, the city council shall consider the recommendations of the planning commission at a regular meeting. The city council shall approve, deny, or approve with modifications, based on the proposal’s ability to comply with all of the reasonable use exception criteria in subsection E of this section.

E. Reasonable Use Review Criteria. The criteria for review and approval of reasonable use exceptions is:

1. The application of this title would deny all reasonable economic use of the property.

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

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

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

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

6. The proposal will result in no net loss of critical area functions and values consistent with the best available science.

7. The proposal is consistent with other applicable regulations and standards.

Article IV. Critical Area Report

18.10.160 Critical area reports – Requirements.

A. Prepared by Qualified Professional. If required by any part of this title, the applicant shall submit a critical area report prepared by a qualified professional as defined herein. Critical area reports for two or more types of critical areas must meet the report requirements for each relevant type of critical area.

B. Incorporating Best Available Science. The critical area report shall use scientifically valid methods and studies in the analysis of critical area data and field reconnaissance and reference the source of science used. The critical area report shall evaluate the proposal and all probable impacts to critical areas in accordance with the provisions of this title.

C. Minimum Report Contents. At a minimum, the report shall contain the following:

1. The name and contact information of the applicant, a description of the proposal, and identification of the permit requested.

2. A copy of the site plan for the development proposal showing:

a. Identified critical areas, buffers, and the development proposal with dimensions;

b. Limits of any areas to be cleared; and

c. A description of the proposed stormwater management plan for the development and consideration of impacts to drainage alterations.

3. The dates, names, and qualifications of the persons preparing the report and documentation of any fieldwork performed on the site.

4. Identification and characterization of all critical areas, wetlands, water bodies, and buffers adjacent to the proposed project area.

5. A statement specifying the accuracy of the report, and all assumptions made and relied upon.

6. An assessment of the probable cumulative impacts to critical areas resulting from development of the site and the proposed development.

7. An analysis of site development alternatives.

8. A description of reasonable efforts made to apply mitigation sequencing pursuant to BMC 18.10.190, Mitigation sequencing, to avoid, minimize, and mitigate impacts to critical areas.

9. Plans for adequate mitigation, as needed, to offset any impacts, in accordance with BMC 18.10.200, Mitigation plan requirements, including, but not limited to:

a. The impacts of any proposed development within or adjacent to a critical area or buffer on the critical area; and

b. The impacts of any proposed alteration of a critical area or buffer on the development proposal, other properties and the environment.

10. A discussion of the performance standards applicable to the critical area and proposed activity.

11. Financial guarantees to ensure compliance.

12. Any additional information required for the critical area as specified in the corresponding chapter.

D. Unless otherwise provided, a critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the director. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.210)

18.10.170 Critical area report – Modifications to requirements.

A. Limitations to Study Area. The director may limit the required geographic area of the critical area report as appropriate if:

1. The applicant, with assistance from the city, cannot obtain permission to access properties adjacent to the project area; or

2. The proposed activity will affect only a limited part of the subject site.

B. Modifications to Required Contents. The applicant may consult with the director prior to or during preparation of the critical area report to obtain city approval of modifications to the required contents of the report where, in the judgment of a qualified professional, more or less information is required to adequately address the potential critical area impacts and required mitigation.

C. Additional Information May Be Required. The director may require additional information to be included in the critical area report when determined to be necessary to the review of the proposed activity in accordance with this title. Additional information that may be required includes, but is not limited to:

1. Historical data, including original and subsequent mapping, aerial photographs, data compilations and summaries, and available reports and records relating to the site or past operations at the site.

2. Grading and drainage plans.

3. Information specific to the type, location, and nature of the critical area. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.220)

18.10.180 Mitigation requirements.

A. The applicant shall avoid all impacts that degrade the functions and values of a critical area or areas. Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved critical area report and SEPA documents.

B. Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area. Off-site mitigation shall be allowed in an agency approved wetland bank within the same watershed or an agency approved in-lieu fee site within the same watershed.

C. Mitigation shall not be implemented until after city approval, and agency approval when required, of a critical area report that includes a mitigation plan, and mitigation shall be in accordance with the provisions of the approved critical area report. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.230)

18.10.190 Mitigation sequencing.

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

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

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

C. Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment to the historical conditions or the conditions existing at the time of the initiation of the project;

D. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area through engineered or other methods;

E. Reducing or eliminating the impact or hazard over time by preservation and maintenance operations during the life of the action;

F. Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources; and

G. Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation for individual actions may include a combination of the above measures. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.240)

18.10.200 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical area report. The mitigation plan shall include the following:

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

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

2. A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed.

3. An analysis of the likelihood of success of the compensation project.

B. Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of this title have been met.

1. Mitigation Shall Achieve Equivalent or Greater Biological Functions. Mitigation of alterations to critical areas shall achieve equivalent or greater biologic functions and shall include mitigation for project-related adverse impacts upstream or downstream of the development proposal site. Mitigation shall address each function affected by the alteration to achieve functional equivalency or improvement on a per function basis.

C. Detailed Construction Plans. The mitigation plan shall include written specifications and descriptions of the mitigation proposed, such as:

1. The proposed construction sequence, timing, and duration.

2. Grading and excavation details.

3. Erosion and sediment control features.

4. A planting plan specifying plant species, quantities, locations, size, spacing, and density.

5. Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

D. Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project, and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years 1, 3, 5 and 7 after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years. The monitoring of mitigation that includes planting of shrubs and trees shall be for a period of not less than ten years.

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

F. Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with BMC 18.10.280, Bonds to ensure mitigation, maintenance, and monitoring. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.250)

Article V. Variances

18.10.210 Variances.

A. Variances from the standards of this title may be authorized by the city in accordance with the procedures set forth in BMC 17.36.050. The variance request shall meet the following variance criteria.

B. No variance is allowed in order to create additional lots.

C. Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

1. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands in the same district.

2. The special conditions and circumstances do not result from the actions of the applicant.

3. A literal interpretation of the provisions of this title would deprive the applicant of use rights and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this title, and the variance requested is the minimum necessary to provide the applicant with such rights.

4. Granting the variance requested will not confer on the applicant any special privilege that is denied by this title to other lands, structures, or buildings under similar circumstances.

5. The granting of the variance is consistent with the general purpose and intent of this title, and will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property.

6. The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance fish and/or wildlife habitat.

7. The granting of the variance is consistent with the general purpose and intent of the Brier Comprehensive Plan and adopted development regulations.

D. Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this title.

E. Mitigation Required. In granting any variance, mitigation will be required for unavoidable impacts to critical areas.

F. Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

G. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.260)

Article VI. Unauthorized Alterations and Enforcement

18.10.220 Unauthorized critical area alterations and enforcement.

A. When a critical area or its buffer has been altered in violation of this title, all ongoing development work shall stop and the critical area shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work, and order restoration, rehabilitation or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this title. If the violator fails to perform or pay as required in this section, and the violator is not the owner or responsible party, the director may seek compliance or payment from the owner or responsible party.

B. Restoration Plan Required. All development work shall remain stopped until a restoration plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional and shall describe how the actions proposed meet the minimum requirements described in subsection C of this section. The director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

C. Minimum Performance Standards for Restoration.

1. For alterations to critical aquifer recharge areas, frequently flooded areas, wetlands, streams and habitat conservation areas the following minimum performance standards shall be met for the restoration of a critical area; provided, that if the violator can demonstrate that greater functional and habitat values can be obtained, these standards may be modified:

a. The pre-disturbance structural and functional values shall be restored, including water quality and habitat functions;

b. The historic soil types and configuration shall be replicated;

c. The critical area and buffers shall be replanted with native vegetation that replicates the vegetation historically found on the site in species types, sizes, and densities; and

d. The historic functions and values should be replicated at the location of the alteration.

2. For alterations to flood and geological hazards, the following minimum performance standards shall be met for the restoration of a critical area; provided, that, if the violator can demonstrate that greater safety can be obtained, these standards may be modified:

a. The hazard shall be reduced to a level equal to, or less than, the pre-development hazard;

b. Any risk of personal injury resulting from the alteration shall be eliminated or minimized; and

c. The hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

D. Site Investigations. The director is authorized to make site inspections and take such actions as are necessary to enforce this title. The director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

E. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this title shall be guilty of a misdemeanor and shall be punished in accordance with the provisions of BMC 1.28.030(A). (Ord. 435 § 2 (Exh. B) (part), 2016; Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.270)

Article VII. General Critical Area Protective Measures

18.10.230 Subdivisions.

A. The subdivision and short subdivision of land in a critical area and associated buffers is subject to the following:

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

2. Land that is located partially within a critical area or its buffer may be subdivided; provided, that an accessible and contiguous portion of each new lot is:

a. Located outside of the critical area and its buffer; and

b. Meets the minimum lot size requirements of BMC Title 17.

3. Access roads and utilities serving the proposed subdivision may be permitted within the critical area and associated buffers only if the city determines that no other feasible alternative exists in and when consistent with this title. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.280)

18.10.240 Critical area markers and signs.

A. The boundary at the outer edge of the critical area or buffer shall be identified with temporary signs prior to any site alteration. Such temporary signs shall be replaced with permanent signs prior to occupancy or use of the site.

B. Permanent signs shall be made of a metal face and attached to a metal post, or another material of equal durability. Signs must be posted at an interval of one per lot or every fifty feet, whichever is less, and must be maintained by the property owner in perpetuity. The sign shall be worded as follows or with alternative language approved by the director:

Protected (type of critical area) Area

Do Not Disturb

Contact the City of Brier

Regarding Uses and Restriction

(Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.290)

18.10.250 Notice on title.

A. In order to inform subsequent purchasers of real property of the existence of critical areas, the owner of any property containing a critical area or buffer on which a development proposal is submitted shall file a notice with the county records and elections division according to the direction of the city. The notice shall state the presence of the critical area or buffer on the property, of the application of this title to the property, and the fact that limitations on actions in or affecting the critical area or buffer may exist. The notice shall run with the land.

B. This notice on title shall not be required for a development proposal by a public agency or public or private utility:

1. Within a recorded easement or right-of-way;

2. Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

3. On the site of a permanent public facility.

C. The applicant shall submit proof that the notice has been filed for public record before the city approves any development proposal for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.300)

18.10.260 Critical area tracts.

A. Critical area tracts shall be used in development proposals for subdivisions, short subdivisions, planned unit developments, and binding site plans to delineate and protect those contiguous critical areas and buffers listed below:

1. All landslide hazard areas and buffers.

2. All wetlands and buffers.

3. All streams and buffers.

4. All habitat conservation areas.

5. All other lands to be protected from alterations as conditioned by project approval.

B. Critical area tracts shall be recorded on all documents of title of record for all affected lots.

C. Critical area tracts shall be designated on the face of the plat or recorded drawing in a format approved by the city attorney. The designation shall include the following restrictions:

1. An assurance that native vegetation will be preserved for the purpose of preventing harm to property and the environment, including, but not limited to, controlling surface water runoff and erosion, maintaining slope stability, buffering, and protecting plants, fish, and animal habitat.

2. The right of the city to enforce the terms of the restriction.

D. The city may require that any required critical area tract be dedicated to the city, held in an undivided interest by each owner of a building lot within the development with the ownership interest passing with the ownership of the lot, or held by an incorporated homeowner’s association or other legal entity (such as a land trust, which assures the ownership, maintenance, and protection of the tract). (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.310)

18.10.270 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of fifteen feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. The following may be allowed in the building setback area:

A. Landscaping;

B. Uncovered decks;

C. Building overhangs if such overhangs do not extend more than twenty-four inches into the setback area; and

D. Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations as adopted in the most current version of the Department of Ecology Stormwater Management Manual for Western Washington. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.320)

18.10.280 Bonds to ensure mitigation, maintenance, and monitoring.

A. When mitigation required pursuant to a development proposal is not completed prior to the city final permit approval, such as final plat approval or final building inspection, the city shall require the applicant to post a performance bond or other security in a form and amount deemed acceptable by the city. If the development proposal is subject to mitigation, the applicant shall post a mitigation bond or other security in a form and amount deemed acceptable by the city to ensure mitigation is fully functional. If the development proposal is subject to continued maintenance, the applicant shall post a maintenance bond or other security in a form and amount deemed acceptable by the city to ensure proper maintenance of the proposal.

B. The bond shall be in the amount of one hundred and fifty percent of the estimated cost of the uncompleted actions or the estimated cost of restoring the functions and values of the critical area that are at risk, whichever is greater.

C. The bond shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney.

D. Bonds or other security authorized by this section shall remain in effect until the city determines, in writing, that the standards bonded for have been met. Bonds or other security shall be held by the city for a minimum of five years to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary, such as until a monitoring period is complete.

E. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

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

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

H. Any funds recovered pursuant to this section shall be used to complete the required mitigation. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.330)

18.10.290 Critical area inspections.

Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. (Ord. 389 § 1 (Exh. A) (part), 2011. Formerly 18.10.340)