Chapter 14.20
USE AND ACTIVITY REGULATIONS
Sections:
14.20.010 Permitted uses.
14.20.020 Regulated uses and activities.
14.20.030 Exemptions.
14.20.040 Nonconforming uses and structures.
14.20.050 Reasonable use exceptions.
14.20.060 Current use assessment program.
14.20.010 Permitted uses.
Uses permitted on properties designated as critical areas shall be the same as those permitted in the zone classification shown in the city's zoning atlas unless specifically prohibited by this title. (Ord. 02-200 § 2).
14.20.020 Regulated uses and activities.
A. Unless the requirements of this title are met, the department shall not grant any approval or permission to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement regulated through the following: building permit, commercial or residential; binding site plan; franchise right-of-way construction permit; site development permit; right-of-way permit; short subdivision; large lots; use permits; subdivision; utility permits; or any subsequently adopted permit or required approval not expressly exempted by this chapter.
B. The following activities are regulated within a critical fish and wildlife habitat area, wetland, aquifer recharge area, landslide or erosion hazard area, flood hazard area, and/or their buffers unless exempted by EMC 14.20.030:
1. Removing, excavating, disturbing, or dredging soil, sand, gravel, minerals, organic matter, or materials of any kind;
2. Dumping, discharging, or filling;
3. Draining, flooding, or disturbing the water level or water table. In addition, an activity which involves intentional draining, flooding, or disturbing the water level or water table in a wetland or stream in which the activity itself occurs outside the regulated area shall be considered a regulated activity;
4. Driving piling or placing obstructions, including placement of utilities;
5. Constructing, reconstructing, demolishing, or altering the size of any structure or infrastructure;
6. Altering the character of a regulated area by destroying or altering vegetation through clearing, harvesting, cutting, intentional burning, shading, or planting;
7. Activities which result in significant changes in water temperature or physical or chemical characteristics of wetland or stream water sources, including changes in quantity of water and pollutant level;
8. Application of pesticides, fertilizers, and/or other chemicals unless demonstrated not to be harmful to the regulated area;
9. The division or redivision of land;
10. The creation of impervious surfaces.
11. The city adopts the Forest Practice Act (Chapter 76.09 RCW) by reference. (Ord. 02-200 § 2).
14.20.030 Exemptions.
The following activities are exempt from the provisions of this title:
A. Existing agricultural activities established prior to February 2, 1992; that after that date, do not cause permanent conversion of a critical area through actions such as filling, ditching, draining, clearing, grading, etc.; provided, that:
1. Existing agricultural activities and structures shall comply with the provisions of Chapter 14.70 EMC, Flood Hazard Areas; and
2. Determination of an agricultural exemption status is limited to the specific area(s) upon which lawfully established agricultural activities are being conducted. A determination that an activity is exempt within one portion of a property does not necessarily extend to other portions of the property.
B. Maintenance or reconstruction of existing, lawfully established public facilities; provided, that reconstruction does not involve expansion of the facility:
1. Roads, paths, bicycle ways, trails, bridges, and associated storm drainage facilities or other public rights-of-way;
2. Flood control improvements such as, but not limited to, levees, revetments, floodwalls, regional storm drainage facilities, drainage structures, or channel capacity projects to protect public infrastructure and/or existing development, when administered by Edgewood public works and utilities; provided, that the work shall:
a. Not increase the height of the facility or linear length of the affected stream edge;
b. Not expand the footprint of the facility waterward or into any landward aquatic habitat; and
c. Use approved fish-friendly bioengineering techniques to the extent feasible.
C. Maintenance or reconstruction of existing private roads, driveways, on-site septic systems, and wells; provided, that reconstruction does not involve expansion of facilities, widening, or relocation.
D. For the following utility activities, when undertaken pursuant to best management practices to avoid impacts to critical areas:
1. Normal and routine maintenance or repair of existing utilities that does not include any expansion.
2. Installation, replacement, operation, repair, alteration, extension, or construction of all utility lines, equipment, or appurtenances in improved city road rights-of-way.
E. Reconstruction, remodeling, or maintenance of existing single-family residential structures and accessory structures that are located outside a flood hazard area and active landslide hazard area; provided, that a one-time only expansion of the building footprint does not increase by more than 25 percent and that the new construction or related activity does not further intrude into the critical area or related buffer. The exemption shall not apply to reconstruction which is proposed as a result of structural damage associated with a critical area, such as slope failure in a landslide hazard area or flooding in a flood hazard area.
F. Reconstruction, remodeling, or maintenance of structures, other than single-family structures and accessory structures that are located outside a flood hazard area or active landslide hazard area; provided, that such reconstruction, remodeling, or maintenance does not increase the floor area nor extend beyond the existing ground coverage. The exemption shall not apply to reconstruction which is proposed as a result of site or structural damage associated with a critical area, such as slope failure in a landslide hazard area or flooding in a flood hazard area.
G. Site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests, and other related activities. Critical area impacts shall be minimized and disturbed areas shall be immediately restored.
H. Emergency action necessary to prevent imminent threat or danger to public health or safety, or to public or private property, or serious environmental degradation.
1. The department shall review all proposed emergency actions to determine the existence of the emergency and reasonableness of the proposed actions taken; however, post-emergency actions, such as submittal of permits, completion of city review, modification or removal of the emergency repair work, or mitigation shall be required by the department.
2. Shoreline erosion protection measures shall only be allowed as an emergency action when the owner can demonstrate that there is an imminent threat to an existing residential, commercial, industrial, or agricultural structure. The owner shall retain either city staff or an engineering geologist to conduct a site investigation and provide adequate documentation that the situation is actually an emergency. An emergency action is not warranted when the structure is located outside the active landslide or shoreline erosion hazard area.
I. Activities in artificial wetlands, except those artificial wetlands intentionally created from nonwetland sites, including but not limited to irrigation and drainage ditches, grass-lined swales, canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities; or, those wetlands created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway. However, wetlands may include those artificial wetlands intentionally created from nonwetland areas, created to mitigate conversion of wetlands, if permitted by the department.
J. Activities affecting:
1. Category III wetlands less than 2,500 square feet in size which fail to meet the definition of an associated wetland, and which are not part of a mosaic wetland system as set forth in EMC 14.30.020(E)(2).
2. Category IV wetlands less than 10,000 square feet in size and which fail to meet the definition of an associated wetland, and which are not part of a mosaic wetland system as set forth in EMC 14.30.020(E)(2).
3. Category III and IV wetlands exempted under this section may still be regulated under the provisions of the city's adopted stormwater management manual.
K. Placement of access roads, utility lines, and utility poles across a Category IV wetland and/or a buffer for a Category IV wetland if there is no reasonable alternative.
L. Activities on improved portions of roads, rights-of-way, or easements; provided, there is no expansion of ground coverage.
M. Activities in wetlands in areas managed according to a special area management plan or other plan adopted by the department and specifically designed to protect wetland resources.
N. Removal by hand of manmade litter and control of noxious weeds that are included on the state noxious weed list (Chapter 16-750 WAC) or invasive plant species as identified by the city. Control may be conducted by clipping, pulling, or digging, or by an alternative nonmechanical method upon approval of a plan by the department.
O. Activities undertaken to comply with a United States Environmental Protection Agency superfund order, or a Washington Department of Ecology order, pursuant to the Model Toxics Control Act, including the following activities:
1. Remediation or removal of hazardous or toxic substances;
2. Source control; and
3. Natural resource damage restoration.
P. Maintenance activities of landscaping and gardens in a required buffer, including but not limited to, mowing lawns, weeding, harvesting, and replanting of garden crops, pruning and planting of vegetation to maintain the condition and appearance of the site existing on February 1, 1992.
Q. Activities designed for previously approved maintenance and enhancement of critical areas and/or their associated buffers.
R. Activities undertaken on the site of an existing holding pond where the water flow and/or water table is controlled by a previously approved pump system.
S. A residential building permit for a lot which was created through a land division action subject to previous reports and assessments as required under this title; provided, that the previous reports and assessments adequately identified the impacts associated with the current development proposal.
T. Maintenance of individual cemetery plots in established and approved cemeteries.
U. Activities within a portion of a wetland buffer or fish and wildlife habitat area buffer located landward of an existing, substantially developed area, such as a paved area, dike, levee, or permanent structure which eliminates or greatly reduces the impact of the proposed activities on the wetland or fish and wildlife habitat area. The department shall review the proposal to determine the likelihood of associated impacts.
V. Passive recreation such as hunting, hiking, fishing, and wildlife viewing that does not involve the construction of trails.
W. Enhancement actions that do not involve clearing, grading, or construction activities (e.g., revegetation with native plants and installation of nest boxes). Enhancement activity proposals shall be reviewed by the department.
X. Maintenance or repair of existing shoreline erosion protection measures or structures; provided, that the repair shall not serve to expand any existing structures or increase the impacts of such structure on critical fish or wildlife habitat.
Y. In addition to the general exemptions listed in this section, the following uses or activities are exempt from the provisions of Chapter 14.50 EMC, Aquifer Recharge and Wellhead Protection Areas:
1. Sewer lines and appurtenances;
2. Biosolids and sludge land application sites; provided, that these activities comply with the requirements established in Chapters 173-200, 173-216, and 173-304 WAC; and
3. Single-family and two-family dwellings and associated accessory structures. (Ord. 02-200 § 2).
14.20.040 Nonconforming uses and structures.
An established use or existing structure located in a wetland, critical fish and wildlife habitat area, landslide or erosion hazard area, flood hazard area, and their associated buffers that was lawfully permitted prior to February 1, 1992, but which is not currently in compliance with this title, may continue subject to the following:
A. Nonconforming Use Expansion. Nonconforming uses shall not be expanded or changed in any way that increases the nonconformity without a permit issued pursuant to the provisions of this title.
B. Nonconforming Structure Expansion. Existing structures shall not be expanded or altered in any manner that will increase the nonconformity without a permit issued pursuant to the provisions of this title, except as provided in EMC 14.20.030(F) and (G).
C. Discontinued Uses. Activities or uses which are discontinued for 12 consecutive months shall be allowed to resume only if they are in compliance with this title.
D. Substantial Damage. Nonconforming structures, except for structures located in a flood hazard area or active landslide hazard area which are damaged or destroyed by fire, explosion, flood, or other casualty, may be restored or replaced if reconstruction is commenced within one year of such damage and is substantially completed within 18 months of the date such damage occurred. The reconstruction or restoration shall not serve to expand, enlarge, or increase the nonconformity except as allowed through the provisions in EMC 14.20.030(F) and (G). Structures in a floodway or active landslide hazard area may be allowed to be restored only up to the limits of substantial improvement, as set forth in each chapter. (Ord. 02-200 § 2).
14.20.050 Reasonable use exceptions.
A. General Requirements.
1. If the application of this title would deny all reasonable use of a site, development may be allowed which is consistent with the general purposes of this title and the public interest. Nothing in this title is intended to preclude all reasonable use of property.
2. The provisions outlined in this section shall only be used when application of this title would deny all reasonable use of a site.
3. Reasonable use provisions shall apply to new construction, expansions, additions, replacements, and redevelopment projects.
4. Applications for a reasonable use shall automatically constitute an application for a variance to reduce front, side, or rear yard setback requirements. The hearing examiner shall examine the feasibility of reducing setbacks as a method of locating a structure outside a critical area or its associated buffer prior to granting a reasonable use exception for allowing construction to occur within a critical area or its associated buffer. Reductions in setback requirements shall be given preference over granting of a reasonable use exception.
5. The creation of new lots within critical areas and their associated buffers is prohibited.
6. The proposal must comply with all provisions in Chapter 14.70 EMC, Flood Hazard Areas, and Chapter 14.80 EMC, Landslide Hazard Areas.
B. Application Requirements. An application for a reasonable use exception shall include the following information:
1. A description of the areas of the site that contains a critical area, buffers, or within setbacks required under this title;
2. A description of the amount of the site that is within setbacks required by other standards of the zoning code;
3. A description of the proposed development, including a site plan;
4. An analysis of the impact that the amount of development described in subsection (B)(3) of this section would have on the critical area(s);
5. An analysis of whether any other reasonable use with less impact on the critical area(s) and associated buffer(s) is possible;
6. A design of the proposal so that the amount of development proposed as reasonable use will have the least impact practicable on the critical area(s);
7. An analysis of the modifications needed to the standards of this title to accommodate the proposed development;
8. A description of any modifications needed to the required front, side, and rear setbacks; building height; and buffer widths to provide for a reasonable use while providing greater protection to the critical area(s);
9. Such other information as the department determines is reasonably necessary to evaluate the issue of reasonable use as it relates to the proposed development, such as but not limited to a wetland analysis report, mitigation plan, habitat evaluation study, and/or a buffer enhancement plan.
C. Review.
1. Public Hearing Required. The department shall set a date for a public hearing before the hearing examiner after all requests for additional information or plan correction, as set forth in EMC 18.40.150, have been satisfied. The public hearing shall follow the procedures set forth in EMC 18.40.190, Notice of public hearing.
2. Decision Criteria. The hearing examiner may approve a reasonable use exception if the examiner determines the following criteria are met:
a. The proposed development is located on an existing lot of record that was created prior to the effective date of the ordinance codified in this title and there is no other reasonable use or feasible alternative to the proposed development with less impact on the critical area(s) and/or associated buffers including phasing or project implementation, change in timing of activities, buffer averaging or reduction, setback variance, relocation of driveway, or placement of structure.
b. The development cannot be located outside the critical area and/or its associated buffer due to topographic constraints of the parcel or size and/or location of the parcel in relation to the limits of the critical area and/or its associated buffer and a building setback variance or road variance has been reviewed, analyzed, and rejected as a feasible alternative.
c. The proposed development does not pose a threat to the public health, safety, or welfare on or off the site, nor shall it damage nearby public or private property.
d. Any alteration of the critical area(s) shall be the minimum necessary to allow for reasonable use of the property.
e. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line thereby creating the undevelopable condition after February 1, 1992.
f. The proposal mitigates the impacts on the critical area(s) to the maximum extent possible, while still allowing reasonable use of the site.
g. The proposed activities will not jeopardize the continued existence of species listed by the state or federal government as endangered, threatened, sensitive, or documented priority species or priority habitats.
h. The proposed activities will not cause significant degradation of groundwater or surface water quality.
3. Additional Decision Criteria for Wetlands and Associated Buffers. In addition to the decision criteria listed in subsection (C)(2) of this section, a reasonable use exception for wetlands and associated buffers shall also demonstrate that the proposed activity will result in minimum feasible alteration or impairment to the wetland's functional characteristics and existing contours, vegetation, fish and wildlife resources, and hydrological conditions.
4. Additional Decision Criteria for Critical Fish and Wildlife Habitat Areas and Associated Buffers. In addition to the decision criteria listed in subsection (C)(2) of this section, the hearing examiner may approve a reasonable use exception for critical fish and wildlife habitat areas and associated buffers if the examiner determines that the proposal complies with the mitigation measures as set forth in EMC 14.40.050.
5. Examiner's Authority. The examiner has the authority to approve an application for a reasonable use exception, approve with additional requirements above those specified in this title, require modification of the proposal to comply with specified requirements or local conditions, or deny the application if it fails to comply with the requirements of this title.
6. Required Written Findings and Determinations. A reasonable use exception may be approved by the examiner only if all of the following findings can be made regarding the proposal and are supported by the record:
a. The granting of the proposal will not be detrimental to the public health, safety, and general welfare.
b. The granting of the proposal will not be injurious to the property, regulated critical area(s), or improvements adjacent to and in the vicinity of the proposal.
c. The proposal minimizes adverse environmental impacts to the maximum practicable extent and provides mitigation to offset any impacts.
d. The granting of the proposal is consistent and compatible with the goals, objectives, and policies of the comprehensive plan; community plan, if applicable; and the provisions of this title. (Ord. 02-200 § 2).
14.20.060 Current use assessment program.
A. An owner of agricultural land, timberland, or open space desiring current use classification under Chapter 84.34 RCW may file for such current use classification with the Pierce County assessor-treasurer's office.
B. The department shall notify the assessor-treasurer's office when restrictions on development occur on a particular site.
C. The assessor-treasurer's office shall consider the critical areas and buffering requirements of this title in determining the fair market value of land. Any owner of an undeveloped buffer which has been placed in a separate tract or tracts, protective easement, public or private land trust dedication, or other similarly preserved area shall have that portion of land assessed consistent with those restrictions. (Ord. 02-200 § 2).