Chapter 16.01
GENERAL PROVISIONS

Sections

16.01.010    Title.

16.01.020    Application.

16.01.030    Purpose.

16.01.040    Authority.

16.01.050    Definitions.

16.01.060    Rules of construction.

16.01.070    Liability.

16.01.080    Violation and penalty.

16.01.090    Severability.

16.01.100    Variance procedure.

16.01.110    Appeal.

16.01.010 Title.

This Title shall be entitled “Environment.” This chapter shall be entitled “General Provisions.” [Ord. 1583 § 1, 2013.]

16.01.020 Application.

This chapter and the procedures adopted under this chapter shall be applicable to all chapters within this Title. [Ord. 1583 § 2, 2013.]

16.01.030 Purpose.

The purpose of this Title is to implement the State Environmental Policy Act, the critical area requirements of chapter 36.70A RCW, the floodplain management provisions of chapter 86.16 RCW, and the State Shoreline Act as set forth in chapter 90.58 RCW. [Ord. 1583 § 3, 2013.]

16.01.040 Authority.

This Title is adopted pursuant to chapters 43.21C, 36.70A, 86.16 and 90.58 RCW and other applicable laws. [Ord. 1583 § 4, 2013.]

16.01.050 Definitions.

As used in this Title, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings.

“Aquifer” means a consolidated or unconsolidated ground water-bearing geologic formation or formations that contain enough saturated permeable material to yield significant quantities of water to wells.

“Area of shallow flooding” means an area designated as AO, or AH Zone on the flood insurance rate map (FIRM). AO Zones have base flood depths that range from one to three feet above the natural ground; a clearly defined channel does not exist; the path of flooding is unpredictable and indeterminate; and, velocity flow may be evident. AO is characterized as sheet flow; AH indicates ponding, and is shown with standard base flood elevations.

“Area of special flood hazard” means the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year. Designation on maps always includes the letters A or V.

“Base flood” means the flood having a one percent chance of being equaled or exceeded in any given year (also referred to as the “100-year flood”). Designated on flood insurance rate maps by the letters A or V.

“Basement” means any area of the building having its floor sub-grade (below ground level) on all sides.

“Bluff” means a steep slope which abuts and rises from Puget Sound. Bluffs contain slopes predominantly in excess of 40 percent, although portions may be less than 40 percent. Bluffs occur in the area north of South 222nd Street and south of South 232nd Street. The toe of the bluff is the beach of Puget Sound. The top of a bluff is typically a distinct line where the slope abruptly levels out. Where there is no distinct break in slope, the slope is either the line of vegetation separating the unvegetated slope from the vegetated uplands plateau or, when the bluff is vegetated, the point where the bluff slope diminishes to less than 15 percent.

“Breakaway walls” means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.

“Buffer” means either: an area adjacent to hillsides which provides the margin of safety through protection of slope stability, attenuation of surface water flows and landslide, seismic, and erosion hazards reasonably necessary to minimize risk to the public from loss of life, well-being, or property damage resulting from natural disasters; or an area adjacent to a stream or wetland which is an integral part of the stream or wetland ecosystem, providing shade; input of organic debris and coarse sediments; room for variation in stream or wetland boundaries; habitat for wildlife; impeding the volume and rate of runoff; reducing the amount of sediment, nutrients, and toxic materials entering the stream or wetland; and protection from harmful intrusion to protect the public from losses suffered when the functions and values of stream and wetland resources are degraded.

“Building” means any structure used or intended for supporting or sheltering any use or occupancy, as well as any structure having a roof, but excluding all forms of vehicles even though immobilized. When a use is required to be within a building, or where special authority granted pursuant to this Title requires that a use shall be within an entirely enclosed building, then the term “building” means one so designed and constructed that all exterior walls of the structure shall be solid from the ground to the roof line, and shall contain no openings except for windows and doors which are designed so that they may be closed.

“Building setback line” means a line beyond which the footprint or foundation of a building shall not extend.

“Certified arborist” means an individual who has achieved a level of knowledge in the art and science of tree care through experience and by passing a comprehensive examination administered by the International Society of Arboriculture or urban forestry program.

“Clearing” means the destruction and removal of vegetation by burning, mechanical, or chemical methods.

“Closed record appeal” means an administrative appeal on the record to a local government body or officer, including the legislative body, following an open record hearing on a project permit application when the appeal is on the record with no or limited new evidence or information allowed to be submitted and only appeal argument allowed.

“Coastal high hazard area” means an area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources. The area is designated on the FIRM as Zone V1-30, VE or V.

“Commercial and recreational shellfish areas” means areas that include all public and private tidelands or bedlands suitable for shellfish harvest, including shellfish protection districts established pursuant to chapter 90.72 RCW.

“Compensation” means the replacement, enhancement, or creation of an undevelopable environmentally critical area equivalent in functions, values, and size to those being altered or lost from development.

“Creation (establishment)” means the manipulation of the physical, chemical, or biological characteristics present to develop a wetland on an upland or deepwater site where a wetland did not previously exist. “Establishment” results in a gain in wetland acres. Activities typically involve excavation of upland soils to elevations that will produce a wetland hydroperiod, create hydric soils, and support the growth of hydrophytic plant species.

“Critical aquifer recharge areas (CARAs)” mean those areas with a critical recharging effect on aquifers used for potable water, as defined by WAC 365-190-030(2). CARAs have prevailing geologic conditions associated with infiltration rates that create a high potential for contamination of ground water resources or contribute significantly to the replenishment of ground water. Aquifer recharge areas shall be rated as having high, moderate, or low susceptibility based on soil permeability, geologic matrix, infiltration, and depth to water as determined by the criteria established by the state Department of Ecology.

These areas include but are not limited to the following:

(a) Wellhead Protection Areas. Wellhead protection areas may be defined by the boundaries of the 10-year time of ground water travel or boundaries established using alternate criteria approved by the Washington State Department of Health in those settings where ground water time of travel is not a reasonable delineation criterion, in accordance with WAC 246-290-135.

(b) Sole Source Aquifers. Sole source aquifers are areas that have been designated by the U.S. Environmental Protection Agency pursuant to the Federal Safe Drinking Water Act.

(c) Susceptible Ground Water Management Areas. Susceptible ground water management areas are areas that have been designated as moderately or highly vulnerable or susceptible in an adopted ground water management program developed pursuant to chapter 173-100 WAC.

(d) Special Protection Areas. Special protection areas are those areas defined by WAC 173-200-090.

(e) Moderately or Highly Vulnerable Aquifer Recharge Areas. Aquifer recharge areas that are moderately or highly vulnerable to degradation or depletion because of hydrogeologic characteristics are those areas delineated by a hydrogeologic study prepared in accordance with the state Department of Ecology guidelines.

(f) Moderately or Highly Susceptible Aquifer Recharge Areas. Aquifer recharge areas moderately or highly susceptible to degradation or depletion because of hydrogeologic characteristics are those areas meeting the criteria established by the state Department of Ecology.

“Critical areas” includes the following areas and ecosystems: (a) wetlands; (b) areas with a critical recharging effect on aquifers used for potable water; (c) fish and wildlife habitat conservation areas; (d) frequently flooded areas; and (e) geologically hazardous areas. “Fish and wildlife habitat conservation areas” does not include such artificial features or constructs as irrigation delivery systems, irrigation infrastructure, irrigation canals, or drainage ditches that lie within the boundaries of and are maintained by a port district or an irrigation district or company. RCW 36.70A.030(5).

“Developable area” means the “site area” less the following areas:

(a) Areas within a project site that are required to be dedicated for public rights-of-way;

(b) Environmentally critical areas and their buffers to the extent they are required by the City to remain undeveloped;

(c) Areas required for storm water control facilities, including but not limited to retention/detention ponds/vaults, biofiltration swales and setbacks from such ponds and swales;

(d) Areas required by the City to be dedicated or reserved as on-site recreation areas;

(e) Other areas, excluding setbacks, required by the City to remain undeveloped.

“Developed or partially developed lot” means a lot or parcel of land upon which a usable structure is located.

“Development” means any manmade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, clearing, grading, paving, excavation, drilling operations or storage of equipment or materials located within the area of special flood hazard.

“Development activity” means any work, condition, or activity which requires a permit or approval under Title 11, 12, 14, 16, 17 or 18 DMMC.

“Development site” means the entire lot, series of lots, or parcels on which a development is located or is proposed to be located, including all contiguous undeveloped lots or parcels which are under common ownership with the developed lots on or subsequent to June 30, 1990. This definition only applies to chapter 16.10 DMMC.

“Drainage facility” means the system of collecting, conveying, and storing surface and storm water runoff. Drainage facilities shall include but not be limited to all surface and storm water runoff conveyance and containment facilities including streams, pipelines, channels, ditches, wetlands, closed depressions, infiltration facilities, retention/detention facilities, erosion/sedimentation control facilities, and other drainage structures and appurtenances, both natural and manmade.

“Enhancement” means the manipulation of the physical, chemical, or biological characteristics of a wetland site to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present. Enhancement is undertaken for specified purposes such as water quality improvement, floodwater retention, or wildlife habitat. Enhancement results in a change in some wetland functions and can lead to a decline in other wetland functions, but does not result in a gain in wetland acres. Activities typically consist of planting vegetation, controlling nonnative or invasive species, modifying site elevations or the proportion of open water to influence hydroperiods, or some combination of these activities.

Environmentally Critical Areas. See “Critical areas.”

“Erosion hazard areas” means at least those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “moderate to severe,” “severe,” or “very severe” rill and inter-rill erosion hazard. Erosion hazard areas are also those areas impacted by shore land and/or stream bank erosion and those areas within a river’s channel migration zone.

“Exemption” means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.

“Existing manufactured home park or subdivision” means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the adopted floodplain management regulations.

“Expansion to an existing manufactured home park or subdivision” means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).

“Fish and wildlife habitat conservation” means land management for maintaining species in suitable habitats within their natural geographic distribution so that isolated subpopulations are not created. Fish and wildlife habitat conservation areas include:

(a) Areas with which state or federally designated endangered, threatened, and sensitive species have a primary association;

(b) State priority habitats and areas associated with state priority species;

(c) Habitats and species of local importance;

(d) Commercial and recreational shellfish areas;

(e) Kelp and eelgrass beds identified by the Washington Department of Natural Resources;

(f) Herring and smelt spawning areas as outlined in chapter 220-110 WAC and the Puget Sound Environmental Atlas as presently constituted or as may be subsequently amended;

(g) Naturally occurring ponds under 20 acres and their submerged aquatic beds that provide fish or wildlife habitat;

(h) Waters of the state as defined in Title 222 WAC;

(i) Lakes, ponds, streams, and rivers planted with game fish by a governmental or tribal entity;

(j) State natural area preserves and natural resource conservation areas as defined, established, and managed by the Washington State Department of Natural Resources;

(k) Areas of rare plant species and high quality ecosystems as identified by the Washington State Department of Natural Resources through the Natural Heritage Program; and

(l) Land useful or essential for preserving connections between habitat blocks and open spaces as determined by the City Manager or the City Manager’s designee.

“Flood” or “flooding” means a general and temporary condition of partial or complete inundation of normally dry land areas from:

(a) The overflow of inland or tidal waters; and/or

(b) The unusual and rapid accumulation of runoff of surface waters from any source.

“Flood insurance rate map (FIRM)” means the official map on which the Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.

“Flood insurance study (FIS)” means the official report provided by the Federal Insurance Administration that includes flood profiles, the flood insurance rate maps, and the water surface elevation of the base flood.

“Floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.

“Geologically hazardous areas” means areas that because of their susceptibility to erosion, sliding, earthquake, or other geological events are not suited to the siting of commercial, residential, or industrial development consistent with the public health or safety concerns.

(a) Erosion hazard;

(b) Landslide hazard;

(c) Seismic hazard; and

(d) Other geological events including tsunamis, mass wasting, debris flows, rock falls, and differential settlement.

“Hazardous substance” means any solid, liquid, gas, or sludge, including any material, substance, product, commodity, or waste, regardless of quantity, that exhibits any characteristics or criteria of hazardous waste as described in WAC 173-303-090, 173-303-101, 173-303-102, or 173-303-103.

“Hazardous waste” means those solid wastes designated by 40 C.F.R. Part 261, and regulated as hazardous and/or mixed waste by the United States EPA, as described in WAC 173-303-040.

“Hillsides” means geological features of the landscape having slopes of 15 percent and greater. To differentiate between levels of hillside protection and the application of development standards, the City categorizes hillsides into four groups: hillsides of at least 15 percent but less than 25 percent; hillsides of at least 25 percent but less than 40 percent; hillsides of 40 percent slope and greater; and hillsides which are ravine sidewalls or bluffs.

“Land clearing” means the act of removing, topping or destroying trees, topsoil, or ground cover from any undeveloped or partially developed lot, environmentally critical areas, shoreline environments, public lands, or public right-of-way.

“Landslide” means an episodic downslope movement of a mass of soil or rock that includes but is not limited to rockfalls, slumps, mudflows, and earthflows.

“Landslide hazard areas” are those areas of the City potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following:

(a) Areas of historic failures, such as:

(i) Those areas delineated by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “severe” limitation for building site development;

(ii) Those areas mapped by the Washington State Department of Ecology (Coastal Zone Atlas) or the Washington State Department of Natural Resources (slope stability mapping) as unstable (U or class 3), unstable old slides (UOS or class 4), or unstable recent slides (URS or class 5); or

(iii) Areas designated as quaternary slumps, earthflows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or Washington State Department of Natural Resources;

(b) Any area with a combination of:

(i) Slopes greater than 15 percent;

(ii) Impermeable soils (usually silt and clay) frequently interbedded with granular permeable soils (usually sand and gravel); and

(iii) Springs or ground water seepage;

(c) Any area which has shown movement during the Holocene epoch (from 10,000 years ago to present) or which is underlain by mass wastage debris of that age;

(d) Any area potentially unstable as a result of rapid stream incision, stream bank erosion, or undercutting by wave action;

(e) Any area designated as Class III landslide hazard area by the “Map Showing Relative Slope Stability in Part of West-Central King County, Washington, Map I-852-A, U.S. Geological Survey Miscellaneous Geologic Investigations” as presently constituted or as may be subsequently amended;

(f) Slopes that are parallel or subparallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials;

(g) Slopes having gradients steeper than 80 percent subject to rock fall during seismic shaking;

(h) Areas located in a canyon or on an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding; and

(i) Any area with a slope of 40 percent or steeper and with a vertical relief of 10 or more feet except areas composed of consolidated rock. A slope is delineated by establishing its toe and top and is measured by averaging the inclination over at least 10 feet of vertical relief.

“Local administrator” means the City Manager or the City Manager’s designee.

“Lowest floor” means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access, or storage in an area other than a basement area, is not considered a building’s lowest floor; provided, that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements of this Title found at Section 5.2-1(2), (i.e., provided there are adequate flood ventilation openings).

“Manufactured home” means a structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term “manufactured home” does not include a “recreational vehicle.”

“Manufactured home park or subdivision” means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.

“Mean sea level” means the average height of the Puget Sound for all stages of the tide.

“Mitigation” means the use of any combination or all of the following actions:

(a) Avoiding impacts to environmentally critical areas 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 to avoid or reduce impacts;

(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environmentally critical area;

(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the development proposal;

(e) Compensating for the impact by replacing or enhancing environmentally critical areas, or providing substitute resources; and

(f) Monitoring the impact and taking appropriate corrective measures.

“Monitoring” means the collection and analysis of data by various methods for the purposes of understanding and documenting changes in natural ecosystems and features, and includes gathering baseline data, evaluating the impacts of development proposals on the biological, hydrologic, and geologic elements of such systems, and assessing the performance of mitigation measures.

“Native vegetation” means plant species which are indigenous to the area in question.

“New construction” means structures for which the “start of construction” commenced on or after July 1, 1992.

“New manufactured home park or subdivision” means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of adopted floodplain management regulations.

“Nonconforming use” means a use which was lawfully established and maintained but which, because of the application of this Title to it, no longer conforms to the use regulations of the zone in which it is located as defined by this Title.

“Open record hearing” means a hearing, conducted by a single hearing body or officer authorized by the local government to conduct such hearings, that creates the local government’s record through testimony and submission of evidence and information, under procedures prescribed by the local government by ordinance or resolution. An open record hearing may be held prior to a local government’s decision on a project permit to be known as an “open record predecision hearing.” An open record hearing may be held on an appeal, to be known as an “open record appeal hearing,” if no open record predecision hearing has been held on the project permit.

“Ordinary high water mark” means the mark that will be found by examining the bed and banks of a stream or shoreline and ascertaining where the presence and action of waters are so common and usual, and so long maintained in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to topography and vegetation.

“Protection/maintenance (preservation)” means removing a threat to, or preventing the decline of, wetland conditions by an action in or near a wetland. This includes the purchase of land or easements, repairing water control structures or fences, or structural protection such as repairing a barrier island. This term also includes activities commonly associated with the term “preservation.” Preservation does not result in a gain of wetland acres, may result in a gain in functions, and will be used only in exceptional circumstances.

“Public meeting” means an informal meeting, hearing, workshop, or other public gathering of people to obtain comments from the public or other agencies on a proposed project permit prior to the local government’s decision. A public meeting may include, but is not limited to, a design review or architectural control board meeting, a special review district or community council meeting, or a scoping meeting on a draft environmental impact statement. A public meeting does not include an open record hearing. The proceedings at a public meeting may be recorded and a report or recommendation may be included in the local government’s project permit application file.

“Qualified professional” means a person with experience and training in the pertinent scientific discipline, and who is a qualified scientific expert with expertise appropriate for the relevant environmentally critical area subject in accordance with WAC 365-195-905(4). A qualified professional must have obtained a B.S. or B.A. or equivalent degree in biology, engineering, environmental studies, fisheries, geomorphology, or related field, and two years of related work experience.

(a) A qualified professional for habitats must have a degree in biology and professional experience related to the subject species.

(b) A qualified professional for wetlands must have a degree in biology, must have taken a wetlands delineation course approved by the Army Corps of Engineers, and must have professional experience.

(c) A qualified professional for a geological hazard must be a professional engineer or geologist, licensed in the state of Washington.

(d) A “qualified professional for critical aquifer recharge areas” means a hydrogeologist, geologist, engineer, or other scientist with experience in preparing hydrogeologic assessments.

“Ravine sidewall” means a steep slope which abuts and rises from the valley floor of a stream and which was created by the wearing action of the stream. Ravine sidewalls contain slopes predominantly in excess of 40 percent, although portions may be less than 40 percent. The toe of a ravine sidewall is the stream valley floor. The top of a ravine sidewall is typically a distinct line where the slope abruptly levels out. Where there is no distinct break in slope, the top is where the slope diminishes to less than 15 percent. Minor natural or manmade breaks in the slope of ravine sidewalls shall not be considered as the top. Benches with slopes less than 15 percent and containing developed or developable areas pursuant to chapter 16.10 DMMC shall be considered as the top.

“Recreational vehicle” means a vehicle:

(a) Built on a single chassis;

(b) Four hundred square feet or less when measured at the largest horizontal projection;

(c) Designed to be self-propelled or permanently towable by a light duty truck; and

(d) Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

“Restoration” means the return of an environmentally critical area to a state in which its functions, values, and size approach or exceed its unaltered state as closely as possible.

“Restoration, wetlands” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former or degraded wetland. For the purpose of tracking net gains in wetland acres, restoration is divided into:

(a) “Re-establishment” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former wetland. Re-establishment results in a gain in wetland acres (and functions). Activities could include removing fill material, plugging ditches, or breaking drain tiles.

(b) “Rehabilitation” means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of repairing natural or historic functions of a degraded wetland. Rehabilitation results in a gain in wetland function but does not result in a gain in wetland acres. Activities could involve breaching a dike to reconnect wetlands to a floodplain or return tidal influence to a wetland.

“Retaining wall” means any wall used to resist the lateral displacement of any material.

“Seismic hazard areas” means those areas subject to severe risk of earthquake damage as a result of seismically induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. One indicator of potential for future earthquake damage is a record of earthquake damage in the past. Ground shaking is the primary cause of earthquake damage in Washington. The strength of ground shaking is affected primarily by:

(a) The magnitude of an earthquake;

(b) The distance from the source of an earthquake;

(c) The type of thickness of geologic materials at the surface; and

(d) The type of subsurface geologic structure.

Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density usually in association with a shallow ground water table. Known seismic hazard areas are mapped in the “Washington State Department of Natural Resources, Geologic Map GM-41, Liquefaction Susceptibility for the Des Moines and Renton 7.5-minute Quadrangles, Washington,” and “Washington State Department of Natural Resources, Geologic Map GM-43, Liquefaction Susceptibility for the Auburn and Poverty Bay 7.5-minute Quadrangles, Washington.”

“Shorelines of the state” means lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and watercourses within the jurisdiction of the state of Washington, as classified in chapter 90.58 RCW.

“Significant trees” means healthy evergreen trees six inches in diameter or greater as measured at 54 inches above the ground, and healthy deciduous trees (excluding alders, European ashes, cottonwoods and willows) eight inches in diameter or greater as measured at 54 inches above the ground.

“Slope” means an inclined ground surface, the inclination of which is expressed as a ratio (percentage) of vertical distance to horizontal distance by the following formula:

 

vertical distance

 

x 100 = % slope

horizontal distance

 

Another method of measuring the inclination of the land surface is by measuring the angle, expressed in degrees, of the surface above a horizontal plane. The following chart shows the equivalents between these two methods of measurement for several slopes:

Percent Slope

Angle of Inclination

8.7

5.0°

15.0

8.5°

25.0

14.0°

30.0

16.7°

40.0

21.8°

50.0

26.6°

100.0

45.0°

“Small trees” means evergreen trees that are less than six inches in diameter as measured at 54 inches above the ground and deciduous trees that are less than eight inches in diameter as measured at 54 inches above the ground.

“Special environmental study” means a technical report prepared by a qualified professional. Special environmental studies are intended to evaluate past and present environmental conditions of certain properties, potential environmental impacts associated with certain development proposals, and as appropriate, recommend mitigation measures that can be expected to lessen the severity of identified adverse environmental impacts. The content and scope of required special environmental studies shall be as specified by the Planning, Building and Public Works Director.

“Start of construction” includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the permit date. The “actual start” means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the “actual start of construction” means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building.

“State designated endangered, threatened, and sensitive species” means those fish and wildlife species native to the state of Washington identified by the Washington Department of Fish and Wildlife, that are in danger of extinction, threatened to become endangered, vulnerable, or declining and are likely to become endangered or threatened in a significant portion of their range within the state without cooperative management or removal of threats. State designated endangered, threatened, and sensitive species are periodically recorded in WAC 232-12-014 (state endangered species) and WAC 232-12-011 (state threatened and sensitive species). The state Department of Fish and Wildlife maintains the most current listing and should be consulted for current listing status. This section shall not apply to hair seals and sea lions that are threatening to damage or are damaging commercial fishing gear being utilized in a lawful manner or when said mammals are damaging or threatening to damage commercial fish being lawfully taken with commercial gear.

“State priority habitats and areas associated with state priority species” means those areas considered priorities for conservation and management. Priority species require protective measures for their perpetuation due to their population status, sensitivity to habitat alteration, and/or recreational, commercial, or tribal importance. Priority habitats are those habitat types or elements with unique or significant value to a diverse assemblage of species. A priority habitat may consist of a unique vegetation type or dominant plant species, a described successional stage, or a specific structural element. Priority habitats and species are identified by the state Department of Fish and Wildlife.

“Stream” means an area where surface waters flow sufficiently to produce a defined channel or bed. A defined channel or bed is indicated by hydraulically sorted sediments or the removal of vegetative litter or loosely rooted vegetation by the action of moving water. Stream channels or beds show clear evidence of the passage of water and include, but are not limited to, bedrock channels, gravel beds, sand and silt beds, and defined channel swales. The channel or bed need not contain water year-round. This definition is not meant to include irrigation ditches, canals, storm or surface water runoff devices, or other entirely artificial watercourses unless they are used by salmonids or used to convey streams naturally occurring prior to construction. Swales, which are shallow drainage conveyances with relatively gentle side slopes and generally with flow depths less than one foot, shall be considered streams when hydrologic and hydraulic analyses done pursuant to a development proposal predict formation of a defined channel after development. To differentiate between levels of stream and marine shoreline protection and the application of development standards, streams are classified according to the Washington State Department of Natural Resources Forest Practices Board water typing system specified in WAC 222-16-030 as follows:

(a) “Type S water” means all waters inventoried as “shorelines of the state,” including periodically inundated areas of their associated wetlands, under chapter 90.58 RCW and the rules promulgated pursuant to chapter 90.58 RCW;

(b) “Type F water” means segments of natural waters other than Type S waters, which contain fish or fish habitat, including waters diverted for use by a federal, state or tribal fish hatchery from the point of diversion for 1,500 feet or the entire tributary if the tributary is highly significant for protection of downstream water quality;

(c) “Type Np water” means all segments of natural waters that are not Type S or F waters. These are perennial nonfish habitat streams that are physically connected to Type S or F waters by an aboveground channel system, stream or wetland. Perennial streams are waters that do not go dry any time of a year of normal rainfall. However, for the purpose of water typing, Type Np waters include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow;

(d) “Type Ns water” means all segments of natural waters that are not Type S, F, or Np waters. These are seasonal, nonfish habitat streams in which surface flow is not present for at least some portion of a year of normal rainfall and are not located downstream from any stream reach that is a Type Np water. Ns waters must be physically connected by an aboveground channel system to Type S, F, or Np waters.

“Storage tank” means a container for the storage of a gas or liquid.

“Stream corridor” means a perennial, intermittent, or ephemeral stream including its channel bottom, lower and upper banks, area beyond the top of the upper bank which influences the stream and is influenced by the presence of water, and the vegetation inhabiting this area. This area is known as the “riparian zone” which is an area transitional between aquatic and terrestrial (upland) ecosystems having distinct vegetation and soil characteristics. Riparian zones are most commonly recognized by bottomland, flood plain, and streambank vegetation. In developed watersheds, portions of the stream corridor may currently be in a partially culverted or channelized condition by artificial conveyance systems.

“Structure” means a walled and roofed building.

“Substantial improvement” means a repair, reconstruction, or improvement of a structure made during a three-year period, the cumulative cost of which equals or exceeds 50 percent of the market value of the structure either:

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

(b) If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition, “substantial improvement” is considered to occur when the first alteration of a wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

(c) The term does not, however, include either:

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

(ii) An alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places.

“Surface Water Design Manual for the City of Des Moines” means the King County, Washington “Surface Water Design Manual,” including all subsequent revisions, adopted by reference as the “Surface Water Design Manual for the City of Des Moines,” and is referred to in this Title as “Surface Water Design Manual.”

“Tree” means a living woody plant characterized by one main stem or trunk and many branches, and having a diameter of four inches or more measured at 24 inches above ground level.

“Tree pruning” means to cut branches from a tree using practices approved by the International Society of Arboriculture to maintain a tree in a healthy and safe condition.

“Tree topping” means the indiscriminate cutting of tree branches to stubs or lateral branches that are not large enough to assume the terminal role. Other names for topping include but are not limited to “heading,” “tipping,” “hat-racking,” and “rounding over.”

“Undeveloped lot” means a lot or parcel of land upon which no usable structure exists.

“Upper bank” is that portion of the topographic cross-section of a stream which extends from the break in the general slope of the surrounding land to the normal high water line.

“Use” means the nature of the occupancy, the type of activity, or the character and form of improvements to which land is devoted or may be devoted.

“Vegetation” means the general plant life and the ground cover provided by plants, including trees.

“Water dependent” means a structure for commerce or industry that cannot exist in any other location and is dependent on the water by reason of the intrinsic nature of its operations.

“Wetland” or “wetlands” means areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, canals, detention facilities, waste water 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. Wetlands may include those artificial wetlands intentionally created for nonwetland areas created to mitigate conversion of wetlands.

To differentiate between levels of wetland protection and the application of development standards, wetlands shall be rated according to the “Washington State Wetland Rating System for Western Washington” (Ecology Publication No. 14-06-29, October 2014) or as revised by the Department of Ecology. Wetland rating categories shall be applied as the wetland exists at the time of the adoption of this chapter or as it exists at the time of an associated permit application. Wetland rating categories shall not change due to illegal modifications.

(a) Category I. Category I wetlands represent a unique or rare wetland type, are more sensitive to disturbance than most wetlands, are relatively undisturbed and contain some ecological attributes that are impossible to replace within a human lifetime, or provide a very high level of functions. Category I wetlands are:

(i) Relatively undisturbed estuarine wetlands larger than one acre;

(ii) Wetlands that have been identified by the Washington Natural Heritage Program as important ecosystems for maintaining plant diversity;

(iii) Bogs;

(iv) Mature and old-growth forested wetlands over one acre in size;

(v) Wetlands in coastal lagoons;

(vi) Interdunal wetlands larger than one acre and score high for habitat; or

(vii) Wetlands that perform functions at high levels.

(b) Category II. Category II wetlands are difficult, though not impossible, to replace, and provide high levels of some functions. These wetlands occur more commonly than Category I wetlands, but they still need a relatively high level of protection. Category II wetlands are:

(i) Estuarine wetlands smaller than one acre, or those that are disturbed and larger than one acre;

(ii) Wetlands with a moderately high level of functions;

(iii) Interdunal wetlands larger than one acre.

(c) Category III. Generally, wetlands in this category may have been disturbed in some way and are often less diverse or more isolated from other natural resources in the landscape than Category II wetlands. Category III wetlands are:

(i) Wetlands with a moderate level of functions;

(ii) Can often be adequately replaced with a well-planned mitigation project; or

(iii) Interdunal wetlands between one-tenth and one acre in size.

(d) Category IV. Category IV wetlands have the lowest levels of functions and are often heavily disturbed. These are wetlands that should be replaceable, and in some cases may be improved. However, experience has shown that replacement cannot be guaranteed in any specific case. These wetlands may provide some important functions, and should be protected to some degree. [Ord. 1649 § 1, 2016; Ord. 1611 § 13, 2014; Ord. 1583 § 5, 2013.]

16.01.060 Rules of construction.

The following rules of construction shall apply unless inconsistent with the obvious meaning in the context of the provision.

(1) Tense. Words used in the present tense shall include the future tense.

(2) Number. Words used in the singular shall include the plural, and words used in the plural shall include the singular.

(3) Headings. In the event that there is any conflict or inconsistency between the heading of a chapter, section, or paragraph of this code, and the content thereof, the said heading shall not affect the scope, meaning, or intent of the content.

(4) Citations. Citations to state or federal laws shall mean that law as presently constituted or as it may be subsequently amended in the future. [Ord. 1583 § 6, 2013.]

16.01.070 Liability.

It is the specific intent of this Title and procedures adopted under this Title to place the obligation of complying with the requirements of this chapter upon the permittee, and no provision is intended to impose any duty upon the City, or any of its officers, employees, or agents. Nothing contained in this Title is intended to be or shall be construed to create or form the basis for liability on the part of the City, or its officers, employees, or agents, for any injury or damage resulting from the failure of the permittee to comply with the provisions of this Title, or by reason or in consequence of any act or omission in connection with the implementation or enforcement of this Title or any procedures adopted under this Title by the City, its officers, employees, or agents. [Ord. 1583 § 7, 2013.]

16.01.080 Violation and penalty.

(1) Violation. No person shall violate or fail to comply with the provisions of this Title.

(2) Civil Infraction. A violation or a failure to comply with the provisions of this Title is a civil infraction and a violator may be penalized as is more specifically set forth in chapter 1.24 DMMC, Civil Infractions.

(3) Civil Violation and Penalty. A violation or a failure to comply with the provisions of this Title is further a civil violation and may be penalized and/or abated as is set forth in chapter 1.28 DMMC, Civil Violations and Penalties.

(4) Criminal Penalty. In addition to or as an alternative to any other penalty provided in this Title or by law, a person convicted of a violation of this Title is guilty of a gross misdemeanor. Upon conviction a person may also be ordered to abate, discontinue or correct a violation of this Title.

(5) Superior Court – Civil Action. In addition to or as an alternative to any other penalty provided in this Title or by law, a violation or a failure to comply with the provisions of this Title may be enforced by a civil action filed in King County Superior Court in any manner allowed by law. [Ord. 1583 § 8, 2013.]

16.01.090 Severability.

The provisions of this Title are severable. If any section, sentence, clause or phrase of this code is adjudged by a court of competent jurisdiction to be invalid, the decision shall not affect the validity of the remaining portions of the code. [Ord. 1583 § 9, 2013.]

16.01.100 Variance procedure.

(1) All applications for variances from requirements set forth in this Title shall first be filed with the Hearing Examiner pursuant to chapters 18.20 and 18.24 DMMC.

(2) A variance shall not be granted by the Hearing Examiner unless the Hearing Examiner finds that the applicant can demonstrate that compliance would create an undue hardship. For purposes of this Title, undue hardship is intended to mean a technological or environmental difficulty associated with the particular facility or with the particular real property involved.

(3) When granting a variance, the Hearing Examiner may attach conditions to the granting of said variance including placing a time limit on the duration of such variance. [Ord. 1583 § 10, 2013.]

16.01.110 Appeal.

Appeals of decisions made pursuant to this Title shall be as set forth in the applicable chapter and pursuant to chapter 18.20 DMMC. [Ord. 1583 § 11, 2013.]