Chapter 14.30
USE AND ACTIVITY REGULATIONS
Sections:
14.30.020 Regulated uses and activities.
14.30.040 Nonconforming uses and structures.
14.30.050 Reasonable use exceptions.
14.30.060 Current use assessment program.
14.30.010 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 official zoning map unless specifically prohibited by this title. (Ord. 17-513 § 3 (Exh. A)).
14.30.020 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 any critical area and its buffer, unless exempted by EMC 14.30.030:
1. Removing, excavating, disturbing, or dredging soil, sand, gravel, minerals, organic matter, or materials of any kind;
2. Dumping, discharging, grading, or clearing and grading;
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, installing, demolishing, or altering the size of any structure or infrastructure, including manufactured and mobile homes;
6. Altering the character of a regulated area by destroying or altering vegetation through clearing, harvesting, cutting, intentional burning, shading, or planting;
7. The division of land;
8. The creation of hard surfaces; and
9. Any additional activities regulated in Chapter 14.80 EMC, Flood Hazard Areas. (Ord. 17-513 § 3 (Exh. A)).
14.30.030 Exemptions.
A. Individuals, organizations, or associated parties shall avoid potential impacts to critical areas and their buffers to the greatest degree feasible. To be exempt from this title does not give permission to degrade a critical area or its buffer or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area or its buffer that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the responsible party’s expense.
B. The following activities are exempt from the provisions of this title:
1. 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. “Operation and maintenance” includes vegetation management performed in accordance with BMPs that are a part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of ongoing maintenance, do not expand further into the critical area or buffer, are not the result of an expansion of the structure or utility, and do not directly impact an endangered or threatened species.
2. Normal maintenance or repair of existing structures or developments, including damage by accident, fire, or elements within the past three years. “Normal maintenance” includes those usual acts to prevent a decline, lapse, or cessation from a lawfully established condition. “Normal repair” means to restore a development to a state comparable to its original condition including, but not limited to, its size, shape, configuration, location, and external appearance, within three years after decay or partial destruction, except where repair causes substantial adverse effects to critical areas or their buffers. Replacement of a structure or development may be authorized as repair where such replacement is the common method of repair for the type of structure or development and the replacement structure or development is comparable to the original structure or development including, but not limited to, its size, shape, configuration, location, and external appearance and the replacement does not expand further into the critical area or buffer. Refer to EMC 14.30.040(A)(4) for requirements associated with repair of substantial damage of nonconforming structures.
3. 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.
4. 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.
5. 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.
6. Emergency actions necessary to prevent imminent threat or danger to public health or safety, or to public or private property, or serious environmental degradation.
a. 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.
b. 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 area.
c. After the emergency, the person or agency undertaking the action shall fully fund and conduct necessary restoration or mitigation for any impacts to the critical area and buffers resulting from the emergency action in accordance with an approved critical area report and mitigation plan. The person or agency undertaking the action shall apply for review, and the alteration, critical area report, and mitigation shall be reviewed by the department in accordance with the review procedures contained herein. Restoration or mitigation activities must be initiated within 90 days of the date of the emergency activity and both must be fully completed within one year.
7. Installation, construction, replacement, repair, operation or alteration of natural gas, cable and telecommunication facilities, electric facilities and lines, water, sewer or storm lines, pipes, mains, equipment, or appurtenances in publicly owned right-of-way, which may be within or adjacent to any critical areas or buffers, subject to full review and approval of the department, including any mitigation or restoration requirements established by the department.
8. 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.
9. 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:
a. Remediation or removal of hazardous or toxic substances;
b. Source control; and
c. Natural resource damage restoration.
10. Activities within a portion of a wetland buffer or fish and wildlife habitat conservation 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 conservation area. The department shall review the proposal to determine the likelihood of associated impacts.
11. Passive recreation such as hunting, hiking, fishing, and wildlife viewing that does not involve the construction of trails.
12. 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.
13. Forest practices conducted in accordance with the requirements of the Forest Practices Act (Chapter 76.09 RCW) and its rules, with the exception of the conversion of forest land to a use other than commercial forestry (Class IV conversions).
14. Existing and ongoing agricultural activities; provided, that they comply with the provisions of Chapter 14.80 EMC, Flood Hazard Areas, and implement the applicable BMP contained in the latest editions of the USDA Natural Resources Conservation Service Field Official Technical Guide; or develop a farm conservation plan in coordination with the local conservation district. The BMPs or farm plans should address potential impacts to critical areas from livestock, nutrient and farm chemicals, soil erosion and sediment control, and agricultural drainage infrastructure. The BMPs or farm plans should ensure that ongoing agricultural activities minimize their effects on water quality, riparian ecology, salmonid populations, and wildlife habitat. (Ord. 17-513 § 3 (Exh. A)).
14.30.040 Nonconforming uses and structures.
A. An established use or existing structure located in a wetland, fish and wildlife habitat conservation area, landslide or erosion hazard area, flood hazard area, and their associated buffers that was lawfully permitted prior to the effective date of this title, but which is not currently in compliance with this title, may continue subject to the following:
1. 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.
2. 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 14.30.030(B).
3. 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.
4. 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 14.30.030(B). 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.
B. The provisions of EMC 18.90.110 may also apply to nonconformities not expressly described in this chapter. (Ord. 17-513 § 3 (Exh. A)).
14.30.050 Reasonable use exceptions.
A. If the application of this chapter would deny all reasonable use of the property, the applicant may apply for a reasonable use exception pursuant to this section. The hearing examiner may approve alterations to a critical area or its buffers to allow a reasonable use not otherwise allowed by this chapter when the following criteria are met:
1. The application of this chapter would deny all reasonable use of the property;
2. There is no other reasonable use with less impact on the critical area;
3. The proposed development does not pose an unreasonable threat to the public health, safety, or welfare on or off the development proposal site and is consistent with the general purposes of this title and the public interest; and
4. Any alterations permitted to the critical area or its buffer shall be the minimum necessary to allow for reasonable use of the property; and any authorized alteration of a critical area under this subsection shall be subject to conditions established by the department including, but not limited to, mitigation under an approved mitigation plan.
B. Application Requirements. A complete application for a reasonable use exception shall include the following nine items:
1. A description of the areas of the site that contain a critical area, buffers, or are 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;
5. An analysis of whether any other reasonable use with less impact on the critical area 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;
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;
9. Such other information 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, or a buffer enhancement plan.
C. Review. A reasonable use exception shall be processed according to the procedures in EMC 18.40.080.
D. Findings and Determinations. A reasonable use exception may be approved if all of the findings are made in writing and are supported by the record. (Ord. 17-513 § 3 (Exh. A)).
14.30.060 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. 17-513 § 3 (Exh. A)).