Chapter 18.08
CRITICAL AREAS

Sections:

18.08.010    Purpose.

18.08.020    Title.

18.08.030    Goals.

18.08.040    Critical areas map.

18.08.050    Definitions.

18.08.060    Applicability.

18.08.070    Regulations.

18.08.080    Reasonable use exceptions.

18.08.090    Exemptions.

18.08.100    Performance assurance.

18.08.110    Violation and enforcement.

18.08.010 Purpose.

The purpose of this chapter is to promote the maintenance, enhancement and preservation of critical areas and environmentally sensitive natural systems by avoiding or minimizing adverse impacts from construction and development. This chapter implements the goals and objectives of the State Growth Management Act of 1990 (Chapter 36.70A RCW) through the development and implementation of policies and regulations to manage critical areas in the public’s interest and welfare. It is not the intent of this chapter to deny a reasonable use of private property, but to assure that development on or near critical areas is accomplished in a manner that is sensitive to the environmental resources of the community. The town shall treat proposals located wholly or partially within an environmentally sensitive area no differently than other proposals under this chapter, making a threshold determination for all such proposals. The town shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area. (Ord. 1051 § 1, 1997)

18.08.020 Title.

This chapter shall be known as the critical areas ordinance and may be cited as such. (Ord. 1051 § 2, 1997)

18.08.030 Goals.

In implementing the purposes stated in FHMC 18.08.010, it is the intent of this chapter to accomplish the following:

A. Protect environmentally sensitive natural areas and the functions they perform by the careful and considerate regulation of development;

B. Minimize or prevent siltation to the receiving waters of Friday Harbor for the maintenance of marine water quality and the maintenance and preservation of marine fish and shellfish;

C. Preserve natural forms of flood control and storm water storage from alterations to drainage or stream flow patterns;

D. Protect aquifer recharge areas from undesirable or harmful development;

E. Protect, maintain and enhance areas suitable for wildlife, including rare, threatened or endangered species;

F. Protect, maintain and enhance fish and wildlife habitat conservation areas within their natural geographic distribution so as to avoid the creation of subpopulations; and

G. Implement the goals, policies and requirements of the Growth Management Act. (Ord. 1051 § 3, 1997)

18.08.040 Critical areas map.

The critical areas map, which is attached to the ordinance codified in this chapter as Exhibit A, is hereby adopted as the official identification of the critical areas within the town. (Ord. 1051 § 4, 1997)

18.08.050 Definitions.

For the purposes of this chapter, the terms set out in this section shall have the meanings indicated.

A. “Development” means any land use action regulated by FHMC Titles 15 through 19.

B. “Responsible official” means the person designated as the responsible official under FHMC 18.04.050 as amended from time to time. (Ord. 1051 § 5, 1997)

18.08.060 Applicability.

A. Scope. All development applications shall require the applicant to state whether or not any portion of the proposed development will be located within an area which is subject to the regulations set forth in this chapter.

B. Area. Except as exempted under FHMC 18.08.090, the regulations in this chapter shall apply to any development which will be located, in whole or in part, within 50 feet of an identified wetland, within an identified aquifer recharge area, or, if over water, within 200 feet of an identified eelgrass area. (Ord. 1051 § 6, 1997)

18.08.070 Regulations.

A. Wetlands. Whenever an application for development within 50 feet of an identified wetland indicates that any part of the proposal is to be located within 50 feet of the wetland, the responsible official shall visit the site and, after reviewing all available information, determine whether or not a wetlands study is necessary in order to adequately evaluate the probable impacts of the proposal on the wetlands. The study shall be performed by a qualified person selected or approved by the town, and shall be paid for by the applicant. The results of the study shall be used by the responsible official in making his or her threshold determination under Chapter 18.04 FHMC as amended from time to time.

B. Aquifer Recharge Areas. No development shall be permitted within an identified aquifer recharge area, except as permitted for single-family residential uses or multifamily residential uses under FHMC Title 17 as amended from time to time.

C. Eelgrass Areas. Whenever an application for development over water indicates that any part of the proposal is to be located within 200 feet of an identified eelgrass area, the responsible official shall visit the site and, after reviewing all available information, determine whether or not an eelgrass study is necessary in order to adequately evaluate the probable impacts of the proposal on the eelgrass area. The study shall be performed by a qualified person selected or approved by the town, and shall be paid for by the applicant. The results of the study shall be used by the responsible official in making his or her threshold determination under Chapter 18.04 FHMC as amended from time to time. (Ord. 1051 § 7, 1997)

18.08.080 Reasonable use exceptions.

If the application of this chapter would preclude all reasonable use of a parcel, development, consistent with the general purposes and intent of this chapter, may be permitted if a reasonable use exception is approved in accordance with this section.

A. Information Required. An application for a reasonable use exception shall be submitted to the responsible official and shall include the following information:

1. A description of the area of the property which is within the critical area;

2. An analysis of the impact that the amount of development proposed would have on the critical area;

3. An analysis of whether any other reasonable use with less impact on the critical area is possible;

4. A design of the reasonable use proposal that will have the least practicable impact on the critical area;

5. A description and analysis of any minimum requirements of this chapter, which must be modified to accommodate the proposed development; and

6. Such other information as may be reasonable and necessary to evaluate the proposal.

B. Findings and Decision. If an applicant successfully demonstrates that the requirements of this chapter would deny all reasonable use of a site, development may be permitted. The responsible official may impose any reasonable conditions on the granting of the reasonable use exception, consistent with the minimum requirements of this chapter. The responsible official shall make written findings in support of the decision, as follows:

1. There are no feasible alternatives to the proposed development which would have less impact on the critical area;

2. The inability of the applicant to derive a reasonable use of the property is not the result of actions taken by the applicant after the effective date of the ordinance codified in this chapter;

3. The proposal mitigates the impacts on the critical area to the maximum extent practicable, while maintaining the reasonable use of the site; and

4. The modification of the requirements of this chapter is the minimum necessary to allow for the reasonable use of the property.

C. Notification of Decision. The decision shall be provided, in writing, to the applicant and all property owners immediately adjacent to or abutting the site. The applicant shall be responsible for providing a current listing of all such property owners.

D. Appeal. The decision of the responsible official is appealable to the town council. An appeal shall be in writing and submitted within 10 days of the date of the decision. (Ord. 1051 § 8, 1997)

18.08.090 Exemptions.

Certain development and uses may be of such impact and character or so essential to the maintenance and enjoyment of a lawfully permitted use that the requirements of this chapter should not apply. The following development and uses are therefore exempt from the requirements of this chapter:

A. Minimum actions necessary to protect life or property in an emergency situation. Qualification as an emergency shall be based upon the factual occurrence of imminent threat or danger;

B. Public and private pedestrian trails which consist of a pervious surface not exceeding four feet in width;

C. Science research and educational activities specific to the site, such as archaeological sites and attendant excavation, which do not require the construction of permanent structures or roads for vehicle access;

D. Subsurface drilling for geologic exploration associated with a proposed development which is not exempt from the requirements of this chapter; and

E. The placement of signs consistent with FHMC Title 14 as amended from time to time. (Ord. 1051 § 9, 1997)

18.08.100 Performance assurance.

A. The responsible official may allow the applicant to provide a financial performance assurance device in lieu of constructing required mitigation measures and may require such a device to guarantee installation/construction of required mitigation measures within one year of the issuance of a certificate of occupancy or final inspection.

B. Performance assurance devices shall take the form of one of the following:

1. A surety bond executed by a surety company authorized to transact business in the state, in a form approved by the town attorney;

2. Cash;

3. A letter of credit, approved by the town attorney, from a financial institution; or

4. An assigned savings account, pursuant to an agreement approved by the town attorney.

C. If a performance assurance device is employed, the property owner shall provide the town with a nonrevocable notarized agreement granting the town and its agents the right to enter the property and perform any required work remaining undone at the expiration of the time given to the owner for completion.

D. If the owner fails to complete the work and the town has incurred costs or expenses resulting from such failure, the town shall make demand on the assurance device for reimbursement. If the amount available is less than the expense incurred by the town, the owner shall be liable to the town for the difference. If the amount of the assurance device exceeds the expense incurred by the town, the remainder shall be released to the owner. (Ord. 1051 § 10, 1997)

18.08.110 Violation and enforcement.

A. A violation of this chapter shall be and hereby is declared both a public nuisance and a Class 1 civil infraction, as defined in Chapter 1.18 FHMC as amended from time to time. Each day that a violation of this chapter exists may be treated as a separate infraction.

B. Except in circumstances where there is a serious and imminent threat to public health or safety, prior to filing a public nuisance abatement action in San Juan County superior court, the town shall attempt to gain compliance by use of the civil infraction procedures set forth in Chapter 1.18 FHMC as amended from time to time.

C. The penalty for committing a civil infraction under this chapter shall be as set forth in Chapter 1.18 FHMC as amended from time to time. (Ord. 1051 § 11, 1997)