Chapter 19.100


19.100.105    Statement of purpose.

19.100.110    Applicability.

19.100.115    Relationship to other county regulations.

19.100.120    Review authority.

19.100.125    Exemptions.

19.100.130    Standards for existing development.

19.100.135    Variances.

19.100.140    Reasonable use exception.

19.100.145    Special use review.

19.100.150    Appeals.

19.100.155    General application requirements.

19.100.160    Inventory provisions.

19.100.165    Enforcement.

19.100.105 Statement of purpose.

The purpose of the ordinance codified in this title is to identify and protect critical areas as required by the Growth Management Act of 1990 (Chapter 17, Laws of 1990). Critical areas include wetlands, fish and wildlife habitat conservation areas, geologically hazardous areas, frequently flooded areas, and critical aquifer recharge areas, as defined in this title. This title supplements the development requirements contained in the various chapters of the Kitsap County zoning ordinance (Title 17) by providing for additional controls and measures to protect critical areas. This title is adopted under the authority of Chapters 36.70 and 36.70A RCW and the Kitsap County Code, as now or hereafter amended.

A.    Goal Statement. It is the goal of Kitsap County that the beneficial functions and values of critical areas be preserved, and potential dangers or public costs associated with the inappropriate use of such areas be minimized by reasonable regulation of uses within, adjacent to or directly affecting such areas, for the benefit of present and future generations.

B.    Policy Goals. To implement the purpose and goal stated above, it is the intent of this title to accomplish the following:

1.    Conserve and protect the environmental factors that add to the quality of life within the federal, state and county regulations that protect critical areas for the benefit of current and future residents of Kitsap County and the state of Washington.

2.    Protect the public against avoidable losses from maintenance and replacement of public facilities, property damage, costs of publicly subsidizing mitigation of avoidable impacts, and costs for public emergency rescue and relief operations.

3.    Identify critical areas and their environmental functions and values.

4.    Protect critical areas and their functions and values by regulating use and management within these areas and adjacent lands while allowing for reasonable use and protection of property rights as provided for in state and federal law.

5.    Preserve the habitat, water quality, and water quantity functions and values of wetlands.

6.    Protect water quality by controlling erosion and carefully siting uses and activities that can detrimentally affect stream flows or aquatic habitat quality.

7.    Guide development proposals to the most environmentally suitable and stable portion of a development site.

8.    Avoid potential damage due to geological hazards or flooding.

9.    Preserve natural flood control and storm water storage.

10.    Maintain groundwater recharge and prevent the contamination of groundwater.

11.    Prevent cumulative adverse environmental impacts to water, wetlands, fish and wildlife habitats, frequently flooded areas, geologically hazardous areas, and aquifer recharge areas.

12.    Whenever mitigation is required, pursue as a preferred option, restoration and enhancement of previously impacted critical areas and their buffers.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 4, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.110 Applicability.

A.    Kitsap County shall not grant any permit, license or other development approval for any development proposal regulated by this title, except for those in compliance with the provisions of this title. This includes permits, licenses or other development approval to alter the conditions of any land, water or vegetation, or to construct or alter any structure or improvement. Failure to comply with the provisions of this title shall be considered a violation and subject to enforcement procedures as provided for in this title.

B.    This title applies to all uses and activities within areas or adjacent to areas designated as regulated critical areas unless identified as exempt in Section 19.100.125. The following permits and approvals shall be subject to and coordinate with the requirements of this title: site development activity permit, site plan approval, subdivision or short subdivision, building permit, performance-based development, shoreline substantial development, variance, conditional use permit, certain forest practice permits (Class IV general, Class III conversion option harvest plans), other permits leading to the development or alteration of land, and rezones if not combined with another development permit.

C.    Nonproject actions including, but not limited to, rezones, annexations, and the adoption of plans and programs, shall be subject to critical area review.

D.    This title is an overlay to the zoning ordinance. Activities regulated by the zoning ordinance are also subject to critical areas requirements but do not require an additional county permit. Under limited circumstances, additional state or federal permits may be required.

E.    The development standards and other requirements of this title shall be applied to uses and activities for any permit review or approval process otherwise required by county ordinances.

F.    Uses and activities in critical areas or their buffers for which no permit or approval is required by any other county ordinance remain subject to the development standards and other requirements of this title. While this title does not require a review or approval process for such uses and activities, they remain subject to the title.

G.    For the purpose of this title, the area of review is defined as the critical area and its largest potential buffer or setback. This defines the area of review only. Refer to Chapters 19.200 through 19.600 for specific development standards.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 5, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.115 Relationship to other county regulations.

When any provision of any other chapter of the Kitsap County Code conflicts with this title, that which provides the most protection to the critical area, as determined by the department, shall apply.

Applications for permits and approvals are subject to the provisions of this title as well as to other provisions of state and county law, which include, but are not limited to the following:

A.    Title 2, Government;

B.    Title 9, Health, Welfare and Sanitation;

C.    Title 12, Storm Water Drainage;

D.    Title 14, Buildings and Construction;

E.    Title 15, Flood Hazard Areas;

F.    Title 16, Land Division and Development;

G.    Title 17, Zoning;

H.    Title 18, Environment;

I.    Title 21, Land Use and Development Procedures;

J.    Title 22, Shoreline Master Program;

K.    Chapter 36.70A RCW, Growth Management Act;

L.    Chapter 90.58 RCW, Shoreline Management Act;

M.    Chapter 43.21C RCW, State Environmental Policy Act.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 6, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.120 Review authority.

A.    In evaluating a request for a development proposal regulated by this title, it shall be the responsibility of the department to determine the following:

1.    The nature and type of critical area and the adequacy of any special reports required in applicable sections of this title;

2.    Whether the development proposal is consistent with this title, by granting, denying or conditioning projects;

3.    Whether proposed alterations to critical areas are appropriate under the standards contained in this title, or whether it is necessary for the applicant to seek a variance or other exception; and

4.    Whether the protection mechanisms and the mitigation and monitoring plans and bonding measures proposed by the applicant are sufficient to protect the public health, safety and welfare consistent with the goals, purposes and objectives of this title, and if not, condition the permit or approval accordingly.

B.    The department shall have the administrative authority to reduce buffers and building setbacks as outlined in specific critical area sections of this title.

C.    Where projects have been approved with conditions to protect critical areas under previous protection policies in effect prior to the ordinance codified in this title, those conditions will apply. Nevertheless, this title shall apply to new applications where the department determines, based on review of current information that the prior conditions will result in a detrimental impact to a critical area.

D.    Time Limitations.

1.    Expiration of Approval.

a.    Approvals granted under this title shall be valid for the same time period as the underlying permit (e.g., preliminary plat, site development, building permit). If the underlying permit does not contain a specified expiration date, then approvals granted under this title shall be in writing and shall be valid for a period of three years from the date of issue, unless a longer period is specified by the department.

b.    The approval shall be considered null and void upon expiration, unless a time extension is requested and granted as set forth in subsection (D)(2) of this section.

2.    Time Extensions.

a.    The applicant or owner(s) may request in writing a one-year extension of the original approval.

b.    Knowledge of the expiration date and initiation of a request for a time extension is the responsibility of the applicant or owner(s).

c.    A written request for a time extension shall be filed with the department at least thirty days prior to the expiration of the approval.

d.    Upon filing of a written request for a time extension, a copy shall be sent to each party of record together with governmental departments or agencies that were involved in the original approval process. By letter, the department shall request written comments be delivered to the department within fifteen days of the date of the letter.

e.    Prior to the granting of a time extension, the department may require a new application(s), updated study(ies), and fee(s) if:

i.    The original intent of the approval is altered or enlarged by the renewal;

ii.    The circumstances relevant to the review and issuance of the original approval have changed substantially; or

iii.    The applicant failed to abide by the terms of the original approval.

f.    The department has the authority to grant or deny any requests for time extensions based upon demonstration by the applicant of good cause for the delay. Time extensions shall be granted in writing and documented in the file.

g.    If approved, the one-year time extension shall be calculated from the date of granting said approval.

E.    The department or applicant may request, at the applicant’s expense, third party review as described in Section 21.04.140.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 8, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.125 Exemptions.

The following activities are exempt from the requirements of this title:

A.    Emergencies that threaten the public health, safety and welfare. An “emergency” is an unanticipated and immediate threat to public health, safety, or the environment that requires action within a time too short to allow compliance with this title.

B.    Preexisting and ongoing agricultural activities on lands containing critical areas, as defined in Section 19.150.285.

C.    Normal and routine maintenance and operation of preexisting retention/detention facilities, biofilters and other storm water management facilities, irrigation and drainage ditches, farm ponds, fish ponds, manure lagoons, and livestock water ponds, provided that such activities shall not involve conversion of any wetland not currently being used for such activity.

D.    Structural alterations to buildings, otherwise allowed under the Kitsap County Code and that do not alter the structural footprint or introduce new adverse impacts to an adjacent critical area.

E.    Normal and routine maintenance or repair of existing utility structures within a right-of-way or within existing utility corridor or easements, including the cutting, removal and/or mowing of vegetation above the ground so long as in accordance with best management practices.

F.    Forest practices conducted pursuant to Chapter 76.09 RCW, except Class IV (general conversions) and conversion option harvest plans (COHP).

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 7, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.130 Standards for existing development.

A.    Existing Nonconforming Structures.

1.    “Existing nonconforming development” means a development that was lawfully constructed, approved or established prior to the effective date of the ordinance codified in this title, but does not conform to present regulations or standards of this title.

2.    Structures in existence on the effective date of the ordinance codified in this title that do not meet the setback or buffer requirements of this title may be remodeled or reconstructed provided that the new construction or related activity does not further intrude into the critical area or its associated buffers.

3.    New construction or related activity connected with an existing single-family dwelling shall not be considered further intruding into an associated buffer so long as the footprint of the structure lying within the critical area or its buffer is not increased by more than twenty percent and no portion of the new structure is located closer to the critical area than the existing structure; and provided further, that reconstruction or remodeling meets the requirements of Title 15 (Flood Hazard Areas) and shall only be allowed if it does not create or continue a circumstance where personal or property damage is likely due to the nature of the critical area.

4.    Nonconforming structures which are damaged or destroyed by fire, explosion, or other casualty, may be restored or replaced if the application is made for the necessary permits within one year of the date of the damage or destruction occurred, and the reconstruction is completed within two years of permit issuance or the conclusion of any appeal on the permit. The reconstruction or restoration shall not serve to expand, enlarge or increase the nonconformity except as allowed through the provisions of this section.

B.    Danger Tree Removal in a Critical Area or Buffer. Where a threat to human life or permanent structure is demonstrated, the department may allow removal of danger or hazard trees subject to the following criteria: (1) tree removal is the minimum necessary to balance protection of the critical area and its buffer with protection of life and property; and (2) the critical area or its buffer shall be replanted as determined by the department and the property owner. The department shall coordinate review with the property owner and Washington State Department of Fish and Wildlife as determined necessary to assure habitat protection. The department may require the applicant to consult with a professional forester or a certified arborist through a risk assessment report, or by the department through a danger tree site evaluation permit, prior to tree removal. Danger tree abatement can sometimes be achieved by felling the tree or topping the tree. Habitat needs may require leaving the fallen tree in the riparian corridor or maintaining a high stump for wildlife habitat.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 9, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.135 Variances.

A.    A variance in the application of the regulations or standards of this title to a particular piece of property may be granted by Kitsap County, when it can be shown that the application meets all of the following criteria:

1.    Because of special circumstances applicable to the subject property, including size, shape, or topography, the strict application of this title is found to deprive the subject property of rights and privileges enjoyed by other properties in the vicinity; provided, however, the fact that those surrounding properties have been developed under regulations in force prior to the adoption of this ordinance shall not be the sole basis for the granting of a variance.

2.    The special circumstances referred to in subsection (A)(1) of this section are not the result of the actions of the current or previous owner.

3.    The granting of the variance will not result in substantial detrimental impacts to the critical area, public welfare or injurious to the property or improvements in the vicinity and area in which the property is situated or contrary to the goals, policies and purpose of this title.

4.    The granting of the variance is the minimum necessary to accommodate the permitted use.

5.    No other practicable or reasonable alternative exists. (See Definitions, Chapter 19.150.)

6.    A mitigation plan (where required) has been submitted and is approved for the proposed use of the critical area.

B.    Kitsap County shall conduct a public hearing on all variance applications pursuant to the review process and notice requirements established in Title 21 (Land Use and Development Procedures), as now or hereafter amended.

C.    Except when application of this title would deny all reasonable use of the property (Section 19.100.140), an applicant who seeks an exception from the standards and requirements of this title shall pursue relief by means of a variance as provided for in this title.

D.    Requests for variances shall include the application requirements of Section 19.100.155 (General application requirements), or 19.200.215 (Wetland review procedures), whichever is applicable.

E.    The department shall review administrative buffer reductions based on the criteria and standards referenced in this chapter.

F.    The department may grant variances for public utilities to the substantive or procedural requirements of this title when:

1.    Application of this title to the utility’s activities would be inconsistent with the Comprehensive Plan and the utility’s public service obligations;

2.    The proposed utility activity does not pose an unreasonable threat to the public health, safety or welfare on or off the development proposal site; and

3. Any alterations permitted to these critical areas shall be the minimum necessary to reasonably accommodate the proposed utility activity and mitigate when feasible.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 10, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.140 Reasonable use exception.

If the application of this title would deny all reasonable use of the property, the applicant may apply for a reasonable use exception pursuant to this section:

A.    The applicant shall apply to the department, and the department shall prepare a recommendation to the hearing examiner. The applicant may apply for a reasonable use exception without first having applied for a variance if the requested exception includes relief from standards for which a variance cannot be granted pursuant to the provisions of the section. The property owner and/or applicant for a reasonable use exception has the burden of proving that the property is deprived of all reasonable uses. The examiner shall review the application and shall conduct a public hearing pursuant to the provisions of Title 21 (Land Use and Development Procedures). The examiner shall make a final decision based on the following criteria:

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

2.    There is no other reasonable use which would result in 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 does not conflict with the Endangered Species Act or other relevant state or federal laws; and

4.    Any alterations permitted to the critical area shall be the minimum necessary to allow for reasonable use of the property.

B.    Any authorized alterations of a critical area under this section shall be subject to conditions established by the examiner including, but not limited to, mitigation under an approved mitigation plan.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 11, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.145 Special use review.

Special use review is an administrative process unless the underlying permit requires a public hearing. Special use review may be requested for revisions to existing permits, or when review by external authorities would be necessary to assure the department applies reasonable conditions to minimize, rectify, or compensate for impacts to the critical area or buffer. Those external authorities include, but are not limited to federal agencies, state agencies, tribes, public utilities, and Kitsap public health.

The department is authorized to take action on permits as required by this title. Development identified as a special use review may be approved, approved with conditions, or denied according to the procedures and criteria outlined in this section.

A.    The department may approve a permit after review of the application and any required special reports submitted in accordance with this title. The department shall determine whether the use or activity cannot be avoided because no reasonable or practicable alternative exists, the proposed use is consistent with the spirit and intent of this title and it will not cause adverse impacts to the critical area or the buffer which cannot be mitigated. In taking action to approve a special use review, the department may attach reasonable conditions.

B.    The department shall deny a special use review request when it finds that the proposed use or activity is inconsistent with this title and/or will cause adverse impacts to the critical area or the buffer, which cannot be adequately mitigated and/or avoided.

C.    Special use review determinations are appealable to the hearing examiner pursuant to Section 19.100.150 (Appeals).

(Ord. 545 (2017) § 5 (Appx. (part)), 2017)

19.100.150 Appeals.

A.    Appealable Actions. The following decisions or actions required by this title may be appealed:

1.    Any decision to approve, condition or deny a development proposal, or any disagreement on conclusions, methodology, rating systems, etc. between the department and such person or firm which prepares special reports pursuant to Chapter 19.700 may be appealed by the applicant or affected party to the Kitsap County hearing examiner.

2.    Any decision to approve, condition or deny a variance application by the department may be appealed by the applicant or affected party to the Kitsap County hearing examiner.

3.    Any decision to require, or not require a special report pursuant to this title may be appealed by the applicant or affected party to the Kitsap County hearing examiner.

B.    Appeal Process. The appeals process will be pursuant to procedures in Chapter 21.04, or as amended hereafter.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 12, 2005: Ord. 217 (1998) § 3 (part), 1998. Formerly 19.100.145)

19.100.155 General application requirements.

A.    All applicants for new development are encouraged to meet with the department prior to submitting an application subject to Title 17. Fees for a staff consultation may be applied towards the application fee for the same project. The purpose of this meeting is to discuss Kitsap County’s zoning and applicable critical area requirements, to review any conceptual site plans prepared by the applicant and to identify potential impacts and mitigation measures. Such conference shall be for the convenience of the applicant, and any recommendations shall not be binding on the applicant or the county.

B.    The applicant must comply with the standards and requirements of this title as well as standards relating to Title 12 (Storm Water Drainage) set forth by the department, as now or hereafter amended. To expedite the permit review process, the department shall be the lead agency on all work related to critical areas. Development may be prohibited in a proposed development site based on criteria set forth in this title; the applicant should first determine whether this is the case before applying for permits from the department.

C.    Application for development proposals, reasonable use exception or variances regulated by this title or for review of special reports shall be made with the department by the property owner, lessee, contract purchaser, other person entitled to possession of the property, or by an authorized agent as listed in Chapter 19.700 (Special Reports).

D.    A filing fee in an amount established under Chapter 21.10 shall be paid to the department at the time an application for a permit relating to a critical area or a special report review is filed.

E.    Applications for any development proposal subject to this title shall be reviewed by the department for completeness and consistency or inconsistency with this title.

F.    At every stage of the application process, the burden of demonstrating that any proposed development is consistent with this title is upon the applicant.

G.    All applications for development subject to this title shall include a site plan drawn to scale identifying locations of critical areas, location of proposed structures and activities, including clearing and grading and general topographic information as required by the department. If the department determines that additional critical areas are found on the subject property, the applicant shall amend the site plan to identify the location of the critical area. When it is determined that regulated activities subject to the provisions of the State Environmental Policy Act (SEPA) as implemented by Title 18 (Environment) are likely to cause a significant, adverse environmental impact to the critical areas identified in this title that cannot be adequately mitigated through compliance with this title, environmental assessment and mitigation measures may be imposed consistent with the procedures established in Title 18 (Environment).

H.    Prior to taking action on a zone reclassification or a Comprehensive Plan amendment, the proponent shall complete an environmental review to confirm the nature and extent of any critical areas on or adjacent to the property; determine if the subsequent development proposal would be consistent with this title; and determine whether mitigation or other measures would be necessary if the proposal were approved. Such review shall occur prior to any SEPA threshold determination. Findings of such review may be used to condition or mitigate the impact through the SEPA threshold determination or to deny the proposal if the impacts are significant and cannot be mitigated.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 14, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.160 Inventory provisions.

The approximate location and extent of mapped critical areas within Kitsap County are shown on the maps adopted as part of this title, and incorporated herein by this reference. These maps shall be used only as a general guide for the assistance of the department and the public; the type, extent and boundaries may be determined in the field by a qualified specialist or staff person according to the requirements of this title. In the event of a conflict between a critical area location shown on the county’s maps and that of an on-site determination, the on-site determination will apply.

Kitsap County will review map inventory information of all critical areas as it becomes available. Mapping will include critical areas that are identified through site specific analysis by local, state and federal agencies, the Kitsap conservation district, tribal governments, citizen groups and other sources.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 15, 2005: Ord. 217 (1998) § 3 (part), 1998)

19.100.165 Enforcement.

A.    Authorization. The director is authorized to enforce this title, and to designate county employees as authorized representatives of the department to investigate suspected violations of this title, and to issue orders to correct violations and notices of infraction.

B.    Right of Entry. When it is necessary to make an inspection to enforce the provisions of this title, or when the director or his/her designee has reasonable cause to believe that a condition exists on property that is contrary to or in violation of this title, an authorized official may investigate and in doing so may enter upon land when consent has been given or as otherwise allowed by law.

C.    Stop Work Orders. Whenever any work or activity is being done contrary to the provisions of this title the director or his/her designee may order the work stopped by notice in writing, served on any persons engaged in the doing or causing such work to be done, or by posting the property, and any such persons shall forthwith stop such work or activity until authorized by the director or his/her designee to proceed.

D.    Penalties. The violation of any provision of this title shall constitute a Class I civil infraction. Each violation shall constitute a separate infraction for each and every day or portion thereof during which the violation is committed, continued, or permitted. Infractions shall be processed in accordance with the provisions of Chapter 2.116, as now or hereafter amended.

E.    Imminent and Substantial Dangers. Notwithstanding any provisions of these regulations, the director or his/her designee may take immediate action to prevent an imminent and substantial danger to the public health, welfare, safety or the environment by the violation of any provision of this title.

F.    Other Legal or Equitable Relief. Notwithstanding the existence or use of any other remedy, the director or his/her designee may seek legal or equitable relief to enjoin any acts or practices or abate any conditions, which constitute or will constitute a violation of the provisions of this title.

(Ord. 545 (2017) § 5 (Appx. (part)), 2017: Ord. 351 (2005) § 16, 2005: Ord. 217 (1998) § 3 (part), 1998)