Chapter 20.12
GENERAL CRITICAL AREAS REGULATIONS

Sections:

20.12.010    Purpose.

20.12.020    Relationship to other regulations.

20.12.030    Jurisdiction.

20.12.040    Exempt activities.

20.12.050    Public agency and utility exceptions.

20.12.060    Reasonable use.

20.12.070    Critical area identification form and report.

20.12.080    Density calculation.

20.12.085    Innovative development design.

20.12.090    Mitigation sequencing.

20.12.100    Mitigation plan requirements.

20.12.110    Determination.

20.12.120    Variances.

20.12.130    Enforcement and penalties.

20.12.140    Signs and fencing.

20.12.150    Building setbacks.

20.12.010 Purpose.

(1) The purpose of the critical areas regulations in this chapter is to designate and classify ecologically sensitive and hazardous areas and to protect them and their functions and values, while also allowing for reasonable use of private property.

(2) Critical areas regulations in this chapter implement the goals, policies, guidelines, and requirements of the city comprehensive plan and the Growth Management Act as they relate to critical areas.

(3) The city finds that critical areas provide a variety of valuable and beneficial biological and physical functions that benefit the city and its residents, and/or may pose a threat to human safety or to public and private property. The beneficial functions and values provided by critical areas include, but are not limited to, water quality protection and enhancement, fish and wildlife habitat, food chain support, flood storage, conveyance and attenuation of flood waters, ground water recharge and discharge, erosion control, wave attenuation, protection from hazards, historical, archaeological, and aesthetic value protection, and recreation. These beneficial functions and values are not listed in order of priority. (Ord. 1440 § 2, 2005).

20.12.020 Relationship to other regulations.

(1) These critical areas regulations shall apply as an overlay and in addition to zoning and other regulations adopted by the city.

(2) Any individual critical area adjoined by another type of critical area shall have the buffer and meet the requirements that provide the most protection to the critical areas involved. When any provision of this chapter or any existing regulation, easement, covenant, or deed restriction conflicts with this chapter, that which provides more protection to the critical areas shall apply.

(3) These critical areas regulations shall apply concurrently with review conducted under the State Environmental Policy Act (SEPA), as locally adopted. Any conditions required pursuant to critical areas regulations in this chapter shall be included in the SEPA review and threshold determination and shall constitute compliance with SEPA with respect to critical areas.

(4) The city shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first ensuring compliance with the requirements of critical areas regulations in this chapter.

(5) Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required. The applicant is responsible for complying with these requirements, apart from the process established in this chapter. (Ord. 1440 § 2, 2005).

20.12.030 Jurisdiction.

(1) The city shall regulate all uses, activities, and developments within, adjacent to, or likely to affect one or more critical areas, consistent with the best available science and the provisions herein.

(2) Critical areas regulated by this chapter include:

(a) Wetlands, as designated in Chapter 20.24 OHMC;

(b) Fish and wildlife habitat conservation areas, as designated in Chapter 20.25 OHMC;

(i) Garry oak tree protection in conformance with WAC 365-190-130(4)(b), as designated in Chapter 20.16 OHMC;

(c) Geologically hazardous areas, as designated in Chapter 20.28 OHMC;

(d) Critical aquifer recharge areas, as designated in Chapter 20.32 OHMC; and

(e) Frequently flooded areas, as designated in Chapter 20.34 OHMC.

(3) All areas within the city meeting the definition of one or more critical areas, regardless of any formal identification, are hereby designated critical areas and are subject to the provisions of critical areas regulations in this chapter.

(4) The approximate location and extent of critical areas within the city are shown on the adopted critical area maps. The adopted maps do not include the location of all critical areas; therefore, it is the actual presence of critical areas that triggers the requirements of this chapter, whether or not the critical area is identified on the adopted maps. (Ord. 1801 § 3, 2018; Ord. 1440 § 2, 2005).

20.12.040 Exempt activities.

The following developments, activities, and associated uses shall be exempt from the provisions of this chapter and Chapter 20.16 OHMC, Garry Oak Tree Protection; Chapter 20.24 OHMC, Wetlands; Chapter 20.25 OHMC, Fish and Wildlife Habitat Conservation Areas; Chapter 20.28 OHMC, Geologically Hazardous Areas; and Chapter 20.32 OHMC, Critical Aquifer Recharge Areas:

(1) Emergencies. Those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to private property and that require remedial or preventive action in a timeframe too short to allow for compliance with the requirements of this chapter. After the emergency, the person or agency undertaking the action shall report any impacts to the critical area to the director. The director may require submittal of a critical areas report to guide restoration or mitigation for these impacts. Final approval of the report, restoration and mitigation shall be in accordance with provisions of this chapter.

(2) Operation, maintenance, repair, modification, addition to, or replacement of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, if the activity does not further alter or increase the impact to, or encroach further within, a critical area or buffer and there is no increased risk to life or property as a result of the action. Operation and maintenance include vegetation management performed in accordance with best management practices; provided, that such management actions are part of regular and ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of a structure or utility, and do not directly impact species or habitat protected under Chapter 20.25 OHMC.

(3) Educational and research activities that do not degrade the functions and values of a critical area or buffer. (Ord. 1801 § 4, 2018; Ord. 1440 § 2, 2005).

20.12.050 Public agency and utility exceptions.

(1) If the application of critical areas regulations in this chapter would prohibit a development proposal by a public agency or public utility, the agency or utility may apply for an exception pursuant to this section.

(2) Exception Request and Review Process. An application for a public agency and utility exception shall be made to the city and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act. The director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with review criteria in subsection (4) of this section.

(3) Hearing Examiner Review. The hearing examiner shall review the application and director’s recommendation, and conduct a public hearing pursuant to the provisions of Chapter 18.40 OHMC. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the public agency and utility exception criteria in subsection (4) of this section.

(4) Public Agency and Utility Review Criteria. The criteria for review and approval of public agency and utility exceptions are the following:

(a) There is no other practical alternative to the proposed development with less impact on critical areas and their buffers, including minimizing removal of native vegetation and significant trees;

(b) The application of this chapter would unreasonably restrict the ability to provide services to the public;

(c) The proposal does not pose a threat to the public health, safety, or welfare on or off the development proposal site;

(d) The proposal protects and mitigates impacts to the functions and values of the critical area to the greatest extent feasible, consistent with the best available science; and

(e) The proposal is consistent with other applicable regulations and standards.

(5) The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application. (Ord. 1801 § 5, 2018; Ord. 1440 § 2, 2005).

20.12.060 Reasonable use.

(1) If the application of critical areas regulations in this chapter would deny all reasonable economic use of the subject property, the city shall determine if compensation is an appropriate action, or the property owner may apply for an exception pursuant to this section.

(2) Exception Request and Review Process. An application for a reasonable use exception shall be made to the city and shall include a critical area identification form; critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act. The director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection (4) of this section.

(3) Hearing Examiner Review. The hearing examiner shall review the application and conduct a public hearing pursuant to the provisions of Chapter 18.40 OHMC. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all the reasonable use exception review criteria in subsection (4) of this section.

(4) Reasonable Use Review Criteria. Criteria for review and approval of reasonable use exceptions follow:

(a) The application of the normal standards of this chapter would deny all reasonable economic use of the property;

(b) No other reasonable economic use of the property has less impact on the critical area, allowing for a building footprint of up to 1,500 square feet for single-family residential development and up to 4,000 square feet for multifamily and nonresidential development. The actual floor area of buildings may be larger. Associated hard surface for driveways, parking and other purposes shall be the minimum necessary to meet the usual and customary needs of the land use;

(c) The proposal protects and mitigates impacts to the functions and values of the critical area to the greatest extent feasible, consistent with the best available science, allowing for reductions in critical area buffers and setbacks of up to 50 percent, with mitigation;

(d) The inability of the applicant to derive reasonable economic use of the property is not the result of subdivision or other actions by the applicant after the effective date of the ordinance codified in this chapter, or its predecessor;

(e) The proposal does not pose a threat to the public health, safety, or welfare on or off the development proposal site; and

(f) The proposal is consistent with other applicable regulations and standards.

(5) Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

(6) Variance Available. If the applicant is not satisfied with relief provided by this section, the applicant may apply for a variance, under the standards of OHMC 20.12.120. (Ord. 1801 §§ 6, 7, 2018; Ord. 1440 § 2, 2005).

20.12.070 Critical area identification form and report.

(1) Submittal. Prior to the city’s consideration of any proposed activity not found to be exempt under OHMC 20.12.040, the applicant shall submit to the director a complete critical area identification form on forms provided by the city.

(2) Review Process. The director shall review the critical area identification form and, as needed, conduct a site inspection and review other information available pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal. If the director finds that no critical areas are present on or adjacent to the project area or that the proposal will not impact a critical area in a manner contrary to the purpose, intent and requirements of critical areas regulations in this chapter, the director shall rule that the critical area review is complete and note on the identification form that no further review is required. If the director finds that a critical area may be affected by the proposal, the director shall notify the applicant that a critical areas report must be submitted prior to further review of the project, and indicate each of the critical area types that should be addressed in the report. A determination regarding the absence of one or more critical areas by the director is not an expert certification regarding the presence of critical areas and is subject to possible reconsideration and reopening if new information is received.

(3) Critical Areas Report. Detailed requirements for critical areas reports are identified in the chapters for specific types of critical areas. Preparation of critical areas reports and their review by the city, which may include referral to independent qualified professionals, shall be at the applicant’s expense. (Ord. 1440 § 2, 2005).

20.12.080 Density calculation.

(1) Where development is partly prohibited due to the presence of critical areas, as defined in this title, an applicant may be permitted to transfer the density attributable to the undevelopable area of the property to another noncritical portion of the same site or property subject to the limitations of this section. Up to 100 percent of the density that could be achieved on the unbuildable portion of the site can be transferred to the noncritical area portion of the property, subject to:

(a) The density limitation of the underlying zoning district;

(b) The minimum lot size of the underlying zoning district may be reduced by up to 25 percent; and

(c) Applicable setbacks may be reduced to 15 feet, and the lot coverage standards of underlying zoning regulations may be increased to 60 percent. (Ord. 1440 § 2, 2005).

20.12.085 Innovative development design.

A development permit applicant may request approval of an innovative development design, which addresses wetland, fish and wildlife habitat conservation areas or buffer treatment in a manner that deviates from the standards in OHMC 20.24.030 or 20.25.040.

(1) An innovative development design will be considered in conjunction with a project permit application or building permit approval. An applicant may include the innovative development design proposal in a preapplication review as established in OHMC 18.20.310. Preliminary comments may be provided during the preapplication; however, a final decision on the proposal will only be issued with the project or building permit approval, whichever occurs first.

(2) The applicant shall demonstrate in a critical areas report, pursuant to OHMC 20.24.040, wetlands, or OHMC 20.25.050, fish and wildlife habitat conservation areas, how the innovative development design complies with the following requirements:

(a) The innovative development design will achieve protection equivalent to or better than the treatment of the functions and values of the critical areas that would be obtained by applying the standard prescriptive measures contained in this title;

(b) Applicants for innovative development design are encouraged to consider measures prescribed in guidance, such as watershed conservation plans or other similar conservation plans, and low impact development stormwater strategies which address wetlands, fish and wildlife habitat conservation areas or buffer protection consistent with this title; and

(c) The innovative development design will not be materially detrimental to the public health, safety, or welfare or injurious to other properties or improvements located outside of the subject property. (Ord. 1874 § 1, 2019).

20.12.090 Mitigation sequencing.

Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When an alteration to a critical area is proposed, such alteration shall be avoided, minimized, or compensated for in the following sequential order of preference:

(1) Avoiding the impact altogether by not taking a certain action or parts of an action;

(2) Minimizing impacts by limiting the degree or magnitude of the action and its implementation, by using appropriate technology, or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;

(3) Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected environment;

(4) Minimizing or eliminating a hazard by restoring or stabilizing the hazard area through engineered or other methods;

(5) Reducing or eliminating the impact or hazard over time by preservation and maintenance operations;

(6) Compensating for the impact to wetlands, critical aquifer recharge areas, frequently flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute resources or environments; and

(7) Monitoring the hazard or other required mitigation and taking remedial action when necessary.

Mitigation may include a combination of the above measures. (Ord. 1801 §§ 8, 9, 2018; Ord. 1440 § 2, 2005).

20.12.100 Mitigation plan requirements.

When mitigation is required, the applicant shall submit for approval by the city a mitigation plan as part of the critical areas report. The mitigation plan shall include:

(1) A written report identifying environmental goals and objectives of the compensation proposed, including:

(a) A description of the anticipated impacts to the critical areas and the mitigating actions proposed, including the site selection criteria; mitigation goals and objectives, in relation to the functions and values of the impacted critical area; and dates for beginning and completion of mitigation activities.

(b) A review of the best available science supporting the proposed mitigation and a description of the report author’s experience to date in restoring or creating the type of critical area proposed; and

(c) An analysis of the likelihood of success of the compensation project.

(2) Measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained and whether or not the requirements of critical areas regulations in this chapter have been met.

(3) Details of the mitigation proposed, such as:

(a) The proposed construction method, sequence, timing, and duration;

(b) Grading and excavation details;

(c) Erosion and sediment control features;

(d) A planting plan specifying plant species, quantities, locations, size, spacing, and density; and

(e) Measures to protect and maintain plants until established.

These written specifications shall be accompanied by detailed site diagrams, scaled cross-sectional drawings, topographic maps showing slope percentage and final grade elevations, and any other drawings appropriate to show construction techniques or anticipated final outcome.

(4) A program for monitoring construction of the mitigation project and for assessing the completed project against its goals and objectives. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years one, three, five, seven and 10 after site construction), and how monitoring data will be evaluated to determine if performance standards are being met. A monitoring report shall be submitted to document milestones, successes, problems, and contingency actions of the compensation project. The mitigation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five years in the case of mitigation for buffer alterations and for not less than 10 years for mitigation of wetland alterations. If performance standards are being met after these minimum periods, requirements for additional monitoring may be waived, if the director determines they are unnecessary.

(5) Identification of potential courses of action, and any corrective measures to be taken if monitoring or evaluation indicates project performance standards are not being met.

(6) Financial guarantees to ensure that the mitigation plan is fully implemented and meeting performance standards. Guarantees shall be in the form of a surety bond, performance bond, assignment of savings account, or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city. Guarantees shall remain in effect for a minimum of five years until the city determines, in writing, that the standards bonded for have been met, to ensure that the required mitigation has been fully implemented and demonstrated to function. Depletion, failure, or collection of bond funds shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration. (Ord. 1440 § 2, 2005).

20.12.110 Determination.

(1) Upon review of a critical areas report, if the director determines that a proposed activity complies with OHMC 20.12.090, 20.12.100 and requirements related to specific types of critical areas, the director shall prepare a written notice of determination and identify any required conditions of approval, which shall be attached to the underlying permit or approval. This determination shall be final concurrent with the final decision to approve, condition, or deny the development proposal or other activity involved.

(2) If the director determines that a proposed activity does not adequately mitigate its impacts on critical areas, the director shall prepare written notice of the determination that includes findings of noncompliance. No proposed activity or permit shall be approved or issued if it is determined that the proposed activity does not comply with this chapter. Following notice of noncompliance, the applicant may request consideration of a revised critical areas report. If the revision is found to be substantial and relevant to the critical areas review, the director may reopen the review and make a new determination based on the revised report.

(3) Any decision to approve, condition, or deny a development proposal or other activity based on the requirements of this chapter may be appealed according to, and as part of, the appeal procedure for the permit or approval involved. (Ord. 1440 § 2, 2005).

20.12.120 Variances.

(1) Variances from the standards of critical areas regulations in this chapter may be authorized by the city in accordance with the procedures set forth in Chapter 19.66 OHMC. The hearing examiner shall review the request and make a written finding that the request meets or fails to meet the variance criteria.

(2) Variance Criteria. A variance may be granted only if the applicant demonstrates that the requested action conforms to all of the criteria set forth as follows:

(a) Special conditions and circumstances exist that are peculiar to the land or lot that are not applicable to other lands in the same district;

(b) The special conditions and circumstances do not result from the actions of the applicant;

(c) A literal interpretation of the provisions of critical areas regulations in this chapter would deprive the applicant of reasonable economic uses and privileges permitted to other properties in the vicinity and zone of the subject property under the terms of this chapter, and the variance requested is the minimum necessary to provide the applicant with such rights;

(d) Granting the variance requested will not confer on the applicant any special privilege that is denied by critical areas regulations in this chapter to other lands, structures, or buildings under similar circumstances;

(e) The granting of the variance is consistent with the general purpose and intent of critical areas regulations in this chapter, and with mitigation will not further degrade the functions or values of the associated critical areas or otherwise be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity of the subject property;

(f) The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and

(g) The granting of the variance is consistent with the general purpose and intent of the city comprehensive plan and adopted development regulations.

(3) Conditions May Be Required. In granting any variance, the city may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts, and to ensure conformity with this chapter.

(4) Time Limit. The city shall prescribe a time limit within which the action for which the variance is required shall be begun, completed, or both. Failure to begin or complete such action within the established time limit shall void the variance.

(5) Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application. (Ord. 1801 § 10, 2018; Ord. 1440 § 2, 2005).

20.12.130 Enforcement and penalties.

(1) Inspections. Reasonable access to the site shall be provided to the city, state, and federal agency review staff for the purpose of inspections during any proposal review, restoration, emergency action, or monitoring period. The director shall present proper credentials and make a reasonable effort to contact any property owner before entering onto private property.

(2) When a critical area or its buffer has been altered in violation of this chapter, all ongoing development work shall stop and the critical area or buffer shall be restored. The city shall have the authority to issue a stop work order to cease all ongoing development work and order restoration, rehabilitation, or replacement measures at the owner’s or other responsible party’s expense to compensate for violation of provisions of this chapter. All development work shall remain stopped until a restoration plan is prepared and approved by the city. Such a plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in subsection (3) of this section. The director shall, at the violator’s expense, seek expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the applicant or violator for revision and resubmittal.

(3) Minimum Performance Standards for Restoration.

(a) For alterations to critical aquifer recharge areas, wetlands, and habitat conservation areas, restoration shall return the affected environment to the historic conditions or the conditions existing at the time of the initiation of the project; if that is infeasible, restoration shall replace, enhance, or provide substitute resources or environments meeting the criteria for mitigation in OHMC 20.12.090 and 20.12.100.

(b) For alterations to flood and geological hazards, the following minimum performance standards shall be met for restoration:

(i) The hazard shall be reduced to a level equal to, or less than, the predevelopment hazard;

(ii) Any risk to public safety or other critical areas resulting from the alteration shall be eliminated or minimized; and

(iii) To the extent feasible, the hazard area and buffers shall be replanted with native vegetation sufficient to minimize the hazard.

(c) Restoration of oak trees shall be through a replacement ratio of at least five trees for every tree removed, topped or killed in violation of Chapter 20.16 OHMC. Replacement trees must be of a genetic stock from the Puget Sound/Georgia Strait ecoregion, unless such trees are not reasonably available. At least two trees must survive at least five years after planting and must grow to a height of at least eight feet.

(4) Penalties. Any person convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portion of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty shall be assessed at a maximum rate of $1,000 per day per violation. (Ord. 1801 § 11, 2018; Ord. 1717 § 42, 2015; Ord. 1440 § 2, 2005).

20.12.140 Signs and fencing.

(1) Temporary Markers. The outer perimeter of buffers and the clearing limits identified by an approved permit or authorization shall be marked in the field with temporary “clearing limits” fencing in such a way as to ensure that no unauthorized intrusion will occur. The marking is subject to inspection by the director prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction and shall not be removed until permanent signs, if required, are in place.

(2) Permanent Signs. As a condition of any permit or authorization issued pursuant to critical areas regulations in this chapter, the director may require signs identifying postproject buffers and critical areas as “critical areas.” If the buffers or critical areas have predominantly native vegetation or are so restored by the project, signs may use the term “native growth protection areas.” Signs shall be made of an enamel-coated metal face and attached to a metal post or other nontreated material of equal durability. Signs must be posted at an interval of one per lot or every 50 feet, whichever is less, and must be maintained by the property owner in perpetuity. Signs shall be worded as follows or with alternative language approved by the director:

Critical Area (or Native Growth Protection Area, as appropriate)

Do Not Disturb

Contact City of Oak Harbor Regarding Uses, Restrictions, and Opportunities for Stewardship

(3) Fencing. If the director determines fencing is necessary to protect the functions and values of the critical area, the director shall condition any permit or authorization issued pursuant to critical areas regulations in this chapter to require the applicant to install a permanent fence at the edge of the wetland buffer (e.g., split-rail fence).

(a) Fencing installed as part of a proposed activity shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes impacts to the wetland and associated habitat. (Ord. 1801 § 12, 2018; Ord. 1440 § 2, 2005).

20.12.150 Building setbacks.

Unless otherwise provided, buildings and other structures shall be set back a distance of 10 feet from the edges of all critical area buffers or from the edges of all critical areas, if no buffers are required. The following may be allowed in the building setback area:

(1) Landscaping;

(2) Uncovered decks;

(3) Building overhangs, if such overhangs do not extend more than 18 inches into the setback area; and

(4) Impervious ground surfaces, such as driveways and patios; provided, that such improvements may be subject to water quality regulations. (Ord. 1440 § 2, 2005).