Chapter 13.30
LAND ALTERATION AND SURFACE WATER CONTROL
Sections:
13.30.070 Relationship to other regulations.
13.30.080 Relationship to property valuation.
13.30.110 Application review process.
13.30.120 Variance from standards.
13.30.130 Reasonable use exception.
13.30.150 Designation of administrator.
13.30.170 Penalties and enforcement.
13.30.180 Nonconforming activities.
13.30.190 Waste discharge into drainage systems.
13.30.010 Establishment.
There is hereby established land alteration and surface water control standards for the city of South Bend. All land alteration activities within the city shall conform to the requirements of this chapter and the city of South Bend land alteration and surface water control standards, hereinafter referred to as the “standards”, attached as Exhibit 1* to the ordinance codified in this chapter. (Ord. 1227 § 1.1, 1998).
*Code reviser’s note: Exhibit 1 is available for public review and examination in the city clerk’s office.
13.30.020 Purpose and goals.
It is the express purpose of this chapter that land alteration and surface water control in South Bend be conducted in accordance with uniform standards to provide for and promote the health, safety, and welfare of the general public, and not create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter.
Land alteration activities are those activities which are commonly referred to as clearing, grubbing, excavation, filling, grading, surfacing, paving, compaction, stockpiling, and stabilizing.
The primary goals of land alteration and surface water control standards are the control of filling and excavation to prevent unintended earth movement and erosion at its source as a means of controlling water pollution, flooding, and habitat damage downstream and that all land alteration and development activities make provisions for drainage. It is further the goal of the city to foster the consistent and acceptable implementation of physical aspects of land alteration and surface water control. (Ord. 1227 § 1.2, 1998).
13.30.030 Policy.
It is the policy of the city of South Bend that the potential damage, dangers, or public costs associated with inappropriate land alteration be minimized by reasonable regulation of and application of uniform standards thereto. Reasonable regulation shall be achieved by the balancing of individual and collective interests.
It is the policy of the city of South Bend that development activities make provisions for surface water control and earth stabilization. It shall not be permitted to collect, channel, direct, or divert diffuse surface waters, or sheet flows, from, upon, or within a parcel of land in any artificial manner, such as by fill, ditch, underground drain tile, pipe, culvert, or other means, nor to excavate or fill in a manner which may result in earth slops or subside onto another property, without first obtaining written permission of that property owner and a permit from the designated administrator.
No permit granted pursuant to this chapter shall remove an applicant’s obligation in respects to the applicable provisions or any other federal, state, or local law or regulation, including, but not limited to, the acquisition of any other required permit or approval.
In the event that federal, state, or other applicable laws impose a standard or regulation that is in conflict with any provision of this chapter or any standard or regulation that the city may adopt pursuant to this chapter, the most restrictive standard shall prevail. (Ord. 1227 § 1.3, 1998).
13.30.040 Interpretation.
In the interpretation and application of this chapter, all provisions shall be liberally construed to serve the purpose of this chapter; deemed neither to limit nor repeal any other powers under state statute; and considered adequate mitigation under SEPA unless a proposed use or activity poses an unusual or extraordinary risk. (Ord. 1227 § 1.4, 1998).
13.30.050 Severability.
If any clause, sentence, paragraph, section or part of this chapter or the application thereof to any person or circumstances shall be adjudged by any court or competent jurisdiction to be invalid, such order or judgment shall not affect or invalidate the remainder of any part thereof to any other person or circumstances and to this end the provisions of each clause, sentence, paragraph, section or part of this chapter are hereby declared severable. (Ord. 1227 § 1.5, 1998).
13.30.060 Applicability.
This chapter shall govern all new construction and redevelopment activities which would change the point of discharge from the site, discharge surface waters at a higher velocity than that of the pre-development discharge rate, or discharge sediment or pollutants from the site, including but not limited to, the following:
A. Subdivisions and short subdivisions creating new building lots;
B. Land alteration, including individual building lots;
C. Construction of new buildings or structures, including single-family residences;
D. Remodeling to buildings or structures, including single-family residences;
E. Construction of new public or private roadways and extension of existing public or private roadways.
The city of South Bend shall not grant any permit, license or other development approval to alter the condition of any land, water, or vegetation, or to construct or to alter any structure or improvement, nor shall any person alter the condition of any land, water, or vegetation, or construct or alter any structure or improvement, for any development proposal which requires a governmental permit regulated by this chapter, except in compliance with the provisions of this chapter. Failure to comply with the provisions of this chapter shall cause the violator to be subject to enforcement procedures under SBMC 13.30.170. (Ord. 1227 § 2.1, 1998).
13.30.070 Relationship to other regulations.
Development activities covered under this chapter may also be subject to other regulations, permit authority review, and approvals. No permit granted pursuant to this chapter shall remove the applicant’s obligation to comply in all respects with provisions of any federal, state, or local law or regulation. (Ord. 1227 § 2.2, 1998).
13.30.080 Relationship to property valuation.
The Pacific County assessor shall consider any restrictions in this chapter in assessing property in South Bend. (Ord. 1227 § 2.3, 1998).
13.30.090 Exemptions.
The following activities shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the applicable provisions of other South Bend ordinances:
A. Emergency construction, which if not performed immediately, would substantially endanger public health, safety and welfare. Persons undertaking such action shall notify the administrator within one working day following commencement of the emergency activity. Following such notification, the administrator shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the administrator determines that the action taken or any part of the action taken was beyond the scope of allowed emergency actions, then the enforcement provisions of SBMC 13.30.170 shall apply.
B. Routine agricultural operations, such as harrowing and plowing.
C. Clearing and grading for agricultural purposes; provided, that said activity is in compliance with the South Bend resource lands and critical areas ordinance.
D. Operation, maintenance, or repair of existing structures, utilities, sewage disposal systems, water systems, drainage facilities, ponds, flood control facilities, and electric and communications facilities.
E. Restoration, resurfacing, or maintenance of public roads, logging roads, agricultural roads, or private roads when carried out within the existing right-of-way and which does not increase the area of impervious surface. Rehabilitation work requiring widening of existing pavement or shoulders beyond the road footprint, construction of new roads, and extension of existing roads shall not be exempt from the requirements of this chapter.
F. Maintenance, repair, or operation of existing structures, facilities, and improved areas accessory to a single-family residence or duplex on a single tax lot.
G. Modification of an existing single-family dwelling, multifamily dwelling, or commercial establishment which does not: change the land use or zoning; expand the primary building footprint; create a discharge of runoff or sediment to adjoining property, rights-of-way, or waters of the United States; or result in alteration of more than five percent of the parcel area.
H. Site investigation work necessary for project design, environmental permitting, or land use applications such as surveys, geotechnical or hydrogeological investigations, infiltration tests, and other related activities.
I. Activities aimed at controlling spartina and other noxious weeds.
J. Earth and/or stone fill not in excess of 24 cubic yards in any calendar year.
However, any person engaging in said exempt activities shall use best management practices to minimize potential impacts to the greatest extent practicable. Disturbed areas resulting from exempt activities shall be restored to original conditions to the greatest extent practicable. (Ord. 1227 § 2.4, 1998).
13.30.100 Permit required.
A city of South Bend development permit is required by the city prior to initiating any land alteration activity not exempted by this chapter. Other permits, approvals, or agreements may also be required by other jurisdictions. (Ord. 1227 § 2.5, 1998).
13.30.110 Application review process.
The following describe the procedure for development permit application and review:
A. Determine whether the proposed activity is exempt from this chapter. Exempt activities are defined in SBMC 13.30.090. Certain exemptions only apply if the activity complies with best management practices defined in the land alteration and surface water control standards and/or includes restoration after the activity is completed. If the proposed activity meets any of the listed exemptions, including any best management practice and/or restoration requirements, no development permit is required.
B. If the proposed activity is not exempt, the applicant shall complete a development permit application. The development permit application shall be submitted on forms provided by the city of South Bend.
C. The administrator shall review the application together with maps, other references, and other information to determine if an erosion control plan and/or surface water control plan must be prepared as required by the land alteration and surface water control standards. If the application meets all requirements of the standards and an erosion control plan or surface water control plan is not required, a permit for requested development activity will be issued.
D. If the administrator determines that either an erosion control plan, surface water control plan or earth stabilization plan is required, it shall be prepared by a qualified professional as defined in the standards. The plan shall be prepared in the form defined in the standards. The administrator shall review the plans for conformance with the requirements of the land alteration and surface water control standards. If the plan(s) meets all requirements of the standards, a permit for requested land alteration activities will be issued.
E. If the administrator determines that the application and/or the plans do not satisfy the requirements of the land alteration and surface water control standards, the application and/or plans shall be rejected and no permit will be issued. The applicant will be notified of such rejection and be provided opportunity to correct noted deficiencies.
F. If, as a result of the rejection notification, the applicant believes that he or she is entitled to a variance from one or more of the requirements of this chapter and/or the standards, the applicant may request a variance as described in SBMC 13.30.120.
G. If the applicant believes that the requirements of this chapter, including any request for a variance, leave the applicant with no reasonable economically viable use of his property, the applicant may apply for a reasonable use exception pursuant to SBMC 13.30.130. (Ord. 1227 § 2.6, 1998).
13.30.120 Variance from standards.
A variance from the requirements of this chapter may be authorized in a specific case where the variance will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship.
A. The South Bend board of adjustment (“board”) shall hear and decide on all variance requests. The board shall grant the variance if the applicant demonstrates that the requested variance conforms to all of the criteria set forth below:
1. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved, such as size, shape, topography, or location, and which are not applicable to other lands, structures, or buildings in the same district;
2. That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties under the terms of this chapter;
3. That the special conditions and circumstances do not result from the actions of the applicant;
4 That the granting of the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances;
5. That the variance requested is the minimum necessary to afford relief;
6. That to afford relief the requested variance will not create significant impacts to critical areas and resource lands and will not be detrimental to the public welfare;
7. That the proposed activity will substantially meet surface water discharge control and water quality goals established by or implicit in the land alteration and surface water control standards and surface water control standards of the city of South Bend;
8. That the proposed activity will not result in lower soil stability.
B. The administrator shall process variance requests according to Chapter 16.75 SBMC. 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.
C. In granting any variance, the board shall prescribe such conditions and safeguards as are necessary to secure adequate protection of the altered land and adjacent properties from adverse impacts. (Ord. 1227 § 2.7, 1998).
13.30.130 Reasonable use exception.
If the application of this chapter would result in denial of all reasonable and economically viable use of a property, and if such reasonable and economically viable use of the property cannot be obtained by consideration of a variance pursuant to SBMC 13.30.120 of one or more individual requirements of this chapter, then a landowner may seek a reasonable use exception from the requirements of this chapter. The reasonable use exception requests shall follow the variance procedures articulated in SBMC 13.30.120, and shall only be granted if the following criteria are met:
A. The application of this chapter would deny all reasonable and economically viable use of the property so that there is no reasonable and economically viable use with a lesser impact than that proposed;
B. The proposed development does not pose a threat to the public health and safety; and
C. Any proposed land alteration will be the minimum necessary to allow reasonable and economically viable use of the property. (Ord. 1227 § 2.8, 1998).
13.30.140 Appeals.
All appeals shall be administered according to the provisions of Chapter 16.75 SBMC. (Ord. 1227 § 2.9, 1998).
13.30.150 Designation of administrator.
The city supervisor or his/her designee shall be responsible for applying the provisions and requirements of this chapter. (Ord. 1227 § 2.10, 1998).
13.30.160 Fees.
A. Application fee: $15.00. At the time a land alteration permit application is made, the applicant shall pay to the city clerk an application fee to compensate the city for their costs of processing and reviewing the application.
B. Plan review and inspection fee: minimum $25.00. If, following review of the permit application, the administrator determines that an erosion control plan, surface water control plan and/or earth stabilization plan is required to be prepared by the applicant, the applicant shall pay to the city clerk a plan review and inspection fee. Said fee shall be submitted at the time of submitting said plan to the administrator.
C. Return inspection fee: $10.00. If circumstances or conditions require return inspection(s) of completed work, the applicant requesting a return inspection shall pay to the city clerk a fee for each return inspection.
D. South Bend licensed earthwork contractors will be licensed and bonded by the state and will pay a one-time annual fee of $150.00 in lieu of subsections (A), (B) and (C) of this section.
E. Nonlicensed South Bend earthwork contractors will pay according to fee schedule of subsections (A), (B) and (C) of this section.
The administrator shall not accept for review any such plan, nor issue any permit, nor in any manner approve of the commencement of construction until said fees are paid.
In addition to any other remedies for failure to pay said fees, the director may suspend, revoke, or deny development permits required by the city and applied for by the land owner who failed to pay said fees. (Ord. 1227 § 2.11, 1998).
13.30.170 Penalties and enforcement.
A. Any person who violates any of the provisions of this chapter is guilty of a misdemeanor, and each day or portion thereof during which a violation is committed, continued, or not permitted shall constitute a separate criminal offense. The maximum penalty for each violation is a fine of not more than $1,000 or imprisonment for not more than 90 days, or both such imprisonment and fine.
B. When any permittee fails to comply with the terms of a permit, erosion control plan, or surface water control plan issued, approved, or imposed under this chapter, the administrator may issue a written order to immediately stop all work except that which is necessary to bring the project into compliance with said permit and/or plan(s). If any permittee fails to comply with such order, that permittee shall be guilty of a misdemeanor, and each day or portion thereof during which a violation is committed, continued, or not permitted shall constitute a separate offense. The penalty for each violation shall be as defined in subsection (A) of this section. If any person does not comply with any such order within 30 calendar days of its issuance, the administrator may, in addition to any other penalty defined herein, revoke the relevant permit or approval.
C. Any disposition of a violation pursuant to this chapter shall not absolve a person from correcting or abating a violation and shall not prevent the prosecuting authority from pursuing a criminal prosecution, other civil action including, but not limited to, injunctive relief, license revocation, and abatement, or all of the above. If the city of South Bend prevails in a separate civil action, the court may award the city of South Bend reasonable costs including, but not limited to, the costs of the responsible officials’ time, witness fees, attorneys’ fees, court costs, and the costs to the city of South Bend to abate the violation or to enforce any court order.
D. Any or all of the remedies, as articulated in this section, may be utilized by the city of South Bend to enforce this chapter. Nothing contained in this chapter shall prevent the city of South Bend from taking such other lawful action as is necessary to prevent or remedy any violation committed herein by any person. (Ord. 1227 § 2.13, 1998).
13.30.180 Nonconforming activities.
An established use or existing structure that was lawfully permitted prior to adoption of this chapter, but which is not in compliance with this chapter, may continue subject to the following:
A. Nonconforming uses shall not be expanded or changed in any way that increases the nonconformity without a permit or other approval issued pursuant to the provisions of this chapter;
B. Existing structures shall not be expanded or altered in any manner which will increase the nonconformity without a permit or other approval issued pursuant to the provisions of this chapter;
C. Activities or uses which are discontinued for 12 consecutive months shall be allowed to resume only if they are in compliance with this chapter; and
D. Nonconforming structures destroyed by fire, explosion, or other casualty may be replaced or restored if reconstruction of the same facility is commenced within 12 months of such damage. The reconstruction or restoration shall not serve to expand, enlarge, or increase the extent of the nonconformity. (Ord. 1227 § 2.14, 1998).
13.30.190 Waste discharge into drainage systems.
It shall be considered a violation of this chapter to:
A. Cause or permit trash, rubbish, litter, vegetative matter or any form of debris directly or indirectly to enter a storm drainage system or to discard such matter on surfaces which drain to conveyance systems;
B. Cause or permit to directly or indirectly enter a storm drainage system any pollutants including, but not limited to, sewage, septage, oils, petroleum products, ethylene glycol, paints, paint thinners, pesticides fertilizers, soaps, detergents, washdown wastes, swimming pool wastewater, and materials on lists of pollutants in the following regulations as amended:
1. Discarded Chemicals List, 173-303-9903 WAC;
2. Toxic Dangerous Waste List, 173-303-101 WAC;
3. Dangerous Waste Sources List, 173-303-9904 WAC;
4. Dangerous Waste Constituents List, 173-303-9905 WAC;
5. Dangerous Waste Mixtures List, 173-303-084 WAC;
6. Persistent Dangerous Waste List, 173-303-102 WAC;
C. Cause or permit damage to public or private storm drainage facilities;
D. Cause or permit horses, cattle, or other domestic animals to enter drainage systems or waters of the United States;
E. Cause or permit untreated runoff from stables, pastures, paddocks, corrals, kennels, or other animal enclosures to directly or indirectly enter into drainage systems or waters of the United States;
F. Cause or permit grading, clearing, grubbing, filling, or any other land surface changes such as traversing in a motor vehicle to take place in such a way as to allow sediment from the property to directly or indirectly enter into a drainage system or waters of the United States;
G. Cause or permit work that would transmit sediment from one part of a drainage system to another;
H. Cause or permit the discharge into a drainage system or waters of the United States of materials that would cause the temperature of the receiving water to increase one degree Fahrenheit or more;
I. Cause or permit a discharge into a drainage system or waters of the United States of a material that would cause the water quality of the receiving water to degrade below the state of Washington water quality standard for that water body;
J. Unless approved by the administrator, cause or permit the placement of any obstructions, in waters of the United States, which would prohibit free fish passage under all flow conditions; or
K. Unless approved by the administrator, cause or permit the removal from waters of the United States, except under emergency conditions, of any naturally occurring woody debris. Emergency conditions may consist of flow blockage which, in the discretion of the Administrator, threatens life or property.
From the day such damage is sustained or materials are discharged as described in this section until they are removed or damage repaired, each day shall count as a separate offense and shall be subject to the penalties described in SBMC 13.30.170. (Ord. 1227 § 3.0, 1998).