Chapter 16C.03
APPLICATION AND REVIEW PROCEDURES

Sections:

ARTICLE I – GENERAL PROVISIONS

16C.03.01    Critical Area Development Authorization Required.

ARTICLE II – INQUIRY AND EARLY ASSISTANCE

16C.03.02    Critical Area Identification Form and Critical Area Report Requirements.

16C.03.03    Pre-application Conference.

16C.03.04    Technical Assistance Conference.

ARTICLE III – ABBREVIATED REVIEW ALTERNATIVES

16C.03.05    Minor Activities Allowed Without a Permit.

16C.03.10    Mitigation Requirements.

ARTICLE IV – REVIEW PROCESS

16C.03.11    Application Submittal.

16C.03.12    Determination of Review Process.

16C.03.13    Development Authorization – Review Procedure.

16C.03.14    Authorization Decisions – Basis for Action.

16C.03.15    Conditional Approval of Development Authorization.

16C.03.16    Fees and Charges.

ARTICLE V – CRITICAL AREAS REPORTS

16C.03.17    Critical Areas Report Requirements.

16C.03.18    Supplemental Report Requirements for Specific Critical Areas.

ARTICLE VI – PERMIT REVIEW CRITERIA

16C.03.20    Standard Development Permit.

16C.03.23    Adjustment.

16C.03.24    Reasonable Use Exception.

16C.03.25    Minor Revisions to Approved Uses or Developments.

16C.03.26    Non-Conforming Uses and Facilities.

16C.03.27    General Critical Areas Protective Measures.

ARTICLE I – GENERAL PROVISIONS

16C.03.01 Critical Area Development Authorization Required.

(1)    No new development, construction or use shall occur within a designated critical area without obtaining a development authorization in accordance with the provisions of this title, except for those provided for in Section 16C.03.05 (Minor Activities Allowed Without a Permit).

(2)    With respect to application and review procedures, it is the intent of this title to streamline and coordinate the authorization of critical area projects which require other local, state and/or federal permits or authorizations. Any nonexempt development, construction or use occurring within a designated critical area shall be processed according to the provisions of this chapter and the Project Permit Administration Ordinance (YCC Title 16B).

(3)    Approval of a development authorization under this title shall be in addition to, and not a substitute for, any other development permit or authorization required by Yakima County. Approval of a development authorization under this title shall not be interpreted as an approval of any other permit or authorization required of a development, construction or use.

(4)    Permits issued in accordance with this title shall run with the land and conveyed to the applicant, their grantees, and assignees.

(5)    Coordination with Other Jurisdictions.

(a)    Where all or a portion of a standard development project site is within a designated critical area and the project is subject to another local, state or federal development permit or authorization, then the Administrative Official shall determine whether the provisions of this title can be processed in conjunction with, and as part of, that local, state or federal development permit or authorization, or whether a separate critical area development authorization application and review process is necessary. The decision of the Administrative Official shall be based upon the following criteria:

(i)    The nature and scope of the project and the critical area features involved or potentially impacted;

(ii)    The purpose or objective of the permit or authorization and its relationship to protection of the critical area;

(iii)    The feasibility of coordinating the critical area development authorization with the permitting agency;

(iv)    The timing of the permit or authorization.

(b)    When a determination has been made that provisions of this title can be handled through another applicable development permit or authorization process, project proponents will be required to provide any additional site plans, data and other information necessary as part of that process to fully evaluate the critical area project and ensure its compliance with this title. The Administrative Official’s decision on the critical area development authorization shall be coordinated to coincide with other permits and authorizations.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 6-2011 § 2 (Exh. A) (part), 2011; Ord. 13-2007 §1 (Exh. A)(16C.03.01), 2007).

ARTICLE II – INQUIRY AND EARLY ASSISTANCE

16C.03.02 Critical Area Identification Form and Critical Area Report Requirements.

(1)    Prior to the review or consideration of any proposed development, construction or use, except those provided under Applicability (Section 16C.01.05), and Minor Activities Allowed Without a Permit (Section 16C.03.05), the County shall consider available information to determine if a critical area is likely to be present. The presence of a critical area found on the paper and electronic maps within or adjacent to the property proposed for development is sufficient foundation for the Administrative Official to require preparation of a critical area identification form, provided by the department, and a preliminary site plan. This critical area identification form and preliminary site plan may be one piece of information used to analyze how a critical area could be affected by a development proposal. To the extent possible, all critical area features must be identified on the critical area identification form and shown on the preliminary site plan prior to the Administrative Official determining whether the development is subject to this title.

(2)    Upon receipt of a critical area identification form and site plan, the Administrative Official will typically conduct a site examination to review critical area conditions on site. The Administrative Official shall notify the property owner of the site examination prior to the site visit. Reasonable access to the site shall be provided by the property owner for the site examination during any proposal review, restoration, emergency action, or monitoring period.

(3)    The Administrative Official shall review available information pertaining to the site and the proposal and make a determination as to whether any critical areas may be affected by the proposal. If so, a more detailed critical areas report shall be submitted in conformance with Section 16C.03.17 (Critical Areas Report Requirements) and Section 16C.03.18 (Supplemental Report Requirements for Specific Critical Areas), except as provided below:

(a)    No critical areas present. If the Administrative Official is able to sufficiently determine that a critical area does not exist within or adjacent to the project area, then a critical areas report is not required;

(b)    Critical areas present, but no impact. If the Administrative Official is able to determine the existence, location and type of critical area sufficiently to indicate that the project area is not within or adjacent to the critical area and that the proposed activity is unlikely to degrade the functions or values of the critical area, then the Administrative Official may waive the requirement for a critical areas report. A summary of the determination shall be included in any staff report or decision on the permit or review;

(c)    Critical areas may be affected by proposal. If the project area is within or adjacent to a critical area or buffer the Administrative Official may waive the requirement for a critical areas report if:

(i)    The Administrative Official is sufficiently able to determine the existence, location and type of the critical area;

(ii)    The project is of a small scale or is uncomplicated in nature, such that a specialist is not needed to identify impacts and mitigation. Work within a wetland, stream channel, or a vegetative buffer would generally not meet this provision;

(iii)    The applicant agrees to provide mitigation that the Administrative Official deems adequate, with consultation from resource agencies, to mitigate for anticipated impacts. Restoration of degraded areas may serve as mitigation; and

(iv)    A summary of the determination shall be included in any staff report or decision on the permit or review;

(d)    If the applicant wants greater assurance of the accuracy of the critical area review determination, the applicant may choose to hire a qualified professional to provide such assurances;

(e)    As guidance on the practical application of the requirement for critical areas reports, reports will generally fall into the following groups based on increasing complexity and cost of the report:

(i)    Determining the absence of a critical area (sometimes resulting when initial indicators show the likely presence of a critical area);

(ii)    Determining the existence, location and type of a critical area;

(iii)    Determining impacts of an encroachment on a critical area and general mitigation measures;

(iv)    Developing a compensatory mitigation plan for replacement or mitigation of lost wetland or stream channel area.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 6-2011 § 2 (Exh. A) (part), 2011; Ord. 13-2007 §1 (Exh. A)(16C.03.02), 2007).

16C.03.03 Pre-application Conference.

Any new development, construction or use falling under the provisions of this title shall be subject to a pre-application conference, except that project review for flood hazards shall follow the pre-application requirements established to administer Chapters 16C.05.20 through 16C.05.72 (Flood Hazard Areas). The department shall schedule a pre-application conference for as soon as is reasonably possible to allow attendance by the project proponent and necessary staff. To assist in project review and discussion, prior to the pre-application conference, the project proponent must submit a preliminary site plan showing the nature and scope of the proposed project along with any existing features of the property having a relationship to the project. The pre-application conference is intended to allow the Administrative Official to:

(1)    Establish the scope of the project and the critical area features involved or potentially impacted;

(2)    Consider the degree to which the project may affect or impair a designated critical area and identify potential concerns that may arise;

(3)    Identify other permits and authorizations which the project proponent may need to obtain;

(4)    Determine whether the project will be processed through the development authorization procedures of this title or coordinated through the review and approval procedures of another development permit or authorization required of the project from Yakima County;

(5)    Provide the proponent with resources and technical assistance (such as maps, scientific information, other source materials, etc.) to assist the proponent in meeting the provisions of this title and any applicable rules and regulations of other agencies and jurisdictions;

(6)    Determine whether there is a need for a preliminary site assessment or a technical assistance conference to better define the critical area issues and alternatives;

(7)    Determine whether the project requires a permit, and what type of permits or reviews may be needed. Final determination of necessary permits will be made based on the project design and submittal materials;

(8)    Consider whether a preliminary site assessment should be scheduled in the field to determine the applicability of the development standards of this title to the project, based on information contained in the preliminary site plan.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 6-2011 § 2 (Exh. A) (part), 2011; Ord. 13-2007 §1 (Exh. A)(16C.03.03), 2007).

16C.03.04 Technical Assistance Conference.

If requested by the project proponent or otherwise determined necessary, the department will arrange a meeting of representatives of those agencies and organizations with expertise, interest, or jurisdiction in the project. In conjunction with the invitation to attend the technical assistance conference, the department will provide the potential participants with a project summary compiled from the pre-application conference. The technical assistance conference may also involve a preliminary site assessment, if it is determined that resolution of issues related to the project can be achieved through an on-site review. The purpose of the technical assistance conference will be to:

(1)    Confirm and define the requirements of any other applicable local, state or federal regulations;

(2)    Clarify any identified procedural or regulatory conflicts and define the alternative courses of action available to the applicant in addressing project requirements;

(3)    Determine whether compliance with other existing statutes and regulations will adequately address the provisions of this title;

(4)    Provide the proponent with guidance, available data and information that will assist in complying with the provisions of this title and other ordinances and regulations;

(5)    Provide the proponent with guidance concerning project modifications or site enhancements that would eliminate or minimize impacts to the critical area;

(6)    Provide the proponent with alternatives for securing data, information, or assistance necessary to the project but not available through the pre-application conference;

(7)    Determine whether a critical area report is necessary, and if so, the qualifications, skills and expertise required of a consultant to perform the special study.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.04), 2007).

ARTICLE III – ABBREVIATED REVIEW ALTERNATIVES

16C.03.05 Minor Activities Allowed Without a Permit.

(1)    The following activities are included under Section 16C.01.05(1) (Applicability) and are allowed without a permit:

(a)    Maintenance of existing, lawfully established areas of crop vegetation, landscaping (including paths and trails) or gardens within a regulated critical area or its buffer. Examples include harvesting or changing crops, mowing lawns, weeding, harvesting and replanting of garden crops, pruning, and planting of non-invasive ornamental vegetation or indigenous native species to maintain the general condition and extent of such areas. Excavation, filling, and construction of new landscaping features, such as concrete work, berms and walls, are not covered in this provision and are subject to review;

(b)    Minor maintenance and/or repair of lawfully established structures that do not involve additional construction, earthwork or clearing. Examples include painting, trim or facing replacement, re-roofing, etc. Maintaining canals, ditches, drains, wasteways, etc. without expanding their original configuration is not considered additional earthwork. Repair of levees operated by the Yakima County Flood Control Zone District, as long as the original dimensions and location are maintained, is not considered additional earthwork. All cleared materials shall be placed outside the stream corridor, wetlands, and buffers;

(c)    Low impact activities such as hiking, canoeing, viewing, nature study, photography, hunting, fishing, education or scientific research;

(d)    Creation of unimproved private trails that do not cross streams or wetlands that are less than two (2) feet wide and do not involve placement of fill or grubbing of vegetation;

(e)    Planting of native vegetation;

(f)    Noxious weed control outside vegetative buffers identified in Chapter 16C.06.16, except for area wide vegetation removal/grubbing;

(g)    Noxious weed control within vegetative buffers, if the criteria listed below are met. Control methods not meeting these criteria may still apply for a development authorization as applicable:

(i)    Hand removal/spraying of individual plants only;

(ii)    No area wide vegetation removal/grubbing;

(h)    Agricultural and other accessory uses or structures that maintain the existing natural vegetation (rangeland, grazing, stock fences, outdoor recreation, etc.).

(i)    The restoration of critical areas for habitat restoration projects that do not include excavation or fill.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 6-2011 § 2 (Exh. A) (part), 2011: Ord. 1-2011 § 2 (Exh. A (2A)), 2011; Ord. 2-2009 § 2 (Exh. A (3)), 2009; Ord. 13-2007 §1 (Exh. A)(16C.03.05), 2007).

16C.03.10 Mitigation Requirements.

(1)    All developments 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 order of preference:

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

(b)    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;

(c)    Rectifying the impact by repairing, rehabilitating or restoring the affected environment;

(d)    Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;

(e)    Compensating for the impact by replacing, enhancing, or providing substitute resources or environments;

(f)    Monitoring the impact and taking appropriate corrective measures.

(2)    Mitigation for individual actions may include a combination of the above measures.

(3)    Unless otherwise provided in this title, if alteration to the critical area is unavoidable, all adverse impacts to or from critical areas and buffers resulting from a development proposal or alteration shall be mitigated in accordance with an approved Mitigation Plan. Mitigation shall not be implemented until after approval of the Mitigation Plan.

(4)    Mitigation shall be in-kind and on-site, when possible, and sufficient to maintain the functions and values of the critical area, and to prevent risk from a hazard posed by a critical area. When necessary, mitigation may be provided that is out-of-kind and/or off-site.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.10), 2007).

ARTICLE IV – REVIEW PROCESS

16C.03.11 Application Submittal.

(1)    Application for a development authorization under this title shall be made on forms provided by the department. The application submittal shall include a site plan drawn to scale showing:

(a)    The actual shape and dimensions of the property site to be used;

(b)    Existing and proposed structures;

(c)    Excavation, fill, drainage facilities, topography, slope; and

(d)    Such other information as is needed to determine the nature and scope of the proposed development, including the maximum extent of the project site with respect to construction, excavation, equipment and material storage, and other project related work.

(2)    The site plan should also show the location of all critical areas, such as those identified in Sections 16C.03.02 (Critical Area Identification Form and Critical Area Report Requirements) and 16C.03.17 (Critical Areas Report Requirements), include all required critical areas reports prepared in conformance with Section 16C.03.17, and include the permit information required either in YCC Title 16B (Project Permit Administration) or in Chapter 16C.05.44 (Flood Hazard Protection Administration), as appropriate.

(3)    To be accepted as complete, a critical area development authorization application must include all maps, drawings and other information or data specified by this title or requested on the basis of the pre-application conference (Section 16C.03.03), or technical assistance conference (Section 16C.03.04).

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.11), 2007).

16C.03.12 Determination of Review Process.

(1)    The Administrative Official shall determine from the application submittal, and other available information what type of permit or review is required under this title. The Administrative Official shall make such determination as early in the application process as is possible and shall inform the project applicant in writing of any application needs. Available information used in this determination may include:

(a)    Critical areas identification form;

(b)    Pre-application conference information;

(c)    Technical assistance conference information.

(2)    Specific information on when a permit or review is required, its review process type and review criteria are found in the section for each permit or review. However, a brief description of each type of permit or review is provided in Table 3-1 below. Some permits or reviews are general and all projects will have a general review. Some permits are more specialized and apply only in specific cases or situations. More than one permit or review may be needed for a project.

Table 3-1

General Permits or Reviews

Standard Development. Standard development projects include any development not subject to RCW Chapter 90.58, the Shoreline Management Act.

Specific Permits

Adjustment. Administrative Adjustments are used outside Shoreline jurisdiction when a project needs to reduce or adjust a development standard.

Non-conforming Use or Facility Alteration. Non-conforming Use or Facility Alterations are necessary when an existing legal use that currently does not conform to this title is to be altered.

Minor revisions to an Existing Permit. Minor Revisions to an Existing Permit allow simplified review of certain changes to a project that has previously received a permit.

Reasonable Use Exceptions. Reasonable Use Exceptions provide an alternative to landowners when all reasonable use of a property has been prohibited.

Flood Hazard Permit. A Flood Hazard Permit is required for activities within floodplains. It is different in that it has special administrative provisions, and may include many of the specific permit types noted above within it, which are described in chapters 16C.05.20 through 16C.05.72. It is focused mainly on construction methods, but may include site design to minimize impacts to adjacent properties or resources, or to locate the proposed development in areas where depth and velocity of floodwaters during the base flood do not exceed the current standards for construction of human occupied structures or safe access.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 6-2011 § 2 (Exh. A) (part), 2011; Ord. 13-2007 §1 (Exh. A)(16C.03.12), 2007).

16C.03.13 Development Authorization – Review Procedure.

Upon submittal and acceptance of a completed development authorization application, the Administrative Official shall process and review the application as follows, except that permits or reviews required for critical areas under Chapters 16C.05.20 through 16C.05.72 (Flood Hazard Areas) shall be processed using the permit development standards, approval criteria and other provisions established in Chapters 16C.05.20 through 16C.05.72.

(1)    Development authorizations shall be processed consistent with review procedures provided in YCC Title 16B (Project Permit Administration), and with any specific processes requirements provided in Sections 16C.03.20 through 16C.03.26 (specific permit descriptions), including but not limited to:

(a)    Submittals;

(b)    Completeness review;

(c)    Notices;

(d)    Hearings;

(e)    Decisions; and

(f)    Appeals.

(2)    Development authorizations shall be reviewed for conformance with the applicable development standards provided in Section 16C.03.27 (General Critical Areas Protection Measures), and in Chapters 16C.06 through 16C.09, except that:

(a)    For rangeland livestock grazing operations, the Administrative Official may waive compliance with development standards in Chapters 16C.06 (Fish and Wildlife Habitat and the Stream Corridor System), 16C.07 (Wetlands), 16C.08 (Geologically Hazardous Areas), and 16C.09 (CARA), except for those uses and activities listed in Section 16C.06.10 (Prohibited Uses). To qualify for this provision, a Resource Management Plan must be provided that has been prepared using all applicable U.S. Department of Agriculture – National Resource Conservation Service best management practices designed to protect streams, wetlands, vegetative buffers, erosion hazards, and floodplains from grazing operations. An acceptable Resource Management Plan is deemed to consist of acceptable critical areas protection measures capable of dealing with impacts of grazing activities dispersed across large areas. This provision is not intended to apply to pasture grazing, hobby farms, or confinement feeding operations.

(3)    Decisions on a development authorization shall be consistent with Sections 16C.03.14 (Authorization Decisions – Basis for Action), 16C.03.15 (Conditional Approval of Development Authorization) and with any specific decision criteria provided under the sections for each relevant permit type, as provided in Sections 16C.03.20 through 16C.03.26 (specific permit descriptions).

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.13), 2007).

16C.03.14 Authorization Decisions – Basis for Action.

The action on any development authorization under this title shall be based upon the following criteria:

(1)    Impact of the project to critical area features on the property or on abutting or adjacent properties;

(2)    Danger to life and property that would likely occur as a result of the project;

(3)    Compatibility of the project with the critical area features on, adjacent to, or near the property;

(4)    Conformance with the applicable development standards in this title;

(5)    Requirements of other applicable local, state or federal permits or authorizations, including compliance with flood hazard mitigation requirements of Chapters 16C.05.20 through 16C.05.72;

(6)    Adequacy of the information provided by the applicant or available to the department;

(7)    Ability of the project to satisfy the purpose and intent of this title;

(8)    Based upon the project evaluation, the decision maker shall take one of the following actions:

(a)    Grant the development authorization;

(b)    Grant the development authorization with conditions, as provided in Section 16C.03.15 (Conditional Approval of Development Authorization), to mitigate impacts to the critical area feature(s) present on or adjacent to the project site;

(c)    Deny the development authorization;

(9)    The decision by the Administrative Official on the development authorization shall include written findings and conclusions stating the reasons upon which the decision is based.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.14), 2007).

16C.03.15 Conditional Approval of Development Authorization.

In granting any development authorization, the decision maker may impose conditions to:

(1)    Accomplish the purpose and intent of this title;

(2)    Eliminate or mitigate any identified specific or general negative impacts of the project on the critical area;

(3)    Restore important resource features that have been degraded or lost because of past or present activities on the project site;

(4)    Protect designated critical areas from damaging and incompatible development;

(5)    Ensure compliance with specific development standards in this title.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.15), 2007).

16C.03.16 Fees and Charges.

The board of county commissioners establishes the schedule of fees and charges listed in Yakima County Code, Title 20 (Yakima County Fee Schedule), for development authorizations, adjustments, appeals and other matters pertaining to this title.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.16), 2007).

ARTICLE V – CRITICAL AREAS REPORTS

16C.03.17 Critical Areas Report Requirements.

(1)    The Administrative Official may require a critical areas report, paid for by the applicant in accordance with YCC Chapter 16B.04, where determined necessary through the critical area identification form, technical assistance conference, site investigation, or other portion of the project review.

(2)    A qualified professional, as defined by this title, shall prepare the report utilizing best available science. The intent of these provisions is to require a reasonable level of technical study and analysis sufficient to protect critical areas. The analysis shall be commensurate with the value or sensitivity of a particular critical area and relative to the scale and potential impacts of the proposed activity.

(3)    The critical area report shall:

(a)    Demonstrate that the submitted proposal is consistent with the purposes and specific standards of this title;

(b)    Describe all relevant aspects of the development proposal; all critical areas adversely affected by the proposal including any geologic or flood hazards; all risks to critical areas, the site, and other public and private properties and facilities resulting from the proposal; and assess impacts on the critical area from activities and uses proposed; and

(c)    Identify proposed mitigation and protective measures as required by this title.

(4)    The critical areas report shall include information to address the supplemental report requirements for specific critical areas (16C.03.18).

(5)    The Administrative Official shall review the critical areas report for completeness and accuracy, and shall consider the recommendations and conclusions of the critical areas report to assist in making decisions on development authorizations and to resolve issues concerning critical areas jurisdiction, appropriate mitigation, and protective measures.

(6)    Critical areas reports shall generally be valid for a period of five (5) years, unless it can be demonstrated to the satisfaction of the Administrative Official that the previously prepared report is adequate for current analysis. Future land use applications may require preparation of new, amended, or supplemental critical area assessment reports. Reports prepared for nearby lands may be deemed acceptable by the Administrative Official, in whole or in part, if relevant to the current analysis and meeting the above standards. The Administrative Official may also require the preparation of a new critical area assessment report or a supplemental report when new information is found demonstrating that the initial assessment is in error. If the Administrative Official requires more information in the report, he/she shall make the request in writing to the applicant stating what additional information is needed and why.

(7)    The Administrative Official may reject or request revision of the critical areas report when the Administrative Official can demonstrate that the assessment is incomplete, or does not fully address the critical areas impacts involved.

(8)    To avoid duplication, the reporting requirements of this chapter shall be coordinated if more than one critical area report is required for a site or development proposal.

(9)    Applicants should provide reports and maps to the County in an electronic format that allows site data to be incorporated into the County critical areas database, provided that the County may waive this requirement for single-family developments. Applicants are encouraged to coordinate with the Administrative Official regarding electronic submittal guidelines. This requirement shall not be construed as a requirement to use specific computer software.

(10)    At a minimum, a critical areas report shall include the following information:

(a)    A site plan showing the proposed development footprint and clearing limits, and all relevant critical areas and buffers within and abutting the site, including but not limited to effects related to clearing, grading, noise, light/glare, modification of surface or subsurface flow, drilling, damming, draining, creating impervious surface, managing stormwater, releasing hazardous materials, and other alterations. Projects in frequently flooded areas must comply with the requirements of Sections 16C.05.20 through 16C.05.72. For projects on or adjacent to geologically hazardous areas or areas subject to high floodwater depth or velocity, the report shall identify the type of hazard and assess the associated risks posed by the development to critical areas, the site, and other public and private properties and facilities that are the result from the proposal, and assess impacts on the critical area from activities and uses proposed;

(b)    A written description of the critical areas and buffers on or abutting the site, including their size, type, classification or rating, condition, disturbance history, and functions and values. For projects on or adjacent to geologically hazardous areas or areas subject to high floodwater depth or velocity the description shall identify the type and characteristics of the hazard;

(c)    An analysis of potential adverse critical area impacts associated with the proposed activity. For geologically hazardous areas, also assess the risks posed by the development to critical areas, the site, and other public and private properties and facilities that are the result from the proposal, and assess impacts on the critical area from activities and uses proposed;

(d)    An explanation of how critical area impacts or risks will be avoided and/or minimized, how proposed mitigation measures will prevent or minimize hazards, why the proposed activity requires a location on or access across a critical area, the on-site design alternatives, and why alternatives are not feasible;

(e)    When impacts cannot be avoided, the report shall include a plan describing mitigation to replace critical area functions and values altered as a result of the proposal, or to reduce flood or geologic hazards to critical areas, the site, and other public and private properties. For projects on or adjacent to geologically hazardous areas or areas subject to high floodwater depth or velocity the plan shall address mitigation for impacts to critical areas, the site, and other public and private properties and facilities that are the result from the proposal, and assess impacts on the critical area from activities and uses proposed;

(f)    The dates, names, and qualifications of the persons preparing the report and documentation of analysis methods including any fieldwork performed on the site; and

(g)    Additional reasonable information requested by the Administrative Official for the assessment of critical areas impacts or otherwise required by the subsequent chapters of this title.

(11)    A critical area report may be supplemented by or composed, in whole or in part, of any reports or studies required by other laws and regulations or previously prepared for and applicable to the development proposal site, as approved by the Administrative Official.

(12)    The Administrative Official may limit the required geographic area of the critical area report as appropriate.

(13)    Compensatory Mitigation Plans. When compensatory mitigation, as described in Section 16C.03.10 (Mitigation Requirements), is required or proposed for wetland areas, stream channels, or upland habitat areas, the applicant shall submit for approval by Yakima County a mitigation plan as part of the critical area report, which includes:

(a)    Environmental Goals and Objectives. The mitigation plan shall include a written report identifying environmental goals and objectives of the proposed compensation including:

(i)    A description of the anticipated impacts to the critical areas, mitigating actions proposed, and the purposes of the compensation measures, including the site selection criteria, identification of compensation goals and objectives, identification of desired resource functions, dates for beginning and completion of site compensation construction activities, and an analysis of the likelihood of success of the compensation project. The goals and objectives shall be related to the functions and values of the impacted critical area;

(b)    A review of the best available science supporting the proposed mitigation;

(c)    A description of the report author’s experience to date in restoring or creating the type of critical area proposed;

(d)    Performance Standards. The mitigation plan shall include measurable specific criteria for evaluating whether or not the goals and objectives of the mitigation project have been successfully attained;

(e)    Detailed Construction Documents. The mitigation documents shall include written specifications and plans describing the mitigation proposed, such as:

(i)    The proposed construction sequence, timing, and duration;

(ii)    Grading and excavation details;

(iii)    Erosion and sediment control features;

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

(v)    Measures to protect and maintain plants until established; and

(vi)    Documents should include scale drawings showing necessary information to convey both existing and proposed topographic data, slope, elevations, plants and project limits;

(f)    Monitoring Program. The mitigation plan shall include a program for monitoring construction of the compensation project and for assessing a completed project. A protocol shall be included outlining the schedule for site monitoring (for example, monitoring shall occur in years 1, 3, 5, and 7 after site construction), and how the monitoring data will be evaluated to determine if the performance standards are being met. A monitoring report shall be submitted as needed to document milestones, successes, problems, and contingency actions of the compensation project. The compensation project shall be monitored for a period necessary to establish that performance standards have been met, but not for a period less than five (5) years.

(g)    Contingency Plan. The mitigation plan shall include 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.

(h)    Financial Guarantees. The mitigation plan shall include financial guarantees, if necessary, to ensure that the mitigation plan is fully implemented. Financial guarantees ensuring fulfillment of the compensation project, monitoring program, and any contingency measures shall be posted in accordance with Section 16C.03.27(1) (Financial Guarantees).

(14)    Innovative Mitigation.

(a)    Yakima County encourages innovative mitigation projects that are based on the best available science. The mitigation plan shall be used to satisfy the requirements of this chapter and provide relief and/or deviation as appropriate from the specific standards and requirements thereof. Advance mitigation or mitigation banking are examples of alternative mitigation projects allowed under the provisions of this section wherein one or more applicants, or an organization with demonstrated capability, may undertake a mitigation project together if it is demonstrated that all of the following circumstances exist:

(i)    Creation or enhancement of a larger system of critical areas and open space is preferable to the preservation of many individual habitat areas;

(ii)    The group demonstrates the organizational and fiscal capability to act cooperatively;

(iii)    The group demonstrates that long-term management of the habitat area will be provided;

(iv)    There is a clear potential for success of the proposed mitigation at the identified mitigation site;

(v)    There is a clear likelihood for success of the proposed plan based on supporting scientific information and demonstrated experience in implementing similar plans;

(vi)    The proposed project results in equal or greater protection and conservation of critical areas than would be achieved using parcel-by-parcel regulations and/or traditional mitigation approaches;

(vii)    The plan is consistent with the general purpose and intent of this chapter;

(viii)    The plan shall contain relevant management strategies considered effective and within the scope of this chapter and shall document when, where, and how such strategies substitute for compliance with the specific standards herein; and

(ix)    The plan shall contain clear and measurable standards for achieving compliance with the purposes of this chapter, a description of how such standards will be monitored and measured over the life of the plan, and a fully funded contingency plan if any element of the plan does not meet standards for compliance.

(b)    Conducting mitigation as part of a cooperative process does not reduce or eliminate the required wetland replacement ratios.

(c)    Projects that propose compensatory wetland mitigation shall also use the standards in Section 16C.07.05 (Compensatory Mitigation Requirements). For those situations where a mitigation bank may provide an opportunity for mitigation, then the requirements in Section 16C.07.06 (Wetland Mitigation Banks) shall apply.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.17), 2007).

16C.03.18 Supplemental Report Requirements for Specific Critical Areas.

(1)    Stream Corridors. When a critical areas report is required for a stream corridor or hydrologically related critical area, it shall include the following:

(a)    A habitat and native vegetation conservation strategy that addresses methods to protect and enhance the functional properties listed in Section 16C.06.05 (Functional Properties);

(b)    Where there is evidence that proposed construction lies within an immediate zone of potential channel migration, representing a future hazard to the construction, a hydrologic analysis report may be required. The report shall assume the conditions of the one-hundred-year flood, include on-site investigative findings, and consider historical meander characteristics in addition to other pertinent facts and data.

(2)    Upland Wildlife. When a critical areas report is required for Upland Wildlife Habitat Conservation Areas, it shall include the following:

(a)    Habitat Assessment. A habitat assessment is an investigation of the project area to evaluate the presence or absence of such species, and habitat types with which such species have a primary association. The presence or absence assessment shall incorporate the time sensitive nature of species use. The landowner may submit an assessment prepared by the state or federal agency with jurisdiction over the species. This assessment is time sensitive and the assessment must be completed no more than 36 months prior to the date the critical areas application is deemed complete.

(b)    If the habitat assessment determines that such habitat area is present on site, a management plan is required that follows published federal, or state, management recommendations. The Administrative Official shall confer with the appropriate agency and consider their comments through the review process.

(3)    Wetlands. When a critical areas report is required for Wetlands, it shall include the following:

(a)    The exact location of a wetland’s boundary and wetland rating shall be determined through the performance of a field investigation by a qualified wetland professional applying the 1987 Corps of Engineers Wetlands Delineation Manual – (http://www.ecy.wa.gov/programs/sea/wetlands/pdf/corps87manual.pdf) as required by RCW 36.70A.175 (Wetlands to be delineated in accordance with manual), Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0) (http://www.ecy.wa.gov/programs/sea/wetlands/pdf/AridWest_Sept2008.pdf), and Western Mountains, Valleys, and Coast Region (Version 2.0) (http://www.ecy.wa.gov/programs/sea/wetlands/pdf/WestMt_May2010.pdf), and the Washington State Wetland Rating System for Eastern Washington (Ecology Publication # 14-06-030 - https://fortress.wa.gov/ecy/publications/SummaryPages/1406030.html), as amended;

(b)    All delineated wetlands and required buffers within two hundred (200) feet of the project area shall be depicted on the site plan. For areas off-site of the project site, wetland conditions within 200 feet of the project boundaries may be estimated using the best available information. Best available information should include, but not be limited to, aerial photos, land based photos, soils maps, or topographic maps;

(c)    A critical area report for wetlands shall contain an analysis of the wetlands including the following site- and proposal-related information:

(i)    A statement specifying all assumptions made and relied upon;

(ii)    Documentation of any fieldwork performed on the site, including field data sheets for delineations, the wetland rating form, baseline hydrologic data, etc.;

(iii)    A description of the methodologies used to conduct the wetland delineations, or impact analyses including references;

(iv)    Wetland category, including vegetative, faunal, and hydrologic characteristics;

(d)    For projects that will affect the wetland or its buffer, provide the following:

(i)    A habitat and native vegetation conservation strategy that addresses methods to protect and enhance on-site habitat and wetland functions and values listed in Section 16C.07.04(1) (Wetland Functions and Rating) and Section 16C.06.05 (Functional Properties);

(ii)    Mitigation sequencing pursuant to Section 16C.03.10 (Mitigation Requirements) to avoid, minimize, and mitigate impacts. Mitigation shall result in no net loss of wetland functions and values. Mitigation ratios may be necessary and should follow the guidance provided in Section 16C.07.05 (Compensatory Mitigation) of the wetland chapter.

(4)    Geologically Hazardous Areas. When a critical areas report is required for a Geologically Hazardous Area, it shall include the following, provided that the Administrative Official may determine that any portion of these requirements is unnecessary given the scope and/or scale of the proposed development:

(a)    A description of the site features, including surface and subsurface geology. This may include surface exploration data such as borings, drill holes, test pits, wells, geologic reports, and other relevant reports or site investigations that may be useful in making conclusions or recommendations about the site under investigation;

(b)    A description of the geologic processes and hazards affecting the property, including a determination of the actual hazard types for any Suspected and Risk Unknown hazards identified in the affirmative determination of hazard (Section 16C.08.04);

(c)    A description of the vulnerability of the site to seismic and other geologic processes and hazards;

(d)    A description of any potential hazards that could be created or exacerbated as a result of site development;

(e)    For developments in or affecting landslide hazard areas the report shall also include:

(i)    Assessments and conclusions regarding slope stability including the potential types of landslide failure mechanisms (e.g., debris flow, rotational slump, translational slip, etc.) that may affect the site. The stability evaluation shall also consider dynamic earthquake loading, and shall use a minimum horizontal acceleration as established by the current version of YCC Title 13 (Building Code);

(ii)    An analysis of slope recession rate shall be presented in those cases where stability is impacted or influenced by stream meandering, or other forces acting on the toe of the slope;

(iii)    Description of the run-out hazard of landslide debris to the proposed development that starts up-slope (whether part of the subject property or on a neighboring property) and/or the impacts of landslide run-out on down-slope properties and critical areas.

(5)    Flood Hazards.

(a)    Prior to authorization of any major construction project within a floodplain which can be anticipated to displace floodwaters or alter the depth or velocity of floodwaters during the base flood, an engineering report shall be prepared that establishes any new flood elevations that would result for the one-hundred-year flood frequency if the project were implemented.

(6)    Critical Aquifer Recharge Areas. When a hydrogeological report is required for CARAs, it shall include the following:

(a)    The report shall address the impact the proposed land use will have on both the quality and quantity of the water transmitted to the aquifer.

(b)    The hydrogeologic report shall be prepared by a hydrogeologist licensed in the state of Washington.

(c)    The report shall contain recommendations on appropriate BMPs (Best Management Practices) or mitigation to assure no significant degradation of groundwater quality.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 1-2011 § 2 (Exh. A (6)), 2011; Ord. 2-2009 § 2 (Exh. A (7)), 2009; Ord. 13-2007 §1 (Exh. A)(16C.03.18), 2007).

ARTICLE VI – PERMIT REVIEW CRITERIA

16C.03.20 Standard Development Permit.

(1)    Classification Criteria. Standard Development permits include any development not subject to RCW Chapter 90.58 (Shoreline Management Act).

(2)    Process. Standard Development permits shall be processed as either a Type I or II permit at the judgment of the Administrative Official, in accordance with YCC Title 16B (Project Permit Administration). Applications that are of a significant size or scope shall be processed as a Type II review with public notice. Examples of such projects include those that typically require environmental review (SEPA), filling or excavating a stream channel or wetlands, involve large amounts of fill, require large amounts of parking, etc.

(3)    Decision Criteria. Decisions on Standard Development permits shall be based on the general decision criteria found in Section 16C.03.14 (Authorization Decisions – Basis for Action).

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.20), 2007).

16C.03.23 Adjustment.

(1)    Classification Criteria - For projects not required to be processed under RCW Chapter 90.58 (Shoreline Management Act), the Administrative Official is authorized to administratively adjust the development standards specified herein. Existing structures, parcel size, property boundaries, and other constraints may preclude conformance with building setbacks, vegetative buffers, and other provisions of this chapter. Given such constraints, administrative adjustments may be authorized where the site plan and project design include measures which ensure the protection and performance of the functional properties identified in Section 16C.06.05 (Functional Properties). Adjustments from prohibited use limits are not allowed.

(2)    Process - Requests for an Adjustment permit shall be processed as a Type II permit, in accordance with YCC Title 16B (Project Permit Administration). Requests for adjustments of development standards shall be made in writing and shall specify the standard(s) for which an adjustment is sought and the reasons why the adjustment is sought.

(3)    Decision Criteria - Decisions on Adjustment permits shall be based on the general decision criteria found in section 16C.03.14 (Authorization Decisions - Basis for Action) together with the criteria below.

(a)    A particular standard may be reduced or modified as long as the Administrative Official determines that the adjustment and/or reduction:

(i)    is consistent with the purpose of this title;

(ii)    is consistent with the intent of the standard; and,

(iii)    will not result in degradation of the critical area.

(b)    The Administrative Official shall consider the following:

(i)    The proximity and relationship of the project to any critical area and its impact on the critical area;

(ii)    The functions and values that the critical area performs;

(iii)    The overall intensity of the proposed use;

(iv)    The presence of threatened, endangered, or sensitive species;

(v)    The site’s susceptibility to severe erosion;

(vi)    The use of a buffer averaging or buffer enhancement plan by the applicant which uses native vegetation or other measures which will enhance the functions and values of the Hydrologically Related Critical Area (HRCA).

(c)    When granting an adjustment to the provisions of this chapter, the Administrative Official may require alternative measures to be taken to protect the function and value of the HRCA. These alternative measures may include, but are not limited to, the following:

(i)    Restoration of impaired channels and banks to conditions which support natural stream flows, fish habitat, and other values;

(ii)    Restoration, enhancement, and preservation of soil characteristics and the quantity and variety of native vegetation;

(iii)    Provisions for erosion control and for the reduction and filtration of stormwater runoff to moderate the effects of the project on the stream channel and the available area of vegetation separating the project from the stream channel;

(iv)    Removal or alteration of existing manmade facilities associated with stream channels, or drainage ways which improve stream-flow characteristics or improve the movement or exchange of surface waters or floodwaters;

(v)    Replacement of lost wetlands or other stream corridor features on an acre-for-acre and equivalent value or at a higher acre and/or value basis;

(vi)    Conservation easements for key portions of stream corridor property and/or their inclusion within public or private conservation programs which provide for their long-term preservation and maintenance.

(vii)    Vegetative Buffer Averaging. Vegetative buffers may be modified by averaging buffer widths. Buffer averaging is preferred in the use of mitigation sequencing (16C.03.10 Mitigation Requirements), over a reduction in the buffer standards.

(d)    The following criteria must be met to reduce the vegetative buffers found in tables 6-1 and 6-2.

(i)    There is a hardship related to maintenance of the buffer width that results from parcel boundaries or existing on-site development.

(ii)    The buffer width shall be the maximum possible while meeting the minimum needs of the proposal.

(iii)    The development will not result in a reduction of habitat functions and values.

(iv)    The buffer reduction will not adversely affect salmonid habitat.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 4-2013 §2 (Exh. 2) (part), 2013: Ord. 13-2007 §1 (Exh. A)(16C.03.23), 2007).

16C.03.24 Reasonable Use Exception.

(1)    Classification Criteria. If the application of this title would deny all reasonable economic use of the subject property, the property owner may apply for a Reasonable Use Exception pursuant to this section.

(2)    Process. A Reasonable Use Exception shall be processed as a Type III review with a public hearing in accordance with YCC Chapter 16B.03 (Classification by Project Permit Type).

(3)    Decision Criteria. Decisions on the Reasonable Use request shall be based on the general decision criteria found in Section 16C.03.14 (Authorization Decisions – Basis for Action), together with the criteria below. The Reasonable Use request shall be accompanied by the evidence necessary to demonstrate conformance with the criteria below. Failure to satisfy any one of the criteria shall result in denial of the request. 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.

(a)    The application of this title would deny all reasonable use of the property; provided that the inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant;

(b)    No other reasonable use of the property has less impact on the critical area;

(c)    Any alteration is the minimum necessary to allow for reasonable use of the property.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.24), 2007).

16C.03.25 Minor Revisions to Approved Uses or Developments.

(1)    Classification Criteria. Minor revisions to a project that has been approved under a permit are allowed in certain circumstances.

(a)    Changes that are not substantive are not required to obtain a revision and may be allowed as activities to implement the original permit. Examples of such include minor changes in facility orientation or location, minor changes in structural design that do not change the height or increase ground floor area, and minor accessory structures (such as equipment covers or small sheds near the main structure, etc.).

(b)    Substantive changes are those that materially alter the project in a manner that relates to its conformance with the permit requirements. Such changes may be approved as a minor revision, if the Administrative Official determines that the proposed revision and all previous revisions are within the scope and intent of the original permit, and meet the criteria listed below. Changes not able to meet the criteria must obtain a new permit.

(i)    No additional over water construction will be involved, except that pier, dock, or float construction may be increased by five hundred square feet or ten percent from the provisions of the original permit, whichever is less;

(ii)    Lot coverage and height may be increased a maximum of ten percent from the provisions of the original permit; provided, that revisions involving new structures not shown on the original site plan shall require a new permit; and provided further, that any revisions authorized under this subsection shall not exceed height, lot coverage, setback or any other requirements of these regulations;

(iii)    Landscaping may be added to a project without necessitating an application for a new permit; provided, that the landscaping is consistent with conditions (if any) attached to the original permit and is consistent with this title for the area in which the project is located;

(iv)    The use authorized pursuant to the original permit is not changed;

(v)    No additional significant adverse environmental impact will be caused by the project revision.

(2)    Process. Minor revisions to existing permits shall be processed as a Type I review, as provided under YCC Title 16B (Project Permit Administration). Parties of record to the original permit shall be notified of the revision, though a comment period is not required.

(3)    Decision Criteria. Decisions on permit revisions shall be based on the general decision criteria found in Section 16C.03.14 (Authorization Decisions – Basis for Action).

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 13-2007 §1 (Exh. A)(16C.03.25), 2007).

16C.03.26 Non-Conforming Uses and Facilities.

Non-Conforming Uses and Facilities are classified as either conforming uses with non-conforming structures or areas, or as non-conforming uses, as described in subsection 1 below. Both types have different review processes and decision criteria, as provided below in subsections 2 and 3.

(1)    Classification Criteria – There may be situations that do not conform to the standards or regulations of this title. These situations are characterized as:

(a)    Non-conforming Uses. Uses of a structure or land that were lawfully established at the time of their initiation but are currently prohibited by this title are non-conforming uses, and may utilize structures or land areas that are also non-conforming. A non-conforming use that is discontinued for any reason for more than one year shall have a presumption of intent to abandon, shall not be re-established, and shall lose its non-conforming status, unless an Adjustment (Section 16C.03.23) is obtained to extend the length of time, based on documentation showing that an intent to abandon did not exist during the period of discontinuance. An Adjustment request may be submitted after the deadline has passed. In the case of destruction or damage where reconstruction costs exceed 50% of the assessed value, the structure shall not be rebuilt;

(b)    Conforming Uses with Non-conforming Structures or Areas are structures or areas for conforming uses that were lawfully established at the time of their initiation, but currently do not conform to the bulk, dimensional or other development standards of this title. Structures or areas in locations approved under a permit shall not be considered non-conforming. Non-conforming outdoor areas that have not been used or maintained for 5 consecutive years shall lose their non-conforming status and may not be reestablished;

(c)    Any non-conforming structure, area, or use may be maintained with ordinary care according to the provisions in Section 16C.01.05 (Applicability) and Section 16C.03.05 (Minor Activities Allowed without a Permit) and do not require additional review under these non-conforming provisions.

(2)    Process.

(a)    Alterations to conforming uses with nonconforming structures or areas shall be allowed under the following process requirements with the understanding that other permits or reviews may also be required under this title:

(i)    Those that do not increase the existing nonconformity and otherwise conform to all other provisions of this title are allowed without additional review under these nonconforming provisions;

(ii)    Those that increase the nonconformity, including establishing additional square footage within a buffer, are allowed without additional review under these nonconforming provisions; however, a Critical Areas Adjustment Permit must be obtained for the increased nonconformity;

(iii)    Reconstruction or repair of a structure damaged less than 75% of the assessed value shall be processed as provided in subsections (2)(a)(i) and (ii) above;

(iv)    A nonconforming structure which is moved any distance shall be processed as provided in subsections (2)(a)(i) and (ii) above;

(v)    Reconstruction or repair of structures destroyed or damaged 75% or more of the assessed value of the structure (not the whole property), including that resulting from neglect of maintenance or repair, shall be processed under these nonconforming provisions as a Type II review under YCC Title16B (Project Permit Administration).

(b)    Alterations to Nonconforming Uses.

(i)    Those involving expansion or alteration within an existing structure, but do not include alterations to outdoor areas, or expansions of the building’s height or square footage are allowed without additional review under these nonconforming provisions.

(ii)    Alterations to nonconforming uses, including their nonconforming structures or areas that do not qualify under subsection (2)(b)(i) above, shall be processed under these nonconforming provisions as a Type II review, as provided under YCC Title 16B (Project Permit Administration).

(3)    Decision Criteria.

(a)    Decisions on projects that require review under the nonconforming provisions, as identified under subsection (1) above, shall be based on the general decision criteria found in Section 16C.03.14 (Authorization Decisions – Basis for Action) together with the criteria below.

(b)    Applications for conforming uses with nonconforming structures or areas that are subject to subsection (2)(a)(v) above shall not be approved unless a finding is made that the project meets all of the following criteria:

(i)    Using the original location will not place the structure or people in danger of a hazard;

(ii)    The previous structure and any structural shore modification used to protect the structure did not increase hazards or damage to other properties;

(iii)    The previous structure and any shore modification used to protect the structure did not cause significant impacts to the functions and values of the critical area.

(c)    Decisions on Nonconforming Uses.

(i)    A nonconforming use may not be altered or expanded in any manner that would bring that use into greater nonconformity.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Ord. 6-2011 § 2 (Exh. A) (part), 2011; Ord. 13-2007 §1 (Exh. A)(16C.03.26), 2007).

16C.03.27 General Critical Areas Protective Measures.

The standards below apply to all permits and reviews performed under this title.

(1)    Financial Guarantees to Ensure Mitigation, Maintenance, and Monitoring.

(a)    When mitigation required pursuant to a development proposal is not completed prior to Yakima County’s final permit approval, such as final plat approval or final building inspection, the Administrative Official may require the applicant to post a financial guarantee to ensure that the work will be completed. If the development proposal is subject to compensatory mitigation for wetlands and streams, the applicant must post a financial guarantee to ensure mitigation is fully functional. Where financial guarantees are required by other state or federal agencies for specific mitigation features, additional financial guarantees for those features are not required under this provision.

(b)    The financial guarantee shall be in the amount of one hundred twenty-five percent (125%) of the estimated cost of the uncompleted actions and/or the estimated cost of restoring the functions and values of the critical area that are at risk.

(c)    The financial guarantee may be in the form of a surety bond, performance bond, assignment of savings account, an irrevocable letter of credit guaranteed by an acceptable financial institution, or other form acceptable to the Administrative Official, with terms and conditions acceptable to the Yakima County attorney.

(d)    The financial guarantee shall remain in effect until the Administrative Official determines, in writing, that the standards bonded for have been met. Financial guarantees for wetland or stream compensatory mitigation shall be held for a minimum of five years after completion of the work to ensure that the required mitigation has been fully implemented and demonstrated to function, and may be held for longer periods when necessary.

(e)    Public development proposals shall be relieved from having to comply with the bonding requirements of this section if public funds have previously been committed for mitigation, maintenance, monitoring, or restoration.

(f)    Any failure to satisfy critical area requirements established by law or condition, including but not limited to the failure to provide a monitoring report within thirty (30) days after it is due or comply with other provisions of an approved mitigation plan, shall constitute a default, and the Administrative Official may demand payment of any financial guarantees or require other action authorized by the Yakima County Code or any other law.

(g)    Any funds recovered pursuant to this section shall be used to complete the required mitigation. Such funds shall not be deposited in the County General Fund, but rather provided with a separate account. The County will use such funds to arrange for completion of the project or mitigation, and follow-up corrective actions.

(h)    Depletion, failure, or collection of financial guarantees shall not discharge the obligation of an applicant or violator to complete required mitigation, maintenance, monitoring, or restoration.

(2)    Declarative Covenants.

(a)    When a development is authorized by a critical areas permit or review, a declarative covenant shall, unless determined not to be necessary by the Administrative Official, be filed with the Yakima County Auditor to inform future owners of the existence of a critical areas decision that runs with the land and contains limits relating to critical areas on the property. The declarative covenant shall read substantially as follows:

This declarative covenant is intended to reduce the incidence of unintentional violation of the Critical Areas Ordinance. Please be informed about your property and the laws that apply to it.

This declarative covenant is provided by Yakima County to the current and future owners of the property described as [enter property description] to inform them that, at the time of this notice, [enter Critical Areas present] existed within or adjacent to the property which are protected and regulated by the Yakima County Critical Areas Ordinance (YCC Title 16C). Development has taken place on the property under permit or review number [enter permit file number], which includes requirements that run with the land. Current and future owners should obtain copies of the permit and also inform themselves about the critical areas that exist on the property.

This declarative covenant may be removed or modified if critical areas conditions change, or if the permit is no longer applicable. Contact the Yakima County Public Services for assistance in doing so.

(b)    The declarative covenant shall not be required for a development proposal by a public agency or public or private utility:

(i)    Within a recorded easement or right-of-way;

(ii)    Where the agency or utility has been adjudicated the right to an easement or right-of-way; or

(iii)    On the site of a permanent public facility.

(c)    The applicant shall submit proof that the declarative covenant has been filed for public record before the Administrative Official approves any development proposal for the property or, in the case of subdivisions, short subdivisions, planned unit developments, and binding site plans, at or before recording.

(3)    Subdivision Standards. The following standards apply to all permits or reviews under the Unified Land Development Code (YCC Title 19) that contain critical areas:

(a)    All subdivisions that contain critical areas shall be eligible for density bonuses or other development incentives, as provided in the Unified Land Development Code (YCC Title 19);

(b)    Critical areas shall be actively protected through the following:

(i)    Roads and utilities for the subdivision shall avoid critical areas and their buffers, as much as possible;

(ii)    When Geologically Hazardous Areas (excluding Erosion, Over Steepened Slopes of Intermediate Risk, Stream Undercutting, and Earthquake hazards), FEMA Floodway, Channel Migration Zone (CMZ), Streams, Wetlands and/or Vegetative Buffers fall within the boundary of a subdivision:

(A)    Said critical areas shall be protected by placing them entirely within a separate critical area tract, or by including them entirely within one of the developable parcels. Other options such as conservation easements and building envelopes may be deemed by the Administrative Official as meeting this provision when special circumstances obstruct the viability of this provision;

(B)    For those new lots that do contain said critical areas, useable building envelopes (5,000 square feet or more for residential uses) shall be provided on the plat that lie outside said critical areas;

(iii)    New lots partially within the floodplain shall provide a usable building envelope (5,000 square feet or more for residential uses) outside the floodplain;

(iv)    New lots entirely within the floodplain shall be at least one acre in area;

(v)    For new lots containing streams, wetlands, and/or vegetative buffers, outdoor use envelopes (such as lawns, gardens, play areas, gazebos, etc.) shall be provided on the plat that lie outside said critical areas;

(vi)    Degraded vegetative buffers shall be restored, or provided with protection measures that will allow them to recover;

(vii)    Floodplains and critical areas shall be depicted on preliminary subdivision plats and relevant information about them disclosed on the final plat.

(Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017: Res. 80-2016 (Exh. A) (part), 2016; Ord. 13-2007 §1 (Exh. A)(16C.03.27), 2007).