HomeMy WebLinkAbout2999 Critical Area AppealsOrdinance No. 2999
AN ORDINANCE OF THE CITY OF PORT TOWNSEND
AMENDING PORT TOWNSEND MUNICIPAL CODE
CHAPTER 19.05, AND SECTIONS .040, .050, AND .170
RELATING TO CRITICAL AREA APPEALS
RECITALS:
PTMC 19.05.040 (E) of the critical areas ordinance (CAO) states a director's
decision that a site is or is not within a critical area is appealable to the City
Council. Other permit appeal processes provide for open record appeals to the
hearing examiner.
2. The Council determines to amend the CAO to provide that any appeal should be
to the Hearing Examiner (consistent with other appeals of city permits), and (to
meet GMA requirement that there be no more than one open record appeal in
permit processes) be consolidated with an appeal of the permit on the
development proposal, with one exception. The exception would be to allow the
owner to appeal a determination that a development proposal is subject to the
CAO before having to undertake CAO permit requirements. If an appeal by the
owner is successful, and the property is not subject to CAO permit requirements,
then the owner avoids having to undertake needless and potentially costly CAO
permit requirements, including studies.
NOW, THEREFORE, the City Council of the City of Port Townsend ordains
as follows:
SECTION 1. Chapter 19.05 -Critical Areas, and Sections .040, and 050,
and .170, of the Port Townsend Municipal Code is hereby amended to read as follows
(text in strikeout is deleted, text in underline is added):
SEE ATTACHED EXHIBIT A
SECTION 2. Severability. If any provision of this ordinance or its application
to any person or circumstance is held invalid, the remainder of the ordinance, or the
application of the provision to other persons or circumstances, is not affected.
This ordinance shall take effect and be in force five days after the date of its
publication in the manner provided by law.
Ordinance 2999
Adopted by the City Council of the City of Port Townsend, Washington, at a
regular meeting thereof, held this second day of February 2009.
Attest:
Pamela Kolacy, MMC, City Clerk
1' ,
Michelle San oval, Mayor
Approved as to Form:
John P. Watts, City Attorney
Ordinance 2999
19.05.040 Critical area permit requirements -Exemptions, nonconforming
structures, application requirements, special reports, and advance
determinations.
Pursuant to this chapter, a critical area permit is required for any development
proposal whenever any portion of the site is within a critical area or required
buffer area or whenever the director makes a finding that a development
proposal is likely to significantly impact a critical area (regardless of its location).
A single-family residence which requires a critical area permit is exempt from
SEPA review.
A. Permit Required. Unless exempt from this chapter, no person, party, firm,
corporation or public agency shall undertake any development proposal, as
defined in PTMC 19.05.020, within a critical area or its buffer, unless the work is
in accordance with a valid permit from the city issued pursuant to the provisions
of this chapter.
B. Minor Critical Area Permits.
1. Minor Critical Area Permits. Notwithstanding any other provision of this
chapter, the DSD director may, subject to making the findings set forth below,
issue a minor critical area permit, with conditions or limitations as determined by
the director. Minor critical area permits may be granted only where the director
makes the following findings:
a. The proposed activity is minor in nature (such as utility crossings or
minimal new landscaping) or creates only temporary impacts, and will have no
off-site impacts; and
b. The proposed activity is to be conducted in an isolated, self-contained
area where there is no danger to private or public property and minimal impact to
the environment; or
c. The proposed activity is a critical areas restoration or enhancement
project not otherwise required for mitigation of project impacts; or
d. The proposed activity involves the relocation of electric facilities, lines,
equipment or appurtenances, not including substations, with an associated
voltage of 55,000 volts or less; or
e. The proposed activity involves the relocation or installation of natural
gas, cable communication, gas and telephone facilities, lines, pipes, mains,
equipment or appurtenances; provided, the utility involves a conduit of two
inches or less, a trench of two feet in width or less, and a construction corridor of
five feet or less.
Minor critical area permits shall be conditioned to ensure that impacts to the
critical area do not occur, and all activities conducted under the minor critical
area permit shall also be carried out in a manner consistent with all laws and
ordinances of the city of Port Townsend, including but not limited to Chapter 5,
Clearing, Grading and Erosion Control of the Engineering Design Standards
Manual which requires implementation of BMPs to control erosion and
sedimentation. Minor critical area permits shall be processed as Type I permits
and must be accompanied by the fee set forth in Chapter 20.09 PTMC. Minor
critical area permits are not subject to the notice requirement of PTMC
19.05.050(C).
Ordinance 2999 Attachment A
C. Exemptions. The following development shall be exempted from the
provisions of this chapter and the administrative rules; provided, however, that
for subsections (C)(2) through (14) of this section, the activities shall be
conducted in a manner consistent with best management practices (BMPs) and
the city's engineering design standards. Further, if the director determines that
the activity needs to be limited or conditioned to ensure that impacts do not
occur, a minor critical area permit pursuant to subsection (A) of this section shall
be required. Exemption from a critical area permit does not grant approval or
authorization for any work to be done in any manner which may violate any laws
or ordinances of the city of Port Townsend.
1. Actions necessary when the director determines there is an emergency
that threatens the public health, safety and welfare. Emergency repairs to water,
sewer, stormwater, electric, petroleum gas facilities, communications facilities
and telephone utility services will not require permits nor the approval of the
director.
2. Remodeling, reconstruction or replacement of structures and
improvements that do not meet the requirements of this chapter; provided, that
such activity does not increase the potential impact to a critical area or its buffer.
3. An application for a building permit for a lot within a development for
which a critical area study meeting the requirements of this chapter has been
prepared and accepted by the city; provided, that the previous study evaluated
the type and extent of development proposed to occur on the lot; and provided
further, that the proposed development adheres to the recommendations
contained within the study. Other studies, such as SEPA documents or studies,
may also be accepted by the director if found to meet the requirements for
critical areas studies.
4. Existing agricultural activities. If a site has remained idle for more than 10
years from the date of the adoption of the ordinance codified in this chapter
(Ordinance 2319, October 19, 1992), it is no longer considered agricultural.
5. Maintenance or reconstruction of existing opened roads and associated
storm drainage facilities which would be exempt under WAC 197-11-800(2)(a),
(b), and (c); provided, that reconstruction does not involve significant expansion
of facilities.
6. Maintenance or replacement of existing city utility lines; provided, that
replacement occurs within the same right-of-way or easement.
7. Ordinary maintenance and replacement of electric, natural gas, cable
communications and telephone lines and facilities. Substantial rebuilding of an
entire line segment shall be exempted where plans for the development are
submitted to the director along with a schedule for the work and it is verified that
the work consists only of replacement of structures already in place with similar
facilities.
8. Routine landscape maintenance of existing landscaped areas, including
selective pruning of trees and shrubs for safety and view protection, weeding,
and planting, provided natural drainage patterns and topography are not altered.
This does not include clearing or grading in order to develop or expand such
2 Ordinance 2999-Attachment A
activities in critical areas nor alteration of areas designated for retention as a
condition of permit approval. Use of pesticides and herbicides is discouraged.
9. Preliminary mapping, survey work and subsurface exploration that result
in insignificant disturbance of vegetation and soil.
10. Land clearing ordered by the director city--eeur~il for abatement of a
public nuisance.
11. Removal of noxious weeds as listed by the state in Chapter 16-750
WAC; provided, that no heavy equipment is employed.
12. Removal of invasive species as part of a restoration project designed to
improve the quality of a critical area and conducted in a manner accepted by
agencies with jurisdiction over the critical area.
13. Removal of dead or diseased trees and vegetation within 50 feet of a
permitted structure; provided, that the applicant receives permission from the
Department of Fish and Wildlife for removal of vegetation used for nesting and/or
roosting by a priority species.
14. Development and construction activities located outside a critical area,
and which is proposed to occur at a distance which is substantially greater than
the applicable buffers and setbacks required under the provisions of this chapter;
provided, that the director finds that no useful purpose would be served by the
requirement to obtain a critical areas permit in the case at hand.
D. Nonconforming Structures and Improvements. Structures and
improvements in existence on the date the ordinance codified in this chapter
becomes effective and that do not meet the setback or buffer requirements of
this chapter for any defined critical area shall be considered legal nonconforming
uses.
E. Application Requirements and Delineations.
1. All development proposals shall require the applicant to identify whether the
site involved contains any of the critical areas defined in this chapter. Where
either the applicant indicates a critical area is present, the area is mapped as a
critical area, or the director has a reasonable belief that a critical area is located
on the site, the below-listed requirements apply to the application. These
requirements shall not apply if the applicant conclusively demonstrates to the
satisfaction of the director that critical areas or buffers are not actually located
on-site. Whenever the director determines that a site is, or is not, within a critical
area or its buffer, that determination may be appealed ~~w!! c.,^~t ..t., a f.^al
decisier~--appPalabte '^ +"° ^~+~~ ^^ ~ under the provisions of PTMC
19.05.050(F). Notice of a final decision shall be given as provided in PTMC
19.05.050(E). A request for an advance determination regarding the presence or
absence of critical areas on any property may be made by a property owner or
person with consent of the property owner under the provisions of subsection
(E)(2) of this section. These requirements serve to identify and document critical
areas on a site. They include technical reports and surveys, temporary field
marking, and delineating critical areas on single lots and subdivisions. The
following is an outline of the steps required by the applicant in the critical area
permit process. These steps supplement and augment the development permit
3 Ordtnanee 2999-Attachment A
application process set forth in the Land Development Administrative
Procedures, Chapter 20.01 PTMC.
a. Staff Site Visit. If there is reason to believe a development project may
involve a critical area, a member of the city DSD staff will visit the site to
establish the probable existence or absence of a critical area.
b. Preapplication Consultation. Any person intending to apply for a critical
areas permit is required to meet with the DSD staff during the earliest possible
stages of project planning in order to discuss impact avoidance, minimization or
compensation before large commitments have been made to a particular project
design.
c. Prepare a site inventory and survey with five-foot contours, showing all
existing natural and built features. The site survey is to be used as a base for the
site construction plan. The survey requirement may be waived or modified by the
director due to a determination that site factors do not require the specificity of a
survey.
d. Provide a site construction plan delineating critical areas and
significant vegetation (e.g., trees with asix-inch diameter at breast height).
Unless the director waives one or more of the following information
requirements, a site construction plan shall include:
i. On four lots or less, a plan description and maps at a scale no
smaller than one inch equals 20 feet. On more than four lots, plan description
and maps shall be no smaller than one inch equals 50 feet. In each case the
plan description maps shall show the entire parcel of land owned by the
applicant and the certified survey boundary of the critical area on the parcel. The
certified survey boundary of wetlands will require delineation before the site
survey;
ii. A description of the vegetative cover of the critical area and
adjacent area including significant species and native vegetation;
iii. A site plan for the proposed development showing the location,
width, depth and length of all existing and proposed disturbed areas, structures,
roads, stormwater treatment and installations for the whole site, including those
proposed to be located within the critical area and its buffer; utility locations and
clearing and trenching locations should be identified along with the location of
any existing utilities to be connected to the site;
iv. The exact location and specifications for all development activities
including delineation of all disturbed areas, the amounts of filling and grading
and methods of construction;
v. Elevations of the site and adjacent lots within the critical area and
its buffer at contour intervals of five feet;
vi. Top view and typical cross-section views of the critical area and its
buffer to the same scale as required in subsection (E)(1)(d)(i) of this section;
vii. Specific means proposed to mitigate any potential adverse
environmental impact of the applicant's proposal.
e. If a critical area is confirmed to exist on the site, an applicant may be
required to provide a critical area special report prepared by a qualified critical
area consultant. Special reports shall identify and characterize any critical area
4 Ordinance 2999 AttaclzmentA
as a part of the larger development proposal site, assess any hazards to the
proposed development, assess impacts of the development proposal on any
critical areas on, or adjacent to, or adversely affected by proposed activities on
the development proposal site, and assess the impacts of any alteration
proposed for an critical area.
i. Contents of special reports may differ, depending on the type of
critical areas a specific parcel may contain.
ii. For all such areas, reports shall be determined to be complete by
the director, and (s)he may request more information as needed in order to
protect the public and environment, and to ensure that the development is
compatible with the land.
iii. The specific requirements of such reports shall be identified at the
preapplication consultation and may be required to be supplemented at the
discretion of the director.
f. Waivers of Special Reports. The director may waive the requirement
for a special report if there is substantial evidence showing that all the following
are present:
i. There will be no alteration of the critical areas or required buffer; and
ii. The proposed development will not impact the critical area in a
manner contrary to the goals, purposes, objectives and requirements of this
chapter; and
iii. The minimum standards required by this chapter are met.
g. Exceptions to Special Reports. No special report is required for the
following development proposals:
i. Any development or remodel of a structure or improvements when
no alteration of the critical area will occur as a result of the remodel activity;
except, any associated construction for additional parking or impervious surface
greater than 250 square feet in the aggregate will require a special report.
ii. A residential building permit for a lot which was subject to a
previous special report; provided, that the previous special report was completed
within three years of the current proposal, and adequately identified the impacts
associated with the current development proposal. A new report may be waived
if the existing report appears to adequately represent and address current site
conditions. The director shall make such field investigations as are necessary to
determine if the criteria for an exception are satisfied.
h. Field marking is required for all development proposals.
i. Prior to the preconstruction meeting, the applicant shall mark the
following on the site to reflect the proposed site construction plan: the location of
the building footprint, critical area(s) boundaries, the outer extent of required
critical area buffers, areas to remain undisturbed, and trees and vegetation to be
removed;
ii. Obtain the director's approval on the field markings before
beginning any permitted activities. Field markings are intended to prevent
disturbance of critical areas and buffers and may include such items as
temporary fences. Detailed requirements may be specified in the procedures
manual prepared by the DSD;
5 Ordinance 2999-Attachmei~t.4
iii. Maintain the field markings for critical area(s) and areas to remain
undisturbed throughout the duration of the permit.
i. A preconstruction meeting at the development site is required for all
projects.
i. The meeting is to be attended by the applicant (or applicant's agent)
and city staff, to review specific project details and methods of construction.
Subcontractors such as those conducting grading or excavation work may also
be required to attend the meeting. Applicants are encouraged, but not required,
to allow attendance by interested citizens.
ii. No construction activity, including land clearing or grading, shall be
permitted until the information required by the appropriate critical area section is
reviewed and approved by the director.
j. For critical areas, development proposals which contain only aquifer
recharge areas, frequently flooded areas or seismic hazard areas, the director
may waive compliance with the application requirements and delineations
requirements of this section and compliance with the performance standards for
development contained in PTMC 19.05.060. The director must be satisfied that
the performance standards provided for in the individual critical area regulations
for a specific environmental category are met and no purpose established under
this chapter would be furthered by requiring compliance with application
requirements or the performance standards for development.
2. Advance Determination. A property owner or person with consent of the
property owners may request an advance determination regarding the presence
or absence of critical areas on a particular parcel outside of the normal
permitting process. A request may be made upon payment to the development
services department of the initial filing fee. The advance determination shall be
based upon existing conditions at a particular site and shall be binding only as
long as conditions on the property do not change to include features which meet
the definition of critical areas. Should the director be unable to make a
conclusive determination from a site visit and review of available information, the
applicant may be requested to provide, at the applicant's expense, additional
information, reports or studies similar to those identified in subsection (E)(1) of
this section to allow a conclusive determination to be made.
The process for determining the presence or absence of critical areas on a
particular parcel outside of the normal permitting process shall be made in
accordance with the Type II process in Chapter 20.01 PTMC (director decision
and appeal to hearing examiner).
(Ord. 2929 Exh. A § 4, 2006; Ord. 2899 § 1, 2005; Ord. 2892 § 1, 2005;
Ord. 2688 § 3, 1999; Ord. 2535 § 3, 1996; Ord. 2319 § 1, 1992).
19.05.050 Critical area permit administration -Permit processing, public
notice, reasonable use exceptions, appeals, fees, and notice to title.
(portion)
6 Or~danance 2999-AttachmentA
E. Notice of Final Decisions.
Notice of a final decision on any critical area development permit or reasonable
use exception shall be mailed by the director to the applicant and to any
individual who has filed a written comment on the application with a return
address identified on the comment. Final decisions shall also include final
determinations of the director regarding the presence or absence of critical
areas. Notice of final decisions regarding an advance determination, or within the
context of a permit application, of a decision regarding the presence or absence
of critical areas shall be provided by mail to the permit applicant and by mail to
any person filing an individually written comment or requesting notification of
such decisions from the director on a specific application.
F. Appeals and Stay During Pendency of Appeals.
1. Any person entitled to receive notice under Chapter 20.01 PTMC of a
final decision of the director on a critical area development permit or reasonable
use exception, or on an advance determination that a site is, or is not, within a
critical area, may appeal such final decision by following the appeal procedure
for Type II permits outlined in Chapter 20.01 PTMC. Any appeal of a final
decision involving determination of the presence or absence of critical areas
must be filed within 14 calendar days after the notice of the decision, or within 21
calendar days if a SEPA determination of nonsignificance is issued concurrently
as part of the permit decision, as further set forth in PTMC 20.01.210.
An appeal that a site is or is not within a critical area or its buffer under
PTMC 19A4.040(E)(1>, or of an advance determination under PTMC
19.04.040(E)(2) shall be deemed an appeal of the development permit and
consolidated with an appeal of the development permit: except that a property
owner or person with consent of the groperty owner may. in order to determine
the applicability of this chapter to the development (and to-avoid having to obtain
a critical area development permit if the proiect is not subiect to this chapter)
have tfie appeal determined prior to issuance or denial of a permit on the
development proposal.
An appeal by the property owner, or person with consent of the property
owner, prior to issuance or denial of a permit on the development proposal shall
be noticed in the same manner as the underlying project. and as provided In
PTMC 19.04.050(E).
2. Construction under any permit issued by the city shall be stayed until the
expiration of any appeal period or the final resolution by the city of any appeal
which has been filed under this chapter.
7 Ordinance 2999-Attachment A
19.05.190 Limitation of actions.
An final decision „f-thy. c':r°c±or ar t".° c:*.~~ ^^ ~^^' under this chapter shall be
Y , -..~......
final and conclusive unless timely appealed by following the appeal procedures
of Ch. 20.41 PTMC. ~*-~,~";,=~'~a~., cf t"a du±c t"° d°c;..,..,, ,c ?cc.,a~' u-pa#~e#
-o#
. °..:"~!!°^^~^^'"° d°c:°:^^. (Ord. 2899 § 1, 2005; Ord. 2319 § 1, 1992).
~...,
Ordinance 2999-Attachment A