HomeMy WebLinkAbout3805Ordinance No. 3805
(Amending or Repealing Ordinances)
CFN=961 — Capital Facilities Plan
Passed — 8/15/06
Critical Areas Ordinance - Revision
Amends Ords. 3439;3600;3643;3746;3770
ORDINANCE NO. -�
AN ORDINANCE of the city council of the city of
Kent, Washington, amending chapter 11.06 of the Kent
City Code, entitled "Critical Areas," to provide for
wetland categorization and wetland buffer widths as
required pursuant to a decision by the Central Puget
Sound Growth Management Hearings Board, making
other related amendments, and amending Kent City
Code section 15.08.400 for consistency with these
critical areas amendments.
RECITALS
A. On April 19, 2005, the Kent City Council passed its Ordinance No.
3746, which enacted new city of Kent critical areas regulations, pursuant to the
state Growth Management Act (GMA). The council passed these regulations only
after an extended period of scientific study, regulatory review, and community
participation. The recitals embodied in Ordinance No. 3746 describe this process
in detail and are incorporated into this ordinance by this reference.
B. Subsequent to enactment of Ordinance No. 3746, the state of
Washington, through the Department of Ecology (DOE) and the Department of
Community, Trade, and Economic Development (CTED), filed an action before
the Central Puget Sound Growth Management Hearings Board (GMHB) appealing
certain aspects of the city's ordinance. The state's appeal centered on the city
council's application of best available science requirements under the GMA with
respect to the ordinance's 3 -tiered wetlands classification system, wetland buffer
widths, and also the ordinance's treatment of certain artificially created wetlands.
The state argued that the city should have used a 4 -tiered wetlands classification
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system with larger wetland buffers and with a stronger focus on wetland and
buffer habitat impacts.
C. The city opposed this appeal and argued that its ordinance was
consistent with the GMA and adequately incorporated BAS, particularly when
balancing other GMA goals.
D. One year after passage of the city's ordinance, the GMHB issued a
decision and order on April 19, 2006, finding in favor of the state and specifically
finding that the appealed portions of the city's critical areas ordinance did not
comply with the GMA. The GMHB decided that the city should not have used the
3 -tiered classification system, should have incorporated larger buffer widths, and
should amend its treatment of artificially created wetlands to comply with GMA
requirements.
E. The city appealed the GMHB decision to the King County Superior
Court. Subsequently, all parties sought direct review before the state Court of
Appeals, Division I. That court granted direct review on July 28, 2006. The
appeal of the GMHB decision is currently pending before the Court of Appeals,
but a final decision is not expected for many months, and if appealed again by
either party from the Court of Appeals to the Washington State Supreme Court,
may not be finally resolved for a period of years. As a result, the controversy,
and the firmly held beliefs of all parties, remain active and under dispute.
F. During the pending period of this appeal, however, certain state
agencies have relied on the GMHB's finding that the city does not comply with
the GMA. In particular, the Washington State Public Works Board sent a letter to
the city on May 24, 2006, stating that, because of the GMHB's finding of non-
compliance, the city was not eligible to apply for grants from the Public Works
Trust Fund. The city had, at that time, a pending application for a $7 million
dollar low interest loan, and city staff, based on previous history of applications
and awards through this agency, had a firm belief that the Public Works Board
would likely award most, if not all, the requested amount. Moreover, city staff
intended to use this award as seed money to obtain another $10 million from
other state grant and loan funds through agencies like the Freight Mobility
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Strategic Action Board (FMSIB) and the Transportation Improvement Board
(TI B).1
G. Other city grant and loan resources were similarly threatened. The
InterAgency Committee (IAC) regularly authorized grants to the city's parks and
recreation system. The IAC awards Its grants on a point score formula based on
the answers provided by applicant jurisdictions. These grants and the attendant
scores are highly competitive, and score differences of as little as a few
hundredths of a point can make a substantial difference In an applicant's final
standing in the grant award queue. One of the questions asked in these
standardized application forms is whether or not the applicant agency is in
compliance with the GMA. An IAC determination that the city did not comply
with the GMA based on the GMHB's decision and order would also severely affect
the city's grant eligibility.
H. Even though the city council maintains that its Ordinance No. 3946
did In fact comply with the GMA, and even though the city Intends to vigorously
appeal the GMHB decision, the city council, in an effort to maintain its eligibility
with these agencies and in an effort to demonstrate its willingness to comply with
the GMHB, with the direction of DOE and CTED, and with the Office of the
Governor, has determined to amend its critical areas ordinance to comply with
the GMHB decision during the pendancy of the city's appeal of the decision.
I. As a result, the city council directed staff, on July 5, 2006, to
consult with DOE and CTED, and to develop amendments to the city's critical
areas regulations that would comply with the GMA. City staff has entered into
these consultations with staff from the state agencies, has obtained their
approval of the amendments contained in this ordinance, and by this ordinance,
amends the city's critical areas regulations so as to comply with the GMHB
decision and order and with the GMA.
J. Having received staff approval of the amendments contained in
this ordinance, the city council, after providing appropriate public notice, and
1 Because of a technical error in the applicable Washington Administrative Code section, the board
subsequently reversed this decision and allowed the city to apply However, were it not for this
technicality, the city could not have applied for Public Works Trust Fund loans
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after completing appropriate State Environmental Policy Act (SEPA) review, has
determined to enact this ordinance, which is intended to obtain compliance with
the GMA during the period that the Ordinance 3946 appeal is under review.
K. The city conducted and completed environmental review under the
State Environmental Policy Act (SEPA), issuing an Addendum to its
Comprehensive Plan Environmental Impact Statement (EIS) on August 7, 2006.
Additionally, on July 6, 2006, the city provided notification under RCW
36 70A.106 to the state of Washington on the city's proposed amendment to the
critical areas ordinance, and sought expedited review under RCW
36.70A.106(3)(b). Expedited review was granted by the Department of
Community Trade and Economic Development on July 24, 2006.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Amendment. Chapter 11.06 of the Kent City Code, entitled
"Critical Areas," is amended to read as follows:
Chapter 11.06
CRITICAL AREAS
Article I. Procedural & Administrative Provisions
Sec. 11.06.040. Exemptions.
A. The following activities performed on sites containing critical areas as
defined by this chapter shall be exempt from the provisions of these regulations:
1. Conservation or preservation of soil, water, vegetation, fish, and
other wildlife that does not entail changing the structure or functions of the
critical area.
2. Existing and ongoing agricultural activities, as defined in this
chapter.
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3. Activities involving artificially created wetlands or streams
intentionally created from non -wetland sites, including but not limited to, grass -
lined swales, irrigation and drainage ditches, retention or detention facilities, and
landscape features, except wetlands or streams created as mitigation or that
provide critical habitat for anadromous fish.
4. Operation, maintenance, repair, and reconstruction of existing
structures, roads, trails, streets, utilities, and associated structures, dikes,
levees, or drainage systems; provided, that reconstruction of any facilities or
structures is not "substantial reconstruction," may not further encroach on a
critical area or its buffer, and shall incorporate best management practices.
5. Normal maintenance, repair, and reconstruction of residential or
commercial structures, facilities, and landscaping; provided, that reconstruction
of any structures may not increase the previous footprint, and further provided
that the provisions of this chapter are followed.
6. The addition of floor area within an existing building which does
not increase the building footprint.
7. Site investigative work and studies that are prerequisite to
preparation of an application for development including soils tests, water quality
studies, wildlife studies, and similar tests and investigations; provided, that any
disturbance of the critical area shall be the minimum necessary to carry out the
work or studies.
8. Educational activities, scientific research, and outdoor recreational
activities, including but not limited to interpretive field trips, birdwatchmg,
boating, swimming, fishing, and hiking, that will not have a significant effect on
the critical area.
9. The harvesting of wild crops and seeds to propagate native plants
in a manner that is not injurious to natural reproduction of such crops, and
provided the harvesting does not require tilling of soil, planting of crops, or
alteration of the critical area by changing existing topography, water conditions,
or water sources.
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10. Emergency activities necessary to prevent an immediate threat to
public health, safety, property, or the environment which requires immediate
action within a time too short to allow full compliance with this chapter as
determined by the department.
11. Development of lots vested and/or legally created through a
subdivision, short subdivision, or other legal means and approved prior to the
effective date of the ordinance codified in this chapter.
123. Removal of invasive plants and planting of native vegetation in
wetland and stream buffers for the purpose of enhancing habitat values of these
areas pursuant to an approved mitigation plan.
134. Stabilization of sites where erosion or landsliding threatens public
or private structures, utilities, roadways, driveways, or publicly maintained trails
or where erosion or landsliding threatens any lake, stream, wetland, or shoreline.
Stabilization work shall be performed in a manner which causes the least possible
disturbance to the slope and its vegetative cover. This activity shall be
performed in accordance with approved site stabilization plans.
143. Minor activities not mentioned above and determined in advance
and in writing by the director to have minimal impacts to a critical area.
B. Notwithstanding the exemptions provided by this subsection, any
otherwise exempt activities occurring in or near a critical area or its buffer shall
comply with the intent of these standards and shall consider onsite alternatives
that avoid or minimize significant adverse impacts. Emergency activities shall
mitigate for any impacts caused to critical areas upon abatement of the
emergency.
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C. With the exception of emergency actions, and existing and ongoing
agricultural activities, no property owner or other entity shall undertake exempt
activities prior to providing fourteen (14) days' notice to the director and
receiving confirmation in writing that the proposed activity is exempt. In case of
any question as to whether a particular activity is exempt from the provisions of
this section, the director's determination shall prevail and shall be confirmed in
writing.
D. Legally established uses, developments, or structures that are
nonconforming solely due to inconsistencies with the provisions of this chapter
shall not be considered nonconforming pursuant to KCC 15.08.100.
Reconstruction or additions to existing structures which intrude into critical areas
or their buffers shall not increase the amount of such intrusion except as
provided by KCC 11.06.100(A). Once a non -conforming use is discontinued for a
period of one-year, that use cannot be re-established.
E. The exemptions established by this section shall apply only to activities
that are otherwise permitted by federal, state, and/or local laws.
Article H. Definitions
Sec. 11.06.193. Corridor. Corridor means a continuous strip of
undisturbed vegetation connecting two (2) critical areas, protected in perpetuity
from development via a restrictive covenant in the form of a Conservation
Easement, Sensitive Area Easement, or Sensitive Area Tract.
Sec. 11.06.387. Natural heritage wetland. Natural hentace wetland
means a wetland identified by the Washington State Department of Natural
Resources Natural Heritage Program as either high quailty undisturbed wetlands
or wetlands that support state threatened, endangered, or sensitive plant
species. Natural heritage wetland inventories are available from the Washington
State Department of Natural Resources.
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Sec. 11.06.530. Wetland. Wetland or wetlands means areas that are
inundated or saturated by surface water or groundwater at a frequency and
duration sufficient to support and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas. Wetlands
do not include those artificial wetlands intentionally created from nonwetland
sites, including but not limited to, irrigation and drainage ditches, grass -lined
swales, canals, detention facilities, wastewater treatment facilities, farm ponds,
and landscape amenities, or those wetlands created after July 1, 1990, that were
unintentionally created as a result of a road, street, or highway. However,
wetlands include those artificial wetlands intentionally created to mitigate
conversion of wetlands. For identifying and delineating wetlands, the Washington
State Wetland Identification and Delineation Manual (Ecology, 1997) shall be
used. Wetlands determined prior converted cropland (PCC) by federal agencies
may still be considered wetlands by the city of Kent. If these wetlands meet
requirements of the Washington State Department of Ecology Manual, the
wetlands shall be regulated, and the critical area shall be protected like any other
wetland pursuant to this code.
Sec. 11.06.533. Wetland category. Wetland category means the
numeric designation I through IV) assigned to a wetland to provide an indication
of that wetland's overall function and value. Wetland categories rank the city's
wetlands from highest Category I) to lowest (Category IVj.
Article III. General Mitigation and Monitoring
Sec. 11.06.550. Mitigation standards.
A. Mitigation sequencing shall be avoidance, minimization, mitigation. Any
proposal to impact a critical area shall demonstrate that it is unavoidable or will
provide a greater function and value to the critical area.
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B. Adverse impacts to critical area functions and values shall be mitigated.
Mitigation actions shall be implemented in the preferred sequence identified in
this chapter. Proposals which include less preferred and/or compensatory
mitigation shall demonstrate that:
1. All feasible and reasonable measures have been taken to reduce
impacts and losses to the critical area, or to avoid impacts where avoidance is
required by these regulations; provided, that avoidance is not required where an
applicant proposes to fill and replace a hydrologically isolated emergent Category
III or IV+ass-3 wetland less than five thousand (5,000) square feet in size
pursuant to KCC 11.06.610(C). For the purposes of this section a hydrologically
isolated wetland shall be determined by the U.S. Army Corps of Engineers.
2. The restored, created, or enhanced critical area or buffer will at a
minimum be as viable and enduring as the critical area or buffer area it replaces.
3. In the case of wetlands and streams, no overall net loss will occur
in wetland or stream functions and values. The mitigation shall be functionally
equivalent to the altered wetland or stream in terms of hydrological, biological,
physical, and chemical functions.
Article IV. Wetlands
Sec. 11.06.580. Wetlands rating system. The fellewing rating system
FATS"_ _
State Department of NatuFal PkeSE)Wces threugh its natuFal heritage data eF by
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- - -
State Department of NatuFal PkeSE)Wces threugh its natuFal heritage data eF by
9 Critical Areas Ordinance -
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l+i ��� u•..:� �4:�••i.iii:Ii��:��i.n:suis.ws.�:u�:�.ar���.�:�.��:ws���.•�sv��riwss ��-•...
eFiteria, aFe !"-teand wh eh et t....e Fy t etia . si
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square feet, that have a ft)Fested wetlaiqd class.
I
A. Wetlands are classified as Category I, II, III, or IV based on the
Washington State Wetland Rating System for Western Washington Washington
State Department of Ecology Publication 04-06-025. published August 2004.
B. Wetland rating categories shall not recognize illegal modifications that
have been made to a wetland or its buffers.
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Sec. 11.06.590. Determination of wetland boundary by
delineation.
A. Delineations shall be required when a development is proposed on
property containing wetlands identified on the city of Kent wetland inventory or
when any other credible evidence may suggest that wetlands could be present.
Delineations shall also be performed when the evidence suggests that buffers
from wetlands on adjacent properties may impact the proposed development.
B. The exact location of the wetland boundary shall be determined through
the performance of a field investigation applying the wetland definition of this
chapter. An applicant may request the department to perform the delineation,
provided the applicant pays the department for all necessary expenses
associated with performing the delineation. The department shall consult with
qualified professional scientists and technical experts or other experts as needed
to perform the delineation. Where the applicant has provided a delineation of the
wetland boundary, the department shall verify the accuracy of, and may render
adjustments to, the boundary delineation. The decision of the department may
only be appealed pursuant to procedures outlined in this chapter.
C. The delineation shall contain the following information:
1. A written assessment and accompanying maps of wetlands and
buffers within two hundred seventy-five (275) -feet of the
project area, including the following information at a minimum: all known
wetland inventory maps (including a copy of the city of Kent wetland inventory
map); wetland delineations and required buffers; existing wetland acreage;
wetland category; vegetative, faunal, and hydrologic characteristics; soil and
substrate conditions; and topographic data.
2. A discussion of measures, including avoidance, minimization, and
mitigation proposed to preserve existing wetlands and restore any wetlands that
were degraded prior to the current proposed land use activity.
3. A habitat and native vegetation conservation strategy that
addresses methods to protect and enhance onsite habitat and wetland functions.
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D. A wetland delineation which has been confirmed by the department
pursuant to SEPA review for a proposed project shall be binding upon the city
and the applicant. If a wetland delineation report has not gone through SEPA
review as a part of the application process, and the city has approved a wetland
delineation report for another purpose, the wetland delineation report shall be
valid for a period of two (2) years from the date of the approved report.
Sec. 11.06.600. Wetland buffers and building setback lines.
A. Standard buffer widths.
1. Standard buffers shall be determined by the wetland category
pursuant to KCC 11.06.580 and the Habitat Score from the Washington State
Wetland Rating System for Western Washington, Washington State Department
of Ecology Publication 04-06-025, published August 2004. Standard buffers shall
be applied to wetlands unless otherwise reduced pursuant to subsection (B) of
this section, increased pursuant to subsection (CC) of this section, or otherwise
adjusted under other provisions of ch. 11.06 KCC. Standard buffers (in feet
and reduced buffers permitted pursuant to subsection (B) of this section, are
provided in the following table:
Habitat
Score
Points
<20
<20 w
11.06.600(6)
20-28
20-28 w/
11.06.600(6)
29+
29+ w
11.06.600(6)
Category I
125
100
150
125
225
200
Category II
100
75
125
110
200
175
Category III
75
60
125
110
n a
n a
Category IV
50
40
n a
n a
n a
n a
2. Wetland buffer zones shall be required for all regulated activities
adjacent to wetlands. Any wetland created, restored, or enhanced as
compensation for approved wetland alterations shall also include the standard
buffer required for the category of the created, restored, or enhanced wetland.
All buffers shall be measured from the wetland boundary as surveyed in the field.
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The width of the wetland buffer zone shall be determined according to the rating
assigned to the wetland.
y nZ40feet
3 2 -5 --feet
3. Bogs shall have a standard buffer of two hundred fifteen (215)
feet. However, a twenty-five (25) foot reduction is allowed with implementation
of subsection (B) of this section.
4. Natural heritage wetlands shall have a standard buffer of two
hundred fifteen (215) feet. However, a twenty-five (25) foot reduction is allowed
with implementation of subsection U of this section.
B. Reduced buffer widths. Standard buffer widths as noted in subsection (Al
of this section may be reduced, as provided in that subsection's table, if the
applicant implements all applicable mitigation measures identified in the following
table:
Examples o
Disturbance
Activities and Uses that
Cause Disturbances
Examples of Measures to
Minimize Im acts
Li hts
• Parking Lots
• Warehouses
• Manufacturing
. Residential
• Direct lights away from
wetland
Noise
• Manufacturing
• Residential
. Locate activity that
generates noise away from
wetland
Toxic runoff*
. Parking lots
• Roads
. Manufacturina
Residential Areas
A lication of Ag Pesticides
. Route all new, untreated
runoff away from wetland
while ensuring wetland is not
dewatered
. Establish covenants limiting
Landscaping
use of pesticides within 150 -
feet of wetlands
• Apply integrated pest
mans ement
Change in water
. Impermeable surfaces
. Lawns
. Tilling
. Infiltrate or treat detain
regime
and disperse into buffer new
runoff from impervious
surfaces and new lawns
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Pets and human
• Residential areas
• Use l2rivacy fencing; plant
disturbance
dense native vegetation to
delineate buffer edge and
discourage disturbance,
place wetland and
buffer/corridor in a separate
tract or easement
Dust
• Tilled fields
• Use best management
practices to control dust
• These examples are not necessarily adequate
for minimizing toxic runoff if
threatened or endangered species are present.
• This is not a complete list of measures. Other similar measures may be
proposed by the applicant for approval by
the director or his/her designee.
• Applicant shall discuss all a licable mitigation
measures in the mitigation
plan, including benefits to the wetlands for those used and rationale for not
including specific measures.
C$. Increased buffer widths.
1. If a Category I or II wetland, with a habitat score greater than
twenty (20) points is located within three hundred (300) feet of a Priority Habitat
Area as defined by the Washington State Department of Fish and Wildlife, or as
mapped by the city of Kent as a priority habitat area in accordance with the
Washington State Department of Fish and Wildlife definitions, the buffer
established in subsection (A) of this section shall be increased by fifty (50) feet
unless:
a. The applicant provides a relatively undisturbed vegetated
corridor at least one hundred (100) feet wide between the wetland and all
Priority Habitat Areas located within three hundred (300) feet of the wetland.
The corridor shall be protected for the entire distance between the wetland and
the Priority Habitat Area pursuant to KCC 11.06.640: and
b. The applicant incorporates all applicable mitigation design
criteria pursuant to KCC 11.06.600(B).
12. The director may require increased buffer widths on a case-by-case
basis when a larger buffer is necessary to protect species listed by the federal
government or the state as endangered, threatened, sensitive, or documented
priority species or habitats. Such increased buffers shall be based on
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recommendations by a qualified professional wetland biologist and, if applicable,
best management practices for protection of the species adopted by an agency
with jurisdiction.
3-2. Applicants for development permits may volunteer to provide
increased buffers pursuant to the following procedures:
a. If an applicant provides a buffer which is permanently
protected pursuant to the requirements of this chapter and is at least twenty-five
(25) feet wider than the buffers required pursuant to subsection (A) of this
section, the applicant may apply for a ten (10) percent increase in the number of
residential units permitted per acre pursuant to the requirements of KCC
15.08.400, planned unit development, PUD.
b. If an applicant provides a buffer which is permanently
protected pursuant to the requirements of this chapter and is at least fifty (50)
feet wider than the buffers required pursuant to subsection (A) of this section,
the applicant may apply for a twenty (20) percent increase in the number of
residential units permitted per acre pursuant to the requirements of KCC
15.08.400, planned unit development, PUD.
DG. Buffer averaging.
1. Wetland buffer width averaging shall be allowed where the
applicant demonstrates the following:
a. The ecological functions and values of the buffer after
averaging is equivalent to or greater than the functions and values before
averaging as determined by a qualified consultant and as approved by the city.
Properly functioning buffers shall not be reduced through buffer averaging except
in exceptional circumstances, such as a need to gain access to property or other
similar circumstances, to be approved by the director.
and values.
b. Averaging will not adversely impact the wetland functions
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C. The total area contained within the wetland buffer after
averaging shall be no less than the total area contained within the standard
buffer prior to averaging.
d. At no point shall the buffer width be reduced by more than
fifty (50) percent of the standard buffer or be less than twenty-five (25) feet.
e. The additional buffer shall be contiguous with the standard
buffer and located in a manner to provide buffer functions to the wetland.
f. If the buffers are degraded pursuant to KCC 11.06.227,
they shall be restored pursuant to an approved restoration/enhancement plan.
g. If restoration or enhancement of the buffer is required in
order to establish a suitable growth of native plants, maintenance, and
monitoring of the buffer for a period of at least three (3) years shall be provided
pursuant to an approved monitoring plan as required by KCC 11.06.570.
E$. Buffer restoration required. If the buffers, including both standard buffers
and buffers which are averaged, are degraded, they shall be restored during
development pursuant to an approved restoration plan. If the plan includes
establishing a suitable growth of native plants, maintenance and monitoring of
the buffer for a period of at least three (3) years shall be provided pursuant to an
approved monitoring plan as required by KCC 11.06.570. Where it can be
demonstrated that there will be no impacts from the proposed development to
the wetland or wetland buffer, the director shall have the authority to waive or
modify this requirement.
FE. Required report for buffer averaging and/or reduction. A request to buffer
average pursuant to subsection (6D) shall be supported by a buffer
enhancement/restoration plan prepared by a qualified professional. The plan
shall assess the habitat, water quality, storm water detention, groundwater
recharge, shoreline protection, and erosion protection functions of the buffer;
assess the effects of the proposed decreased or modified buffer on those
functions; and address the applicable criteria listed in this section. A buffer
restoration and/or enhancement plan shall also provide the following: (1) a map
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locating the specific area of restoration and/or enhancement; (2) a planting plan
that uses native plant species indigenous to this region including groundcover,
shrubs, and trees; and (3) provisions for monitoring and maintenance
throughout the monitoring period.
GF. Buffer condition. Except as otherwise allowed by this section, wetland
buffers shall be retained in their natural condition. Where buffer disturbance has
occurred during construction, re -vegetation with native vegetation shall be
required pursuant to an approved restoration/enhancement plan consistent with
this code.
HG. Buffer utilization for landscape requirements. Enhanced wetland buffers
may be used to satisfy landscaping requirements in Ch. 15.07 KCC where all of
the following criteria are satisfied:
1. The buffer, as enhanced by applicant, will provide equivalent or
greater protection of wetland functions.
2. The enhanced buffer will meet the landscaping requirements as
outlined in Ch. 15.07 KCC. The proposed landscape vegetation satisfies wetland
buffer vegetation requirements.
3. The enhanced buffer is of the full landscape width required by Ch.
15.07 KCC.
I#. Permitted uses in a wetland buffer. Activities shall not be allowed in a
buffer except for the following and then only when properly mitigated:
1. When the improvements are part of an approved enhancement,
restoration, or mitigation plan.
2. For construction of new public or private roads and utilities, and
accessory structures, when no practicable alternative location exists.
3. Construction of foot trails, according to the following criteria:
a. Constructed of permeable materials.
b. Designed to minimize impact on the stream system.
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C. Of a maximum width of eight (8) feet.
d. Where feasible, located within the outer half of the buffer,
i.e., the portion of the buffer that is farther away from the stream, except to
cross a stream when approved by the city and all other applicable agencies and
except as appropriate to provide outlook points or similar locations for
educational, scientific, and other purposes which will not adversely affect the
overall functions and values of the wetland.
4. Construction of footbridges and boardwalks.
S. Construction of educational facilities, such as viewing platforms
and informational signs.
6. The construction of outdoor recreation such as fishing piers, boat
launches, benches.
7. Maintenance of pre-existing facilities or temporary uses having
minimal adverse impacts on buffers and no adverse impacts on wetlands. These
may include but are not limited to: maintenance of existing drainage facilities,
low intensity passive recreational activities such as pervious trails, nonpermanent
wildlife watching blinds, short-term scientific or educational activities, and sports
fishing.
8. Stormwater discharge outlets with energy dissipation structures as
approved by the city of Kent. Unless otherwise approved by the director, these
shall be located as close to the outer perimeter of the buffer as allowed by
proper design and function of the discharge system. To the extent that
construction of such outlets impacts vegetation in the buffer, restoration of the
vegetation shall be required.
9. On-going cidmaintenance activities by the city of Kent vegetat en
its public works and parks department vegetation and
management divisions shall be permitted to continue general maintenance of
wetlands and associated buffers. Maintenance shall include but not be limited to
trash removal, removal of non-native vegetation, maintenance of existing
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vegetation as necessary, restoration, enhancement, and sign and fence
maintenance.
H. Building setback lines. A minimum building setback line of fifteen (15)
feet shall be required from the edge of a wetland buffer provided the director
may reduce the building setback limit by up to five (5) feet if construction,
operation, and maintenance of the building do not and will not create a risk of
negative impacts on the adjacent buffer area. Alterations of the building setback
lines shall not be permitted to create additional lots for subdivisions. Approval of
alterations of the BSBL shall be provided in writing by the director, or his/her
designee, and may require mitigation such as buffer enhancement.
Sec. 11.06.610. Avoiding wetland impacts. Regulated activities shall
not be authorized in Category 11 wetlands except where it can be demonstrated
that the impact is both unavoidable and necessary as described below, or that all
reasonable economic uses are denied.
A. Where water -dependent activities are proposed, unavoidable, and
necessary impacts may be permitted where no reasonable alternatives exist
which would not involve wetland impacts; or which would not have less of an
adverse impact on a wetland; and that would not have other significant adverse
environmental consequences.
B. Where nonwater-dependent activities are proposed, the applicant must
demonstrate that:
1. The basic project purpose cannot reasonably be accomplished
using an alternative site in the general region that is available to the applicant.
2. A reduction in the size, scope, configuration, or density of the
project as proposed; and all alternative designs of the project as proposed that
would avoid or result in less adverse impacts on a wetland or its buffer will not
accomplish the basic purpose of the project.
3. In cases where the applicant has refected alternatives to the
project as proposed due to constraints such as zoning, deficiencies of
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infrastructure, or parcel size, the applicant has made a reasonable attempt to
remove or accommodate such constraints.
C. Filling of a hydrologically isolated emergent Category III or Category IV
wetland less than five thousand (5,000) square feet in size shall be permitted,
provided a replacement wetland area is created pursuant to KCC
11.06.660(D)(3)(a). For the purposes of this section, a hydrologically isolated
wetland shall be determined by the U.S. Army Corps of Engineers.
Sec. 11.06.620. Limits of impacts to wetlands.
A. For wetlands where buffers are not connected to riparian corridors,
(Category IV3 wetlands, and Category III -2 wetlands which score less than 20
points for habitat functions
ene "` aeFe in size) the following applies: regulated activities which result in the
filling of no more than ten thousand (10,000) square feet of a wetland may be
permitted if mitigation is provided consistent with the standards.
B. In computing the total allowable wetland fill area under this section, the
director shall include any areas that have been filled since January 1, 1991. For
example, if five thousand (5,000) square feet of a wetland were filled in
February, 1991, future applicants would only be allowed a maximum of five
thousand (5,000) additional square feet under this section. Any proposed fill
over ten thousand (10,000) square feet must demonstrate unavoidable and
necessary impacts.
Sec. 11.06.660. Compensating for wetland impacts.
A. Condition of approval. As a condition of any approval allowing alteration
of wetlands and/or wetland buffers, or as an enforcement action, the director
shall require that the applicant engage in the restoration, creation, or
enhancement of wetlands and their buffers in order to offset the impacts
resulting from the applicant's or violator's actions. The applicant shall develop a
plan that provides for construction, maintenance, and monitoring of replacement
wetlands and/or buffers and, as appropriate, land acquisition that re-create as
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nearly as practicable or improves the original wetlands in terms of acreage,
function, geographic location, and setting.
B. Goal. The overall goal of any compensatory mitigation protect shall be no
net loss of overall wetland acreage or function and to replace any wetland area
lost with wetland(s) and buffers of equivalent functions and values.
Compensation shall be completed prior to wetland destruction, where practicable.
Compensatory mitigation programs shall incorporate the standards and
requirements contained in KCC 11.06.550 and 11.06.560.
C. Restoration and creation of wetlands and wetland buffers. Any person
who alters wetlands shall restore or create wetlands of equivalent functions and
values to those altered in order to compensate for wetland losses. Any created
or restored wetlands shall be protected by the provisions of this chapter.
D. Acreage replacement and enhancement ratio. Wetland alterations shall be
replaced or enhanced using the formulas below; however, the director may
choose to double mitigation ratios in instances where wetlands are filled or
impacted as a result of code violations. The first number specifies the acreage of
wetlands requiring replacement and the second specifies the acreage of wetlands
altered. These ratios do not apply to remedial actions resulting from illegal
alterations.
1. Compensation for alteration of Category 4I wetlands shall be
accomplished as follows:
a. By creation of new wetlands at a ratio of six (6) to one (1);
b. By creation of new wetlands at a ratio of one (1) to one (1)
and by enhancement of existing wetlands at a ratio of ten (10) to one (1); or
C. By a combination of creation of new wetlands and
enhancement of existing wetlands within the range of the ratios set out in
subsections (D)(1)(a) and (b) of this section, so long as a minimum one (1) to
one (1) creation ratio is met (for example, creation of new wetlands at a one and
one-half (1.5) to one (1) ratio along with enhancement of existing wetlands at a
ratio of five (5) to one (1) may be acceptable).
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2. Compensation for alteration of Category 2II wetlands shall be
accomplished as follows:
a. By creation of new wetlands at a ratio of three (3) to one
(1);
b. By creation of new wetlands at a ratio of one (1) to one (1)
and by enhancement of existing wetlands at a ratio of four (4) to one (1); or
C. By a combination of creation of new wetlands and
enhancement of existing wetlands within the range of ratios set out in
subsections (D)(2)(a) and (b) of this section, so long as a minimum one (1) to
one (1) creation ratio is met.
3. Compensation for alteration of Category III3 wetlands shall be
accomplished as follows:
a. By creation of new wetlands at a ratio of two 2 ene and
ene half (1.5) to one (1);
b. By creation of new wetlands at a ratio of one (1) to one (1)
and by enhancement of existing wetlands at a ratio of two 2 eee-(-1) to one (1);
or
C. By a combination of creation of new wetlands and
enhancement of existing wetlands within the range of ratios set out in
subsections (D)(3)(a) and (b) of this section, so long as a minimum one (1) to
one (1) creation ratio is met.
4. Compensation for alteration of Category IV wetlands shall be
accomplished as follows:
a. By creation of new wetlands at a ratio of one and one-half
(1.5) to one (1): or
b. By creation of new wetlands at a ratio of one (1) to one (1)
and by enhancement of existing wetlands at a ratio of one (1) to one (1)
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E. Decreased replacement ratio. The director may decrease the required
replacement ratio where the applicant provides the mitigation prior to altering
the wetland, and a minimum acreage replacement ratio of one (1) to one (1) is
provided. In such a case, the mitigation must be in place, monitored for three
(3) growing seasons and be deemed a success prior to allowing any alterations.
F. Wetland/habitat bank. Mitigation may be allowed within a wetland/habitat
mitigation bank located within the city of Kent once a bank is formed. Proposed
developments must continue to demonstrate avoidance, minimization, and
mitigation prior to being allowed to mitigate using a wetland bank site. A review
of the feasibility of onsite mitigation will be required to be prior to allowing
mitigation credits from a mitigation bank.
G. Wetland type. In-kind compensation shall be provided except that out -of -
kind compensation may be accepted where:
1. The wetland system to be replaced is already significantly
degraded and out -of -kind -replacement will result in a wetland with greater
functional value.
2. Technical problems such as exotic vegetation and changes in
watershed hydrology make implementation of in-kind compensation
impracticable.
3. Out -of -kind replacement will best meet identified regional goals
(e.g., replacement of historically diminished wetland types).
H. Location. Onsite compensation shall be provided except where the
applicant can demonstrate that:
1. The hydrology and ecosystem of the original wetland and those
who benefit from the hydrology and ecosystem will not be substantially damaged
by the onsite loss.
Onsite compensation is not feasible due to problems with hydrology, soils,
or other factors.
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2. Compensation is not practical due to potentially adverse impacts
from surrounding land uses.
3. Existing functional values at the site of the proposed restoration
are significantly greater than lost wetland functional values.
4. Adopted goals for flood storage, flood conveyance, habitat, or
other wetland functions have been established and strongly justify location of
compensatory measures at another site.
I. Offsite compensation. Offsite compensation shall occur within the same
drainage basin as the wetland loss occurred, unless the applicant can
demonstrate extraordinary hardship.
J. Offsite compensation site selection. In selecting compensation sites for
creation or enhancement, applicants shall pursue siting in the following order of
preference:
1. Upland sites which were formerly wetlands and/or significantly
degraded wetlands. Such wetlands are typically small; have only one (1) wetland
class; and have one (1) dominant plant species or a predominance of exotic
species.
2. Idle upland sites generally having bare ground or vegetative cover
consisting primarily of exotic introduced species, weeds, or emergent vegetation.
3. Other disturbed upland.
K. Timing. Where feasible, compensatory projects shall be completed prior
to activities that will disturb wetlands, or immediately after activities that will
temporarily disturb wetlands, or prior to use or occupancy of the activity or
development which was conditioned upon such compensation. Construction of
compensation projects shall be timed to reduce impacts to existing wildlife and
flora.
L. Completion of mitigation construction. On completion of construction, any
approved mitigation project must be signed off by the applicant's qualified
24 Critical Areas Ordinance -
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consultant and approved by the department. A signed letter from the consultant
will indicate that the construction has been completed as approved, and approval
of the installed mitigation plan will begin the monitoring period if appropriate.
SECTION 2. - Amendment. Section 15.08.400 of the Kent City Code,
entitled "Planned unit development, PUD," is amended to read as follows:
15.08.400 Planned unit development, PUD. The intent of the PUD is
to create a process to promote diversity and creativity in site design, and protect
and enhance natural and community features. The process is provided to
encourage unique developments which may combine a mixture of residential,
commercial, and industrial uses. The PUD process permits departures from the
conventional siting, setback, and density requirements of a particular zoning
district in the interest of achieving superior site development, creating open
space, and encouraging imaginative design by permitting design flexibility. By
using flexibility in the application of development standards, this process will
promote developments that will benefit citizens that live and work within the city.
C. Development standards. The following development standards are
minimum requirements for a planned unit development:
2. Minimum site acreage. Minimum site acreage for a PUD is
established according to the zoning district in which the PUD is located, as
follows:
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Zones
Minimum Site Acreage
Multifamily (MR -D, MR -G, MR -M, MR -H, MRT 121
None
MRT 16)
Commercial, office and manufacturing zones
None
SR zones (SR -1, SR -2, SR -3, SR -4.5, SR -6, SR -8)
consisting entirely of detached single-family
5 acres
dwellings as defined in KCC 15.02.115
SR zones (SR -1, SR -2, SR -3, SR -4.5, SR -6, SR -8)
consisting entirely of detached single-family
dwellings as defined in KCC 15.02.115 and if
0 acres
providing increased wetland buffers pursuant to KCC
11.06.600{13�C 3 .
SR zones (SR -1, SR -2, SR -3, SR -4.5, SR -6, SR -8)
not comprised entirely of detached single-family
100 acres
dwellings as defined in KCC 15.02.115
SECTION 3. - Savings. The existing chapters and sections of the Kent
City Code, which are repealed and amended by this ordinance, shall remain in full
force and effect until the effective date of this ordinance.
SECTION 4. - Severability. If any one or more section, subsections, or
sentences of this ordinance are held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this ordinance and
the same shall remain in full force and effect.
SECTION 5. - Effective Date. This ordinance shall take effect and be in
force thirty (30) days from and after its passage as provided by law.
ATTEST:
BRENDA JACOBER, CITY ULERK
26
CrIficalAreas Ordinance -
Revision
APPROVED AS TO FORM:
TO BRUBAKER, CITY ATTORNEY
PASSED: day of August, 2006.
APPROVED: �� day of August, 2006.
PUBLISHED: % % day of August, 2006.
I hereby certify that this is a true copy of Ordinance No. 3 r6-5-�
passed by the city council of the city of Kent, Washington, and approved by the
mayor of the city of Kent as hereon indicated. s
a C -(SEAQ
BRENDA]ACOBER, CLERK
,.P (ervtF\ordmance\CrKica]Areas-080106 doc
27 Critical Areas Ordinance -
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