This chapter shall be known as "Critical Area Regulations."
(Ord. 1853 § 2 (Exh. B), 2018)
A.
This chapter shall apply to land use, development, and platting located in the city limits of Burlington, within the geographical areas that meet the definitions and criteria for critical areas regulation as set forth in this chapter.
B.
The following shall constitute critical areas:
1.
Wetlands and riparian corridors, including Gages Slough. Wetlands serve many important ecological and environmental functions and help to protect public health, safety and welfare by providing flood storage and conveyance, erosion control, fish and shellfish production, fish and wildlife habitat, recreation, water quality protection, water storage, education, scientific research and other public benefits. It is the purpose of this chapter to protect these functions to prevent the continual loss of wetlands, and where practical to enhance or restore wetland functions and values;
2.
Fish and wildlife habitat conservation areas. In addition to their intrinsic value, certain species of fish and wildlife represent important historic, cultural, recreational and economic resources. Many species serve as indicators of the condition of the environment and the quality of life that local residents have invested in, enjoy and respect. It is the purpose of this chapter to protect, restore where practical, and enhance fish and wildlife populations and their associated habitats;
3.
Frequently flooded areas. It is the purpose of this chapter to promote the public health, safety, and general welfare, minimize public and private losses due to flood conditions, and protect the ecological and hydrological functions of the floodplain;
4.
Geologically hazardous areas. Geologically hazardous areas include areas susceptible to the effects of erosion, sliding, earthquake, or other geologic events. They pose a threat to the health and safety of citizens when incompatible residential, commercial, industrial, or infrastructure development is sited in areas of a hazard. Geologic hazards pose a risk to life, property, and resources when steep slopes are destabilized by inappropriate activities and development or when structures or facilities are sited in areas susceptible to natural or human-caused geologic events. Some geologic hazards can be reduced or mitigated by engineering, design, or modified construction practices so that risks to health and safety are acceptable. When technology cannot reduce risks to acceptable levels, building and other construction within identified geologically hazardous areas shall be prohibited;
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1903 § 2 (Exh. A), 2021; Ord. 1933 § 1 (Exh. A), 2023)
A.
This chapter is adopted to assist in orderly development, conserve the value of property, safeguard the public welfare, and provide protection for defined critical areas.
B.
It is the purpose of this chapter to prevent contamination and depletion, avoid exorbitant cleanup costs, hardships and potential physical harm to people.
C.
The ordinance codified in this chapter was developed under the directives of the Growth Management Act to conserve and protect critical areas pursuant to RCW 36.70A.172. "Critical areas" are defined as wetlands, aquifer recharge areas, flood hazard areas, geologically hazardous areas, and fish and wildlife habitat conservation areas. Some of these areas, such as geologic hazards and flood hazard areas, are critical because of the hazard they represent to public health. Others, such as fish and wildlife habitats and wetlands, are critical because of their public value.
D.
Maps are useful primarily as an indicator of the distribution and extent of critical areas. Maps will be used wherever possible as part of the screening process for evaluating individual permit applications. Although a number of map resources are utilized in this chapter, regulatory measures such as buffer requirements are based upon the identification of critical areas during the permit, development authorization, or other approval processes.
E.
Critical areas will be designated by definition and then classified through site assessments so that they can be identified using scientifically based criteria and protected. The use of site assessments to confirm the actual presence and classification of critical areas is central to the management approach developed under this chapter.
F.
The ordinance codified in this chapter was drafted to provide regulatory structure for identification, designation and protection of critical areas. This chapter allows staff to provide site visits, preliminary reviews, and preapplication meetings to assist in the identification of critical areas.
G.
These regulations are intended to:
1.
Protect human life, property, and the public health and safety of the citizens of Burlington;
2.
Minimize the expenditure of public money;
3.
Maintain the city's flood insurance eligibility while avoiding regulations which are unnecessarily restrictive or difficult to administer;
4.
Ensure that wetland and other critical area functions and values are protected to provide public benefits;
5.
Implement the Burlington comprehensive plan.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
A.
Relationship to Other Federal, State and County Jurisdictional Agencies' Regulations. Many state, federal and regional regulations apply to projects conducted within critical areas. Uses otherwise allowed by local codes do not eliminate other agency regulatory requirements.
B.
Jurisdictional Substitution. In cases where other agencies possess jurisdictional control over critical areas and it is determined by the director that the permit conditions satisfy the requirements of this chapter, those requirements may substitute for the requirements of this chapter. Such requirements shall be a condition of critical area approval and be enforceable under this chapter. Such agencies may include, but are not limited to, the United States Army Corps of Engineers, Environmental Protection Agency, and Fish and Wildlife Service, the Swinomish Tribe, and the Washington State Department of Ecology, Department of Natural Resources and Department of Fish and Wildlife. The applicant shall be notified in writing when any such substitution is made.
(Ord. 1853 § 2 (Exh. B), 2018)
A.
Critical areas defined and identified in this chapter shall be mapped whenever possible. These maps shall be advisory and used by the director to provide guidance in determining applicability of the standards to a property. All sites which contain or include critical areas, whether mapped or not, shall be subject to the provisions of this chapter.
B.
Critical area maps, with the exception of the flood insurance rate map used to designate certain flood hazard areas, are provided only as a general guide to alert the user to the possible distribution, location and extent of critical areas. Map identification of critical areas provides only approximate boundaries and locations. The actual locations and boundaries of critical areas, as well as their quality and quantity, shall be based upon the presence of the features applicable to each critical area element in this chapter. Maps shall not be considered a regulatory standard or substitute for site-specific assessments. The application of definitions, methodologies and performance standards pursuant to the site-specific assessment requirements provided in this chapter is the controlling factor in determining the actual presence and extent of critical areas.
C.
Critical area maps maintained by the department shall utilize the best information currently available and should be updated on a continual basis.
D.
Critical areas mapped under the site assessment requirements of this chapter should be compiled in a database and incorporated into critical area maps. This map information shall be utilized to facilitate tracking of compliance with the requirements of this chapter to ensure long-term protection of critical areas.
E.
The city will make interpretations where needed as to exact location of the boundaries of the areas of special flood hazard (e.g., where there appears to be a conflict between a mapped boundary and actual field conditions). If there is a disagreement about the location of the boundary, additional information from a licensed surveyor may be needed, and the application shall be given a reasonable opportunity to appeal the interpretation. Such appeals shall be granted consistent with the standards of Section 60.6 of the rules and regulations of the National Flood Insurance Program (44 CFR 59-76).
(Ord. 1853 § 2 (Exh. B), 2018)
A.
In addition to any other requirements identified in this chapter, or otherwise imposed by the Burlington Municipal Code, all development occurring in critical areas, or critical area buffers, shall meet the following general requirements:
1.
Site. Complete stabilization of all portions of a site which are disturbed or impacted by the proposed development, including all development coverage and construction activity areas, shall be required. Complete stabilization of all portions of a site refers to the process and actions necessary to ensure that existing and proposed site improvements are stabilized, and that all on-site areas and adjacent properties which are disturbed or impacted are stabilized. The proposed development shall be limited and controlled to avoid adverse impacts and potential harm and ensure safe, stable and compatible development appropriate to site conditions. Other reasonable and appropriate solutions to solve site stability problems may be required by the director.
2.
Adjacent Site, Surrounding Area, and Drainage Basin. The proposed development shall ensure safe, stable and compatible development which avoids adverse environmental impacts and potential harm to adjacent sites, the surrounding neighborhood, and the drainage basin. Detailed analysis of impacts of the development upon wetlands, riparian corridors, native vegetation and wildlife habitats, water quality, natural water temperature, slope and soil conditions, and surface water drainage may be required at the request of the director when site and area conditions indicate the need for this analysis. Supplemental technical reports may be required by the director to specify measures to preserve, protect, and maintain adjacent sites and the drainage basin and ensure safe, stable and compatible development.
B.
With the exception of activities identified as exempt under BMC § 14.15.120, any land use activity that can impair the functions and values of critical areas or their buffers through a development activity or by disturbance of the soil or water, and/or by removal of, or damage to, existing vegetation shall require critical areas review and written authorization pursuant to this chapter. Vegetation destruction or removal, other than the normal maintenance of existing landscaping identified as exempt under BMC § 14.15.120, shall be prohibited within a critical area or its required buffer, unless there is an approved buffer management plan pursuant to the requirements of the particular critical area that demonstrates there will be no adverse impact to the critical area with the proposed vegetation removal and disturbance of the soil or water and includes any mitigation or buffer enhancement necessary to address critical areas impacts. Authorizations required under this chapter overlay other permit and approval requirements of the Burlington Municipal Code. Regardless of whether a development permit or approval is required, any proposed alteration that can adversely affect a critical area or its standard buffers' functions must comply with the substantive and procedural requirements of this chapter. Critical areas review pursuant to this chapter shall be conducted as part of the underlying permit or approval, where applicable. It is the responsibility of the landowner, or designee, who conducts or proposes to undertake land use activities that can adversely impact critical areas or their buffers to obtain authorization prior to commencing such activities. In some cases, the typical thresholds that trigger review and permits have been reduced to zero for any development activity located within a critical area or its required buffer.
C.
Procedures. No land use development permit, land division, development approval, or other authorization required shall be granted until the applicant has demonstrated compliance with the applicable provisions of this chapter
1.
The applicant shall demonstrate that the proposal submitted conforms to the purposes and standards of this chapter, assesses impacts an the critical area from activities and uses proposed, and identifies protective mechanisms adequate to meet the requirements of this chapter.
2.
Each proposal shall be reviewed by the director for consistency with the applicable regulations identified in this chapter and to ensure the protective mechanisms proposed are sufficient to protect the critical area, public health, safety and welfare. Conditions of approval shall be specified as necessary to ensure compliance with the provisions of this chapter. If there are no conditions under which the proposal could be approved, then the proposal shall be denied.
D.
All land use actions and development activities shall be conditioned as necessary to mitigate impacts to critical areas as required by this chapter and any project that cannot adequately mitigate its impacts to critical areas shall be denied. In all cases mitigation sequencing shall be applied and no net loss of critical areas functions and values shall be permitted.
E.
Conflicts with Other Provisions. If any provision of this chapter conflicts with any other applicable code provision, the more restrictive shall apply unless specifically accepted in this chapter.
G.
SEPA Compliance. The goals, policies and purposes set forth in this chapter shall be considered policies of the State Environmental Policy Act. When applicable the applicant must meet SEPA requirements.
H.
Other Permits Required. It is recognized that many local, state, and/or federal permit conditions may apply to the proposed action, and that compliance with the provisions of this chapter may not necessarily constitute compliance with other such requirements.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
Public notice for projects subject to the provisions of this chapter shall be provided pursuant to the requirements of BMC Title 14A, land use permit process.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
In addition to the application submittal requirements specified in other codes, a complete application for development subject to this chapter shall include the following additional information:
A.
Surveyed Site Plan. A surveyed site plan shall be prepared by a state of Washington licensed surveyor and shall include the following, when required by the community development director:
1.
Existing topography at two-foot contour intervals on site, within 25 feet of the site's abutting boundaries, and within the full width of abutting public and private rights-of-way and easements;
2.
Terrain and drainage flow characteristics within the site, within 25 feet of the site's abutting boundaries, and within the full width of abutting public and private rights-of-way and easements;
3.
Proposed location and boundaries of all required undisturbed fenced areas and buffers on site and on adjacent lands;
4.
Location of all vegetation, including location and description of all trees over six inches in diameter measured five feet above the base of the trunk, shrubs over eight feet tall or six feet wide, and noting their species;
5.
Location and boundaries of all existing and proposed site improvements on the site and within 25 feet of the site's property boundaries, and the full width of abutting public and private rights-of-way and easements. This shall include the limits of development coverage, impervious surfaces and construction activity areas (noting total square footage and percentage of site occupied);
6.
Location of all grading activities in progress or proposed, and all drainage control facilities or systems in existence, in progress or proposed within 25 feet of the site's property boundaries, and the full width of abutting public and private rights-of-way and easements;
7.
Location of all existing and proposed utilities (water, sewer, gas, electric, phone, cable, etc.), both above and below ground, on site, on adjacent lands within 25 feet of the site's property lines, and in the full width of abutting public rights-of-way, and proposed methods and locations for the proposed development to hook up to these services;
8.
Such other additional site plan information as necessary to complete review of a project or waive specific submittal requirements when not necessary for project review.
B.
Technical Reports. Technical reports shall be prepared and submitted as required by this chapter.
(Ord. 1853 § 2 (Exh. B), 2018)
A.
The director shall be responsible for the administration of this chapter, including:
1.
Review applications for land use actions to verify compliance with this chapter, issue permit decisions, or make recommendations to the hearing examiner in accordance with the permit processing procedures identified in BMC Title 14A;
2.
Review applications for land use actions to assure that all necessary permits have been obtained from those federal, state or local government agencies from which prior approval is required;
3.
Recording and maintaining records of:
a.
As-built elevation above mean sea level of the lowest floor including basement of all new and substantially improved structures requiring a floodplain approval and whether same structure contains a basement,
b.
Certification by registered professional engineer or architect as required by this chapter,
c.
Floodplain approvals and other actions pursuant to the administration of this chapter;
4.
Notification to adjacent communities and the Department of Ecology prior to any alteration or relocation of a watercourse with copy to FEMA, and maintenance within the altered or relocated portion of said watercourse so that flood-carrying capacity is not diminished;
5.
When base flood elevation data has not been provided, obtaining, reviewing, and reasonably utilizing any base flood elevation and floodway data that should become available from a federal, state or other source in order to administer standards and floodways;
B.
This chapter shall be administered in accordance with chapter 86.16 RCW and chapter 508-60 WAC. This chapter shall be revised as necessary to conform with any changes in state rules pertaining to flood control zones which may be adopted by the State Department of Ecology subsequent to the effective date of delegation of the state's permit program to the city.
C.
The administrative procedure for critical areas review shall be as follows:
1.
Preliminary Screening. Unless explicitly exempted from review under this chapter, all development proposals shall be screened for the presence of critical areas indicators, critical areas, and critical area buffers at the time of application. The city may employ the following preliminary screening methods:
a.
Review a critical areas checklist prepared by the applicant;
b.
Review maps, critical area reports, permit records, or previous critical area studies;
c.
Inspect the site;
d.
Review aerial photography, imagery, or remote sensing data;
e.
Review studies, inventories, mapping, and data compiled by state, federal and local government agencies;
f.
Other methods consistent with best available science.
2.
Repealed by Ord. 1933.
3.
Repealed by Ord. 1933.
4.
Repealed by Ord. 1933.
5.
Determination That Critical Areas May Be Present. If the city determines that critical area indicators, critical areas, or critical area buffers are present within 300 feet of the proposed activity or within a distance otherwise specified in this chapter, then the determination shall be recorded in the project file and the applicant shall provide a critical areas site assessment as specified in this chapter. Development of a site assessment may precede a site visit; provided, that no disturbance of vegetation or land surface occurs prior to authorization.
6.
Critical Areas Determination and Conditions of Approval. Based on the critical areas site assessment report and other available critical areas information, the city shall make a determination on the proposed activity. A determination to approve a proposed activity shall include designation of protected critical areas (PCAs) pursuant to this chapter and stipulation of binding conditions and required mitigation, monitoring, maintenance or other conditions of approval pursuant to this chapter. If there are no conditions under which the proposed activity could be approved, then the community development director shall deny the proposal.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
A.
Site Assessment Required. Every application for an activity that might alter or adversely affect a critical area or critical area buffer shall include a critical area site assessment. Critical areas site assessments, as described in more detail in the various sections for each type of critical area, shall be submitted as part of a complete application for a development permit, or other approval of land use activities having the potential to impact critical areas or their buffers, by a qualified expert.
B.
Site Assessment Preparation. The critical area site assessment shall be prepared by a qualified expert for the type of critical area or areas involved and shall contain the information specified for each type of critical area. In general, the site assessment shall include critical area inventory, assessment of impacts and, where applicable, proposed mitigation, land use restrictions and landowner management, maintenance and monitoring responsibilities. The city may require peer review or review by personnel from state and federal agencies with expertise. The cost of any required peer review shall be borne by the applicant in accordance with the city's adopted fee schedule.
C.
Any site plans required by this chapter may be combined into a single site plan wherever possible.
D.
Critical Areas Determination and Conditions of Approval. After receiving a complete site assessment report, the city shall determine whether or not the proposed activity meets the requirements of this chapter and under what conditions. This determination shall utilize the information provided in the site assessment report and all other resource information available.
E.
Critical area determinations shall be made in writing, contain findings addressing the requirements of this chapter, and shall identify any conditions of approval, land use prohibitions, and mitigation, management, monitoring and maintenance requirements.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
This chapter shall apply to all public and private land use actions and development including, but not limited to, new structures, additions, land divisions, grading, and filling located on either public or private property. The development activities listed below may be exempted from the detailed critical area review requirements of this chapter; provided, that any development in a floodplain management area constituting a substantial improvement or substantial repair shall be subject to review. Exemption from review and permitting shall not be construed to constitute an exemption from the substantive requirements of this chapter. No land use action or development activity shall result in a net loss of critical area functions and values.
A.
Emergencies that threaten the public health, safety and welfare. An emergency is an unanticipated and imminent threat to the public health or safety or to the environment which requires immediate action within a period of time too short to allow full compliance with this chapter. Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods that can address the emergency but also that have the least possible impact to the critical area or its buffer. The responsible party (property owner or agent) shall restore the critical area and buffer after the emergency to the extent feasible. The person or agency undertaking such action shall notify the director within one working day or as soon as practical following commencement of the emergency activity. Following such notification, the director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the director determines that the action taken or any part of the action taken was beyond the scope of allowed emergency actions, then the enforcement provision shall apply.
B.
Normal and routine maintenance or repair of existing structures, utilities, sewage disposal systems, potable water systems, drainage facilities, ponds, or public and private roads and driveways associated with preexisting residential or commercial development, provided any maintenance or repair activities shall use reasonable methods with the least amount of potential impact to the critical areas and any impact to a critical area or its buffer shall be restored after the maintenance to the extent feasible.
C.
Normal maintenance, repair, or operation of existing structures, facilities, and improved areas accessory to a single-family residential use, provided any maintenance or repair activities shall use reasonable methods with the least amount of potential impact to the critical area and any impact to a critical area or its buffer shall be restored after the maintenance to the extent feasible.
D.
Modification of an existing single-family residence that does not change the use from residential, does not expand the building footprint or increase septic effluent, and does not adversely impact critical areas or their buffers.
E.
Modification of other than a single-family use which does not expand the building footprint, alter the use or increase septic effluent, pursuant to the requirements of the nonconforming use and structure provisions, and does not adversely impact critical areas or their buffers.
F.
Outdoor recreational activities which do not adversely impact critical areas or their buffers.
G.
The harvesting of wild crops in a manner that is not injurious to natural reproduction of such crops and provided the harvesting does not require tilling soil, planting crops, or changing existing topography, water conditions or water sources; and provided further, that the activity does not adversely impact critical areas or their buffers.
H.
The operation and maintenance, construction and reconstruction of diking and drainage systems which protect life and property along the Skagit River.
I.
Education and scientific research activities which do not adversely impact critical areas or their buffers.
J.
Construction or modification of navigational aids and channels markers.
K.
Site investigation work necessary for land use applications such as surveys, soil logs, percolation tests and other related activities which do not adversely impact critical areas or their buffers. In every case, critical area impacts shall be minimized and disturbed areas shall be immediately restored.
L.
Maintenance activities such as mowing and normal pruning; provided, that such maintenance activities are limited to existing landscaping improvements and do not expand into critical areas or associated buffers, do not expose soils, do not alter topography, do not destroy or clear native vegetation, and do not diminish water quality or quantity.
M.
Fish, wildlife, wetland and/or riparian enhancement activities not required as mitigation; provided, that the project is approved by the U. S. Department of Fish and Wildlife, the Washington State Department of Fish and Wildlife or the Washington State Department of Ecology.
N.
For developments in floodplain management areas:
O.
All such activities shall be carried out in ways that cause the least impact to critical areas and their buffers. If any damage is caused to a critical area or buffer in connection with such activity, the critical area and its buffer must be restored to the extent feasible. To be exempt does not give permission to destroy a critical area or ignore risk. An exemption from permit requirements is not an exemption from complying with the other requirements of this chapter. Proponents of such activities shall be responsible for notifying the community development director if any damage occurs and shall provide all necessary restoration or mitigation. For information on identifying, protecting or mitigating adverse impacts to critical areas, refer to sections in this chapter on wetlands, aquifer recharge areas, geologically hazardous areas, fish and wildlife habitat conservation areas, and flood hazard areas.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1903 § 2 (Exh. A), 2021; Ord. 1933 § 1 (Exh. A), 2023)
All land use actions and development activities located in critical areas or critical area buffers shall be subject to the following general construction and maintenance standards:
A.
All buffer areas and other designated protected areas shall be fenced with a highly visible and durable protective barrier during construction to prevent access and protect critical areas.
B.
All disturbed areas on the site, including development coverage and construction activity areas, shall be controlled in a manner sufficient to control drainage and prevent erosion during construction, and revegetated to promote drainage control and prevent erosion after construction. In cases where erosion potential is severe, a vegetation and revegetation report prepared by a qualified professional with landscaping, plant ecology and botany education and experience may be required. All revegetation shall consist of native, noninvasive trees, shrubs, and ground cover that is suitable for the location and does not require permanent irrigation systems for long-term survival.
C.
When development is proposed in a critical area or critical area buffer, grading activities shall be strictly limited to areas located on the most environmentally suitable portion of the site.
D.
All drainage associated with the development shall be managed using an approved drainage control system in accordance with the provisions of this title.
E.
Land use actions and development shall comply with the seismic design requirements identified in the building code adopted by, or referenced in, BMC Title 15.
F.
All grading in critical areas shall not occur prior to March 31st and shall be stabilized by October 31st unless demonstrated to the satisfaction of the director based on approved technical analysis that no environmental harm or safety issues would result from grading between November 1st and March 31st.
G.
Construction activities shall adhere to a prepared schedule approved by the city prior to issuance of a building or development permit.
This schedule shall include, but not be limited to, a schedule for compliance with project conditions, limits of construction and work activities, equipment to be used, start and duration of each phase, and work sequencing.
H.
Dumping or filling is prohibited in wetlands and special flood risk areas. Dumping is prohibited in all critical areas. Dumping includes deposit of yard waste, trash, litter, refuse, dirt, concrete, asphalt, rocks or similar materials, but shall not include work authorized by approved plans and permits.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
If the application of this chapter would result in denial of reasonable and economically viable use of a property, then a landowner may seek a reasonable use exception from the standards of this chapter, except for the flood hazard critical area where no exceptions are allowed. Reasonable use exceptions shall only apply to legal lots of record established prior to the effective date of this chapter. Reasonable use exceptions are intended as a "last resort" when no plan for mitigation can meet the requirements of this chapter and allow the applicant a reasonable economically viable use of their property. Reasonable use exceptions may only be granted under the following conditions:
A.
The application of this chapter would deny all reasonable and economically viable use of the property and there is no reasonable and economically viable use with a lesser impact on the critical area than the use proposed; and
B.
The proposed development does not pose a threat to the public health and safety; and any proposed modification to a critical area will be evaluated through consideration of a site assessment and mitigation plan prepared by the applicant's qualified consultant pursuant to the requirements of this chapter, and will be the minimum necessary to allow reasonable and economically viable use of the property; and
C.
Reasonable use determinations may be issued with conditions of approval, including modifications to the size and placement of structures and facilities to minimize impacts to critical areas and associated buffers. Mitigation requirements may also be imposed to ensure that all impacts are mitigated to the maximum extent feasible.
(Ord. 1853 § 2 (Exh. B), 2018)
A.
Buffers.
1.
As described in more detail in each relevant section, buffers have in some cases been determined necessary and appropriate to protect critical areas and their functions or to prevent risk from a critical area hazard. In those sections of this chapter where specific buffers are identified, those buffers are deemed "required" or "standard" buffers. If a project or activity does not propose any alteration of those buffers or of the associated critical area and the city determines that these buffers are adequate to protect the critical area or to prevent risk of a hazard from the critical area, then subject to the provisions of this section, no additional mitigation will be required. Once the critical area and its buffer have properly been delineated through a critical areas assessment and any conditions of approval have been established to ensure protection of the critical area function, no further critical areas mitigation assessment is required, except as necessary to ensure that long-term protection of critical areas and buffers is met in practice through compliance with the provisions of this section. The applicant shall ensure the protection of critical area by performing a site assessment on the entire parcel.
2.
If, however, based on a site assessment by a qualified expert, unique features of the particular critical area or its buffer or of the proposed development, the qualified expert determines that additional buffers and/or mitigation measures beyond these buffers are necessary to adequately protect the function of the critical area or to prevent risk of a hazard from the critical area, such additional mitigation requirements may be imposed, provided the qualified expert can demonstrate, based on best available science, why that additional mitigation or buffering is required to adequately protect the critical area function or to prevent hazard from a critical area.
3.
If the applicant proposes to reduce buffers or to alter the critical area or its required buffer, then the applicant shall demonstrate, based on best available science, why such buffer and/or critical area modification, together with such alternative mitigation proposed in the critical areas assessment, is sufficient to provide equal or better protection of the critical area function or provide no increased risk of a hazard from the critical area.
4.
The critical areas assessment and the conditions of approval shall make adequate provision for long-term protection related to critical areas and buffers, and shall fully address the requirements of this chapter.
However, critical areas and/or buffers identified as protected critical areas (PCAs) as defined in this chapter do not require any provisions for public access, and appropriate restrictions may be included in the easement or title documents. Critical areas and/or buffers identified as PCAs are, however, subject to periodic inspection by the director, upon prior notification to the landowner, to ensure long-term protection.
5.
Protected Critical Areas (PCAs).
a.
For proposed land divisions, critical areas and their associated buffers identified through the site assessment and city review process shall be designated as PCAs and placed in separate tracts or easements and protected through protective covenants shown on the face of the recorded plat. (See BMC § 14.15.160, Protected critical area (PCA) requirements.)
b.
For development projects or land use activities not involving a new land division, the critical area and its associated buffer identified through the site assessment process shall instead be identified as a PCA by either easement, open space designation or permit conditions, all including restrictive covenants and recorded with the auditor on a site plan to ensure long-term protection. Critical areas and/or buffers identified as PCAs are subject to periodic inspection, upon prior notification to the landowner, to ensure long-term protection.
6.
Open Space – Protected Area. If a portion of a parcel contains a proposed development project that triggers a development permit, and has not had its critical areas and associated buffers delineated because it was outside the project or area affected by the project, then further critical areas assessment may be required in the future prior to any change of use, or new development permit for that portion of the site.
B.
Mitigation. All proposed alterations to critical areas or associated buffers shall require mitigation sufficient to provide for and maintain the functional values of the critical area or to prevent risk from a critical area hazard and shall give adequate consideration to the reasonable economically viable use of the property. Mitigation of one critical area impact should not result in unmitigated impacts to another critical area. Mitigation may include, but is not limited to: buffers, setbacks, limits on clearing and grading, best management practices for erosion control and maintenance of water quality, or other conditions appropriate to avoid or mitigate identified adverse impacts.
C.
Preferred Mitigation Sequence. Mitigation includes avoiding, minimizing or compensating for adverse impacts to regulated critical areas or their buffers. The preferred sequence of mitigation is defined below:
1.
Avoid the impact altogether by not taking a certain action or parts of an action;
2.
Minimize the impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology, or by taking affirmative steps to avoid or reduce impacts;
3.
Rectify the impact by repairing, rehabilitating or restoring the affected environment to the conditions existing at the time of the initiation of the project or activity;
4.
Reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action;
5.
Compensate for the impact by replacing, enhancing, or providing substitute resources or environments;
6.
All proposed mitigation shall be included in the critical areas assessment. The critical areas mitigation shall include the following:
a.
Description of proposed mitigations (critical areas lost/critical areas gained);
b.
Analysis of avoidance, minimization, reduction, and compensation;
c.
Functional analysis of mitigation/analysis of prevention of risk hazard;
d.
Proposed applicant or landowner monitoring or inspection measures and schedule, including specification of method and frequency of submittal of reports on results; and
e.
Contingency plan.
D.
Mitigation requirements shall be identified in written conditions of approval and shall be included in an approved mitigation plan.
E.
Financial Assurance. The approved mitigation plan shall be completed prior to final approval of the development permit. For all projects with an estimated mitigation cost of $4,000 or over, the financial assurance may be required to assure compliance with the mitigation plan if the complete mitigation proposed in the site assessment cannot be completed prior to final approval of the development permit. Financial assurance shall be in the form of either a surety bond, performance bond, assignment of savings account or an irrevocable letter of credit guaranteed by an acceptable financial institution with terms and conditions acceptable to the city attorney, shall be in the amount of 125 percent of the estimated cost of the uncompleted actions or construction, and shall be assigned in favor of the city of Burlington. The term of the financial assurance shall remain in place until the required mitigation is complete.
F.
Monitoring of Critical Areas Mitigation. On a regular basis, but no less frequently than once every two years, the city shall survey a sampling of projects and activities for which critical area site assessments were required, including mitigation plans, potentially impacting fish-bearing streams and/or Category I, II or III wetlands. The sample shall be taken from permits or approvals issued more than 10 months prior to the sampling date. The selected sites shall be inspected for critical area and buffer size and condition and for compliance with any required mitigation or other conditions of approval. Results of such sampling shall be included in the permanent record for the project or activity, shall be reported to the city council, and shall also be utilized for enforcement purposes.
(Ord. 1853 § 2 (Exh. B), 2018)
A.
PCA Identification and Recording.
1.
PCA Identification. Approval of development projects which trigger a development permit and other land use activities that can cause adverse impacts to critical areas and/or their buffers shall require the identification and designation of PCAs by the community development director. This section is intended to apply to unique critical area elements such as buffers or wellhead protection areas that can cause adverse impacts; location in the floodplain unless adjacent to a wetland or riparian corridor does not require recording of a PCA. PCAs shall include all critical areas and associated buffers on the proposed project site which have been identified through the site assessment process.
2.
PCA Recording. All PCAs shall be recorded with the county auditor in accordance with the procedures established under this section. The applicant shall be responsible for all fees and other costs associated with recording of PCAs.
3.
For each project or activity that requires recording of PCAs, the following information shall be recorded with the auditor and be readily available to the public upon request:
a.
Recorded documents signed by the landowner and the director which stipulates any special conditions of approval, protective covenants, binding conditions, or other requirements such as use restrictions, required mitigation, and/or landowner maintenance or monitoring requirements established at the time of approval;
b.
Required final plat map or site plan clearly showing the locations of PCAs, existing vegetation and permanent buffer edge markers;
c.
Additional information necessary to document the critical areas inventory at the time of approval, including descriptions of identified critical areas, their locations, functions and values, and existing critical areas or buffer vegetation;
d.
Identification of any local responsibilities beyond those required by this chapter;
e.
Reference to the file containing the complete record of information pertaining to approval of the project or activity.
4.
Permanent Buffer Edge Markers. Permanent edge markers and fencing along the outer edges of PCAs, with the exception of aquifer recharge areas, may be required. The director shall have the authority to specify the size, spacing, and other required characteristics of any critical area markers or fencing and may require that critical areas, buffers, and PCAs be surveyed.
B.
Protected Critical Area (PCA) Designations for New Land Divisions.
1.
For land divisions where site assessments have occurred pursuant to this chapter, all PCAs shall be placed into separate tracts or easements, whose uses shall be regulated by the provisions of this chapter and any conditions of approval, including protective covenants and binding agreements as provided for under subsection (A) of this section. Area within a PCA can be included in total acreage for development purposes end may be used in lot area or density calculations. PCAs may be owned and maintained by the owner of the lot of which they are a part or transferred to the homeowners association or land trust. Wetlands and buffers in the Gages Slough corridor may be donated to the city in exchange for park impact fee credit.
2.
Recording. PCA designations shall be recorded with the auditor as part of the plat approval process.
The auditor file number referencing the agreement shall be on the face of the plat and its provisions shall run with the land.
3.
PCA Descriptions. The location of PCAs shall be clearly identified on site plans and on preliminary and final plat maps. PCAs shall be labeled using the letters A through Z, or another labeling system approved by the community development director. Where more than one lot is involved, each lot shall carry independent labeling as described in subsection (D)(1) of this section.
4.
Ingress, Egress and Use. Owners of PCAs shall grant ingress and egress by the community development director or his or her agent for monitoring and evaluation of compliance with established conditions of approval, binding conditions or any required mitigation. As part of an approved land division, the use limitations required of a designated and regulated critical area according to the provisions of this chapter, including the conclusions of the critical areas site assessment report and any conditions of approval, protective covenants and other binding conditions, shall be clearly stated on the face of the recorded plat.
C.
PCAs on Preexisting Lots.
1.
For development proposals and other land use activities that can adversely impact critical areas on preexisting lots, not part of a proposed land division or other form of multiple lot development, PCAs shall be identified on a scaled site plan showing the location of the PCA, structures (existing and proposed) and their distances from the PCA and lot lines to show relative location within the subject parcel(s). The project or activity shall be conditioned for critical area protection and the resulting information recorded with the auditor as defined under subsection (A) of this section. The site plan may be prepared by the applicant and all distances and locations of structures may be measured from the established PCA boundary to within plus or minus five feet.
2.
Ingress and Egress. The city shall be granted access to PCAs for monitoring and evaluation of compliance with established conditions of approval, binding conditions or any required mitigation.
D.
PCA Mapping, Labeling, and Area Calculations.
1.
All PCAs shall be mapped. The area shall be delineated on the final plat map or on a site plan to an accuracy of plus or minus five feet horizontal and monumented in the field by a qualified expert. The delineated boundaries of critical areas, critical area buffers, and mitigation sites shall be surveyed. The director may waive this requirement for simple small scale projects or where access considerations make a complete survey infeasible.
2.
During construction phases of development, clear temporary marking using flagging and staking shall be maintained along the outer limits of the delineated PCA or the limits of the proposed site disturbance outside of the PCA. Prior to the start of construction activity, and as necessary during construction, temporary markings shall be inspected and approved by the community development director or designee. The person responsible for inspecting the temporary flagging shall provide written confirmation to be included in the record as to whether or not the flagging has been installed consistent with the permit requirements prior to commencement of the permitted activity.
3.
All PCAs shall include the necessary labeling to show calculated area (in square feet or acreage), and type and/or class of critical area within each lot. This information shall be noted on the face of the approved plat or site plan.
4.
Sign, Marker and Fence Maintenance. It is the responsibility of the landowner to maintain the required PCA markers, signs or fences in working order throughout the duration of the development project or land use activity. Maintenance includes any necessary replacement. Removal of required signs, markers or fences without prior written approval of the director shall be considered a violation of this chapter.
(Ord. 1853 § 2 (Exh. B), 2018; Ord. 1933 § 1 (Exh. A), 2023)
The following incentives are intended to minimize the burden to individual property owners from application of the provisions of this chapter and assist the city in achieving the goals of this chapter:
A.
Open Space. Any property owner on whose property a critical area or its associated buffer is located and who proposes to put the critical area and buffer in a separate open space tract may apply for current use property tax assessment on that separate tract pursuant to chapter 84.34 RCW.
B.
Conservation Easement. Any person who owns an identified critical area or its associated buffer may place a conservation easement over that portion of the property by naming a qualified designee under RCW 64.04.130 as beneficiary of the conservation easement. This conservation easement can be used in lieu of the creation of a separate critical areas tract to qualify for open space tax assessment described in subsection (A) of this section.
The purpose of the easement shall be to preserve, protect, maintain, restore and limit future use of the property affected. The terms of the conservation easement may include prohibitions or restrictions on access and shall be approved by the property owner and the qualified designee.
(Ord. 1853 § 2 (Exh. B), 2018)