Article VI Permit Review Criteria

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

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

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

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

Is consistent with the purpose of this title;

Is consistent with the intent of the standard; and

Will not result in degradation of the critical area.

The Administrative Official shall consider the following:

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

The functions and values that the critical area performs;

The overall intensity of the proposed use;

The presence of threatened, endangered, or sensitive species;

The site's susceptibility to severe erosion;

(vi)

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

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

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

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

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

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

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

(vi)

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

(vii)

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

(d)

The following criteria must be met to reduce the vegetative buffers found in tables 6-1 and 6-2 in YCC § 16C.06.016.

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

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

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

The buffer reduction will not adversely affect salmonid habitat.

(Ord. 13-2007 § 1 (Exh. A)(16C.03.23), 2007; Ord. 4-2013 § 2 (Exh. 2) (part), 2013; Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017; Ord. 8-2021 § 2(C) (Exh. 1), 2021)

16C.03.24 Reasonable Use Exception.

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

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

Decision Criteria. Decisions on the Reasonable Use request shall be based on the general decision criteria found in Section 16C.03.14 (Authorization Decisions – Basis for Action), together with the criteria below. The Reasonable Use request shall be accompanied by the evidence necessary to demonstrate conformance with the criteria below. Failure to satisfy any one of the criteria shall result in denial of the request. The burden of proof shall be on the applicant to bring forth evidence in support of the application and to provide sufficient information on which any decision has to be made on the application.

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

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

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

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

(Ord. 13-2007 § 1 (Exh. A)(16C.03.24), 2007; Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017; Ord. 8-2021 § 2(C) (Exh. 1), 2021)

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

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

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

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

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

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

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

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

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

16C.03.26 Non-Conforming Uses and Facilities.

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

(Ord. 13-2007 § 1 (Exh. A)(16C.03.25), 2007; Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017; Ord. 8-2021 § 2(C) (Exh. 1), 2021)

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

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

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

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

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

Process.

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

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

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

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

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

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

Alterations to Nonconforming Uses.

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

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

Decision Criteria.

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

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

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

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

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

Decisions on Nonconforming Uses.

16C.03.27 General Critical Areas Protective Measures.

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

(Ord. 13-2007 § 1 (Exh. A)(16C.03.26), 2007; Ord. 6-2011 § 2 (Exh. A) (part), 2011; Ord. 5-2017 § 2(C) (Exh. 1) (part), 2017; Ord. 8-2021 § 2(C) (Exh. 1), 2021)

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

Financial Guarantees to Ensure Mitigation, Maintenance, and Monitoring.

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

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

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

(d)

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

(e)

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

(f)

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

(g)

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

(h)

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

Declarative Covenants.

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

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

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

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

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

Within a recorded easement or right-of-way;

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

On the site of a permanent public facility.

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

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

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

Critical areas shall be actively protected through the following:

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

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

(A)

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

(B)

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

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

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