This chapter shall be known and may be cited as the city of Port Orchard's "critical areas ordinance" or "CAO."
(Ord. 018-25, 11/18/2025)
The purpose of this chapter is to implement the goals, policies, guidelines, and requirements of the city's comprehensive plan and the Washington State Growth Management Act to protect critical areas, the environment, human life, and property from harm and degradation in accordance with the Growth Management Act through the application of best available science, as determined according to WAC 365-195-900 through 365-195-925 and RCW 36.70A.172, and in consultation with state and federal agencies and other qualified professionals.
(Ord. 018-25, 11/18/2025)
No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the requirements of this Title.
Except as provided for otherwise herein, the provisions of this chapter shall apply to all persons and agencies, public or private, engaging in land uses, building, and/or development activity in the city of Port Orchard that requires city approval.
(1)
Critical Areas Review. All uses, activities, and development in critical areas and their buffers, whether on public or private property, shall comply with the requirements of this chapter. These regulations apply to all uses and activities within areas or adjacent areas designated as regulated critical areas and/or their buffers that are within 300 feet of a site unless identified as exempt in Section 20.162.036. Regulated uses and activities include, but are not limited to:
(a)
Removing, excavating, disturbing, or dredging soil, sand, gravel, minerals, organic matter, or materials of any kind;
(b)
Dumping, discharging, or filling with any material;
(c)
Draining, flooding, or disturbing the water level or water table;
(d)
Driving pilings or placing obstructions;
(e)
Constructing, demolishing, or altering the size of any structure or infrastructure that results in disturbance of a critical area or the addition of any impervious surface coverage to a site that results in disturbance of a critical area;
(f)
Destroying or altering vegetation through clearing, grading, harvesting, shading, or planting vegetation that would alter the character of a critical area;
(g)
Activities that result in significant changes in water temperature and physical or chemical characteristics of water sources, including quantity and pollutants; and
(h)
Any other activity that has a potential to adversely impact or alter a critical area or established buffer not otherwise exempt from the provisions of this chapter.
(Ord. 018-25, 11/18/2025)
(1)
Nothing in this chapter in any way limits, or may be construed to limit, the authority of the city under any other applicable law, nor in any way decreases the responsibility of the applicant to comply with all other applicable local, state, and federal laws and regulations.
(2)
These critical areas regulations shall apply as an overlay and in addition to land use, development, building, and other regulations adopted by the city.
(3)
When any provision of any other chapter of the POMC conflicts with this chapter or when the provisions of this chapter are in conflict, that provision which provides more protection to environmentally critical areas shall apply unless specifically provided otherwise in this chapter or unless such provision conflicts with federal or state laws or regulations.
(4)
Compliance with the provisions of this chapter does not constitute compliance with other federal, state, and local regulations and permit requirements that may be required. The applicant is responsible for complying with all requirements, apart from the regulations established in this chapter.
(Ord. 018-25, 11/18/2025)
(1)
Not all critical areas in the City of Port Orchard are fully mapped. The approximate location and extent of mapped critical areas within the city are shown on the maps adopted as part of this chapter, and incorporated herein by this reference. These maps shall be used only as a general guide for the assistance of the department and the public; for a specific development or use proposal, the type, extent and boundaries shall be determined in the field by a qualified specialist or staff person according to the requirements of this chapter. In the event of a conflict between a critical area location shown on the city's maps and that of an on-site determination, the on-site determination shall apply.
(2)
Future Inventory Provisions. The city will review map inventory information of all critical areas as it becomes available or on an annual basis. Mapping will include critical areas that are identified through site-specific analysis by local, state and federal agencies, tribal governments, site-specific environmental reports and other sources.
(Ord. 018-25, 11/18/2025)
(1)
The Community Development Director, or their authorized designee, shall administer and interpret the provisions of this chapter, except as otherwise specifically provided. The director shall determine whether building, development, platting, or alteration of vegetation, trees, or habitat is subject to this chapter. The director may also consult with other city departments and state and federal agencies as necessary to obtain additional technical and environmental review assistance. The director is authorized to adopt such administrative rules and regulations as are necessary and appropriate to implement the provisions of this chapter.
(2)
This chapter is to be administered with flexibility and attention to site-specific characteristics. It is not the intent of this chapter to make a parcel of property unusable by denying its owner reasonable economic use of the property nor to prevent the provision of public facilities and services necessary to support existing development.
(3)
The approvals granted under this chapter shall be valid for the same time period as the underlying permit (e.g., preliminary plat, building permit, etc.). If the underlying permit does not contain a specified expiration date, then approvals granted under this chapter shall be valid for a period of three years from the date of issue, unless a longer or shorter period is specified by the director or by a development agreement authorized by Chapter 36.70B RCW and consistent with POMC Chapter 20.26.
(4)
If an activity is subject to this chapter but is not subject to any established city permit or approval, the proponent shall obtain written authorization from the director prior to commencement to ensure compliance with this chapter. Such authorization shall be processed as a Type I land use decision pursuant to Chapter 20.22 POMC.
(5)
Nothing in this chapter in any way limits, or may be construed to limit, the authority of the city under any other applicable law, nor in any way decreases the responsibility of the applicant to comply with all other applicable local, state, and federal laws and regulations.
(Ord. 018-25, 11/18/2025)
This chapter establishes two distinct critical areas review processes that apply to activities regulated by this Title. Critical areas review shall be conducted in conjunction with the underlying permit application, except as described in subsection (1) of this section, and shall not constitute a permit action. The two review processes are as follows:
(1)
Critical Areas Review and Verification Unrelated to an Underlying Permit. An applicant may request verification of the presence, absence, or boundary of one or more wetlands or a fish and wildlife habitat conservation areas located on, or within 300 feet of, the subject property. This request may be submitted independent of a development activity application and is not subject to administrative appeal.
(a)
Submittal Requirements: Verification requests shall include all applicable critical area reports and supporting documentation, as required under Article VIII.
(b)
Validity: An approved critical area verification is valid for five (5) years from the date of issuance. Verification is limited to the delineation and/or boundary confirmation of critical areas. Wetland ratings and habitat assessments are not valid for the approved verification period.
(2)
Critical Areas Review and Verification Related to an Underlying Permit. For land disturbing activities and development activities within or adjacent to a critical area, a critical areas review shall be conducted to evaluate consistency with the standards and requirements of this Title. This review shall be performed in conjunction with an underlying permit application (such as a building permit, land disturbing activity permit, conditional use permit, etc.).
(a)
Submittal Requirements: The applicant shall submit applicable special reports and documentation, as defined in Article VIII, sufficient to evaluate compliance with all applicable critical areas regulations.
(b)
Review Process: The Department shall review the proposal in the context of the underlying permit application (e.g., Type I, II, or III) and issue a critical areas verification as part of the permit review. The verification shall confirm whether the proposed activity complies with the applicable provisions of this chapter and identify any required conditions of approval.
(c)
Integration with Permit Decision: The critical areas verification shall be incorporated into the decision on the underlying permit and shall not constitute a separate decision or permit action. Any objection to a critical areas verification shall be submitted and evaluated in accordance with the procedures applicable to the underlying permit application, as provided in POMC Chapter 20.22.
(Ord. 018-25, 11/18/2025)
(1)
All applicants are encouraged to meet with the department prior to submitting an application subject to this title. The purpose of this meeting is to discuss the city's zoning and applicable critical area requirements, to review any conceptual site plans prepared by the applicant and to identify potential impacts and mitigation measures. Such conference shall be for the convenience of the applicant and any recommendations shall not be binding on the applicant or the city.
(2)
Development may be prohibited in a proposed activity site based on criteria set forth in this chapter; the applicant should first determine whether this is the case before applying for permits from the department.
(3)
Application for development, reasonable use exceptions, or variances regulated by this chapter, or for review of special environmental reports, shall be made with the department by the property owner, lessee, contract purchaser, other person entitled to possession of the property, or by an authorized agent.
(4)
All site plan applications for development subject to this chapter shall include a site plan drawn to scale identifying locations of critical areas and any associated buffers, location of proposed structures and activities, including clearing and grading and general topographic information as required by the department. If the department determines that additional critical areas are found on the subject property, the applicant shall amend the site plan to identify the location of the critical area.
(5)
Critical areas review and application fees, established in the city's fee resolution, shall be paid at the time an application for a permit relating to a critical area or a special report review is filed.
(6)
Application Procedures for Regulated Uses and Activities. Any regulated use or activities containing a regulated critical area or its buffer, or within 300 feet of a critical area, shall provide the applicable special reports, as defined in Article VIII and required by the department, prior to any development authorization by the city. If an environmentally sensitive area is within 300 feet of the parcel but not on the parcel, every effort should be made to obtain the required information. These efforts may include, but are not limited to, visually assessing the feature from publicly accessible areas and utilizing available databases to obtain the required information to prepare any applicable special reports. The department may require additional reports or information to further identify potential impacts to any part of the environment which may include the following:
(a)
Erosion and sedimentation control measures and/or a stormwater or land disturbing activity permit as required by the city's stormwater management regulations.
(Ord. 018-25, 11/18/2025)
(1)
Mitigation Sequencing. Applicants shall demonstrate that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas. When alteration to a critical area or modification to its buffer is proposed, such alteration shall be avoided, minimized, or compensated in the following order of preference:
(a)
Avoiding the impact altogether by not taking a certain action or parts of an action;
(b)
Minimizing impacts by limiting the degree or magnitude of the action and its implementation by using appropriate technology or by taking affirmative steps, such as project redesign, relocation, or timing, to avoid or reduce impacts;
(c)
Rectifying the impact by repairing, rehabilitating, or restoring the affected environment to the conditions existing at the time of the initiation of the project;
(d)
Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action;
(e)
Compensating for the impact by replacing, enhancing, or providing substitute resources or environments; and
(f)
Monitoring the impact and the compensation project and taking appropriate corrective measures when necessary. Monitoring shall occur for a minimum of five years, or until the department determines that the mitigation project has achieved success. Certain types of habitat communities require additional time for establishment and may require monitoring for 10 or more years depending on the site-specific circumstances and the scope of the mitigation project.
(2)
Mitigation measures may be required to address potential impacts that are identified through the sequencing listed above. Mitigation shall be consistent with the requirements of this chapter.
(Ord. 018-25, 11/18/2025)
Unless otherwise provided in this chapter, if alteration to a critical area or its buffer is unavoidable, all adverse impacts resulting from a development proposal or alteration shall be mitigated using the best available science so as to result in no net loss of critical area functions and values, as provided below.
(1)
In making a determination as to whether such a requirement will be imposed, and if so, the degree to which it would be required, the director shall consider the following:
(a)
The long-term and short-term effects of the action and the reversible or irreversible nature of the impairment to or loss of the critical area;
(b)
The location, size, and type of and benefit provided by the original and altered critical area;
(c)
The effect the proposed work may have upon any remaining critical area or associated aquatic systems;
(d)
The cost and likely success of the compensation measures in relation to the magnitude of the proposed project;
(e)
The observed or predicted trend with regard to the gains or losses of the specific type of critical area; and
(f)
The extent to which the applicant has demonstrated a good faith effort to incorporate measures to minimize and avoid impacts within the project.
(2)
Mitigation projects shall not result in adverse impacts to adjacent property owners.
(3)
Mitigation shall be in kind and on site, when possible, and sufficient to maintain the functions and values of the critical area.
(4)
Mitigation shall not be implemented until after permit approval of the director and shall be in accordance with all reports and representations made therein.
(5)
Mitigation Sequencing. When an alteration to a critical area or its buffer is proposed, an applicant shall sufficiently demonstrate mitigation sequencing as defined in POMC § 20.162.026.
(6)
Mitigation for Lost or Affected Functions. Compensatory mitigation shall address the functions affected by the proposed project or alteration to achieve functional equivalency or improvement and shall provide similar critical area or buffer functions as those lost, except when:
(a)
The lost critical area or buffer provides minimal functions as determined by a site-specific functional assessment, and the proposed compensatory mitigation action(s) will provide equal or greater functions or will provide functions shown to be limiting within a watershed through the appropriate analysis; or
(b)
Out of kind replacement of critical area type or functions will best meet watershed goals identified by the city.
(7)
Type and Location of Mitigation. Unless it is demonstrated that a higher level of ecological functioning would result from an alternative approach or required under Article III of this chapter, compensatory mitigation for ecological functions shall be either in kind and on site, or in kind and within the same subbasin, basin, watershed, or service area of a certified mitigation bank. Mitigation actions shall be conducted within the same sub-drainage basin and on the site of the alteration except when all of the following apply:
(a)
There are no reasonable on-site or in subdrainage basin opportunities (e.g., on-site options would require elimination of high functioning upland habitat), or on-site and in subdrainage basin opportunities do not have a high likelihood of success based on a determination of the natural capacity of the site to compensate for impacts. Considerations should include: anticipated mitigation ratios for the identified critical area(s), buffer conditions and proposed widths, available water to maintain anticipated hydrogeomorphic classes of wetlands, or streams when restored, proposed flood storage capacity, potential to mitigate riparian fish and wildlife impacts (such as connectivity);
(b)
Off-site mitigation has a greater likelihood of providing equal or improved critical area functions than the impacted critical area; and
(c)
Off-site locations shall be in the same sub-drainage basin unless established-watershed goals for water quality, flood storage or conveyance, habitat, or other functions have been established by the city and strongly justify location of mitigation at another site.
(8)
Mitigation Banks.
(a)
Credits from a mitigation bank may be approved for use as compensation for unavoidable impacts to critical areas when:
(b)
Replacement ratios for projects using bank credits shall be consistent with replacement ratios specified in the bank's certification.
(c)
Credits from a certified mitigation bank may be used to compensate for impacts located within the service area specified in the bank's certification. In some cases, the service area of the bank may include portions of more than one drainage basin for specific habitat functions.
(9)
In-Lieu Fee. Credits from an approved in-lieu fee program may be used when all of the following apply:
(a)
The approval authority determines that the use of the program would provide environmentally appropriate compensation for the proposed impacts;
(b)
The proposed use of credits is consistent with the terms and conditions of the approved in-lieu fee program instrument;
(c)
Projects using in-lieu fee credits shall have debits associated with the proposed impacts calculated by the applicant's qualified specialist using the credit assessment method specified in the approved instrument of the in-lieu fee program; and
(d)
The impacts are located within the service area specified in the approved in-lieu fee program instrument.
(10)
Timing of Compensatory Mitigation. It is preferred that compensation projects will be completed prior to activities that will disturb the on-site critical area. If not completed prior to disturbance, compensatory mitigation shall be completed immediately following the disturbance and prior to the issuance of final certificate of occupancy. Construction of mitigation projects shall be timed to reduce impacts to existing fisheries, wildlife, and flora. The director may authorize a one-time temporary delay in completing construction or installation of the compensatory mitigation when the applicant provides a written explanation from a qualified professional as to the rationale for the delay (i.e., seasonal planting requirements, fisheries window).
(11)
Critical Area and Buffer Enhancement as Mitigation. Impacts to critical area or buffer functions may be mitigated by enhancement of existing significantly degraded critical area or buffer, but should be used in conjunction with restoration and/or creation where possible. Applicants proposing to enhance critical areas or their buffers must include in a report how the enhancement will increase the functions of the degraded critical area or buffer and how this increase will adequately mitigate for the loss of critical area and function at the impact site. An enhancement proposal must also show whether any existing critical area functions will be reduced by the enhancement action.
(Ord. 018-25, 11/18/2025)
(1)
Applications for any development proposal subject to the critical areas ordinance shall be reviewed by the director or designee for completeness and consistency with this chapter.
(2)
The director may withhold, condition, or deny land use, building, and/or development permits or activity approvals to ensure that the proposed action is consistent with this chapter. In evaluating a request for a development proposal regulated by this chapter, it shall be the responsibility of the director to determine the following:
(a)
The nature and type of critical area and the adequacy of any special reports required in applicable sections of this chapter;
(b)
Whether the development proposal is consistent with this chapter, by granting, denying, or conditioning projects;
(c)
Whether proposed alterations to critical areas are appropriate under the standards contained in this chapter, or whether it is necessary for the applicant to seek a variance or other exception; and
(d)
If the protection mechanisms and the mitigation and monitoring plans and bonding measures proposed by the applicant are sufficient to protect the public health, safety and welfare consistent with the purpose and regulations contained in this chapter, and if so, condition the permit or approval accordingly.
(3)
At every stage of the application process, the burden of demonstrating that any proposed development is consistent with this chapter is upon the applicant.
(Ord. 018-25, 11/18/2025)
Mitigation required pursuant to a development proposal must be completed prior to the City's granting of final approval of the development proposal. If the applicant demonstrates that seasonal requirements or other circumstances beyond its control prevent completion of the mitigation prior to final approval, the City may permit the applicant to post a performance bond or other security instrument in a form and amount deemed acceptable by the Director, which guarantees that all required mitigation measures will be completed no later than the time established by the department in accordance with this chapter.
(1)
All bonds and acceptable securities guaranteeing compliance with this chapter shall be set in the amount of 150 percent of the value of the project. The value of the project and subsequent bond shall be based on the engineer's estimate, subject to the City's approval, of the subject work.
(2)
Performance Bonds. Except for public agencies, applicants receiving a land use, development, or building permit or approval subject to the provisions of this chapter are required to post a cash performance bond or other acceptable security to guarantee compliance with this chapter prior to beginning any site work. The surety shall guarantee that work and materials used in construction are free from defects. All performance surety or bonds shall be reviewed and approved by the city attorney and recorded upon execution. The performance surety or bonds cannot be terminated or canceled without written approval. The director shall release the bond after documented proof that all structures and improvements have been shown to meet the requirements of this chapter and that a maintenance bond has been posted, if required.
(3)
Maintenance Bonds. Except for public agencies, an applicant shall be required to post a cash maintenance bond or other acceptable security guaranteeing that structures and improvements required by this chapter will perform satisfactorily for a minimum of three years after they have been constructed and approved. All bonds shall be on a form approved by the city attorney. Without written release, the bond cannot be canceled or terminated. The director shall release the bond after determination that the performance standards established for measuring the effectiveness and success of the project have been met.
(4)
Monitoring Bonds. For projects that require ongoing monitoring in accordance with this chapter, applicants shall provide a maintenance/monitoring bond or other security instrument in a form and amount determined sufficient by the Department to guarantee satisfactory workmanship, materials, and performance of structures and improvements allowed or required by this Title for a period up to ten (10) years, unless otherwise specified. The duration of maintenance/monitoring obligations, including financial guarantees, shall be established by the Director after consideration of the nature of the proposed mitigation and likelihood and expense of correcting mitigation failures.
(Ord. 018-25, 11/18/2025)
The director shall require an applicant to file a "Critical Area and Buffer Notice to Title" on a form approved by the City with the Kitsap County Auditor for all properties included in land use and development proposals subject to the provisions of this chapter and containing critical areas and/or their buffers. Such notice shall be a covenant that runs with the land in perpetuity and include identification of the boundaries of the critical areas and/or their buffers and any permanent conditions imposed by the City. The covenant shall be recorded prior to the issuance of any permit or at the time a short plat, Unit Lot Subdivision, or final plat is recorded. This notice shall serve as an official notice to subsequent landowners that the landowner is responsible for complying with existing conditions for development or use as established by this chapter and any city, state, or federal permits or other approvals, and shall accept sole responsibility for any risk associated with the land's identified critical area.
(Ord. 018-25, 11/18/2025)
(1)
An exemption means that an activity is fully exempt from critical areas review and not subject to the provisions of this chapter. An exemption from this chapter is not an endorsement to degrade a critical area; ignore risk from natural hazards; or otherwise limit the ability of the director to identify and abate such actions that may cause degradation to a critical area. All exempted activities shall use best management practices to the greatest possible extent to avoid potential impacts to critical areas. Any incidental damage to, or alteration of, a critical area or its buffer that is not a necessary and unavoidable outcome of the exempted activity shall be mitigated through restoration, rehabilitation and/or replacement at the responsible party's expense.
(2)
The proponent of the activity shall submit a written request for exemption to the director that describes the activity and states the exemption listed in this section that applies. The director shall review the request to verify that it complies with this chapter and approve or deny the exemption as a Type I administrative determination pursuant to Chapter 20.22 POMC.
(3)
The following land use, development, building activities, and associated uses shall be exempt:
(a)
Emergencies. Emergency activities are those activities necessary to prevent an immediate threat to public health, safety, or welfare, or that pose an immediate risk of damage to property and that require remedial or preventative action in a short time frame. The person or agency undertaking such action shall notify the city and the director shall determine if the action taken is within the scope of the emergency action allowed in this section. After the emergency, the person or agency shall fully restore and/or mitigate any impacts to the critical areas and buffers resulting from the action in accordance with an approved critical area report and mitigation plan.
(b)
Operation Maintenance or Repair. Operation maintenance or repair of existing structures not requiring permits or city approval, only if the activity does not further alter or increase the impact to critical areas or their buffers.
(c)
Passive Outdoor Activities. Recreation, education, and scientific research activities that do not degrade the critical area.
(d)
Forest Practices. Forest practices regulated and conducted in accordance with the provisions of Chapter 76.09 RCW and forest practices regulations, WAC Title 222. When a proposed forest activity has been classified as a Class IV forest practice for a conversion of forest land to another use, or when a forest activity requiring a forest practices application is located within the city's corporate limits, it shall be subject to the regulations and provisions of this chapter.
(e)
Existing Infrastructure Maintenance and Repair. Maintenance, operation, or replacement of legally existing roads, utilities, infrastructure, and associated structures; provided that reconstruction of any such structures does not extend outside of any designated easement or right- of-way. Any existing infrastructure maintenance or repair that expands outside of the existing improved area is subject to the mitigation sequencing requirements of this chapter.
(f)
Activities Within an Improved Right-of-Way. Construction of new utility facilities, improvements, or upgrades to existing utility facilities that take place within existing improved rights-of-way or existing impervious surfaces that do not increase the amount of pollution-generating impervious surface.
(g)
Activities Within an Improved City Park. Construction of new utility facilities, improvements, or upgrades to existing utility facilities that take place within existing parks that do not increase the amount of pollution-generating impervious surface or substantially developed areas.
(h)
Activities within substantially developed public school facilities and grounds.
(i)
Maintenance of an existing golf course provided that work is not performed to expand the course, driving range boundary, or substantially developed areas.
(j)
Normal maintenance, and reconstruction of legally permitted structures; provided, that reconstruction may not extend beyond existing footprint.
(k)
Noxious and invasive species removal and maintenance, provided the following apply:
(i)
Undertaken by manual methods, including handheld mechanical tools and integrated pest management practices;
(ii)
Vegetation removed appears on the current Washington State Noxious Weed Control Board list and must be handled and disposed of in accordance with the best management practices appropriate for that species and approved by the City;
(iii)
Noxious and invasive vegetation removal and maintenance is limited to wetland buffers and riparian management zones only;
(iv)
An approved supplemental planting plan shall be implemented upon completion of any vegetation removal and shall be monitored according to the monitoring requirements outlined in this Chapter.
(l)
Removal of hazardous tree(s) can be completed under the following conditions:
(i)
Requires a qualified arborist or forester to evaluate the tree(s) and submit a request for hazardous tree removal;
(ii)
The request includes removal methods to avoid and minimize damage to adjacent trees and other vegetation;
(iii)
The request adequately demonstrates no adverse impacts will occur to the critical area or associated buffer and/or riparian management zone.
(Ord. 018-25, 11/18/2025)
An exception means that an activity is subject to the provisions of this chapter and must undergo full critical areas review but may receive special consideration and relief from certain provisions of this chapter. Exceptions applications must address mitigation sequencing. The following are identified exceptions to the provisions of this chapter:
(1)
Public Agencies. Public agencies may make an application for exception to the director for construction of items such as new roads, utilities, infrastructure, buildings, and associated facilities. The application shall include critical area identification; a critical area report, including a mitigation plan if necessary; and any other related project documents such as environmental documents pursuant to SEPA, Chapter 43.21C RCW. The decision whether to grant the public agency utility exception from provisions of this chapter shall be processed as a Type II land use decision per Chapter 20.22 POMC pursuant to the following review criteria:
(a)
There is no other practical alternative to the proposed development with less impact on the critical areas; and
(b)
The application of this chapter would unreasonably restrict the ability to provide services to the public.
(c)
The application attempts to protect and mitigate impacts to the critical area functions and values consistent with best available science; and
(d)
The application is consistent with other applicable regulations and standards of this chapter.
(2)
Reasonable Use. An applicant may apply for a reasonable use exception if it can be demonstrated that application of this chapter would deny all reasonable use of the subject property. The application shall include critical areas identification; a critical areas report including a mitigation plan, if necessary; and any other related project documents such as environmental documents and special studies. The decision whether to grant the reasonable use exception shall be processed as a Type III land use decision per Chapter 20.22 POMC pursuant to the following review criteria:
(a)
The application of this chapter would deny all reasonable use of the property;
(b)
No other reasonable use of the property has less impact on the critical area;
(c)
Any alteration is the minimum necessary to allow for reasonable use of the property; and
(d)
The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant after the effective date of this chapter or its predecessor.
(Ord. 018-25, 11/18/2025)
(1)
Except when application of this chapter would deny all reasonable use of the property, an applicant who seeks an exception from the standards and requirements of the CAO shall pursue relief by means of a critical areas variance as provided for in this section.
(2)
A variance in the application of the regulations, standards, or use prohibitions of this chapter to a particular property may be granted by the director when it can be shown that the application meets all of the following criteria:
(a)
Because of special circumstances applicable to the subject property, including size, shape, or topography, the strict application of this chapter is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity; provided, however, the fact that those surrounding properties have been developed under regulations in force prior to the adoption of this chapter shall not be the sole basis for the granting of a variance;
(b)
The special circumstances referred to in subsection (2)(a) of this section are not the result of the actions of the current or previous owner(s);
(c)
The granting of the variance will not result in substantial detrimental impacts to the critical area, public welfare or injurious to the property or improvements in the vicinity and area in which the property is situated or contrary to the goals, policies and purpose of this chapter;
(d)
The granting of the variance is the minimum necessary to accommodate the permitted use;
(e)
No other practicable or reasonable alternative exists; and
(f)
Mitigation sequencing as defined in this chapter shall be demonstrated to show that all reasonable efforts have been examined with the intent to avoid and minimize impacts to critical areas.
(3)
A variance application under this chapter shall be processed as a Type III land use decision pursuant to Chapter 20.22 POMC.
(4)
Requests for variances shall include the requirements of Article VIII of this chapter regarding critical areas reports and habitat plans, as applicable to the proposed activity or use.
(5)
The department shall review variances based on the criteria and standards referenced in this chapter and the procedures in Subtitle II of this title, Permitting and Development Approval.
(6)
The applicant for a variance is responsible for complying with all state and federal regulations that may apply to the proposed activity, whether or not a variance for CAO requirements is granted by the city. State and federal permits will be required for certain activities in critical areas, including but not limited to in-water or wetland work. All other relevant city permit and regulatory requirements shall also be met for the proposed activity.
(Ord. 018-25, 11/18/2025)
Existing development within a property that contains a critical area which was lawfully constructed, approved or established prior to the effective date of the ordinance codified in this chapter, but which does not conform to present regulations or standards, may continue as follows:
(1)
Existing Structures. A legally established structure that has been made nonconforming due to the adoption of the ordinance codified in this chapter may be remodeled or reconstructed so long as all of the following provisions are met:
(a)
The property owner shall adequately demonstrate that the remodel or reconstruction shall not increase existing nonconforming uses and/or structures, and introduce any new, or expand existing, impacts to a critical area unless such impacts are fully mitigated as required under POMC § 20.162.026; and
(b)
All other standards and requirements contained in the Port Orchard Municipal Code are met.
(Ord. 018-25, 11/18/2025)
(1)
Enforcement – Violation.
(a)
No activities, uses, and development shall be conducted without a permit or written approval as required herein and without full compliance with this chapter. All activities, uses, or development not allowed or conditionally approved as provided in this chapter shall be prohibited.
(b)
Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be subject to enforcement consistent with the provisions of Chapter 2.64 POMC. Any activities, uses, and development carried out contrary to the provisions of this chapter shall constitute a public nuisance and may be enjoined as provided in the POMC or by the statutes of the state of Washington. The City may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter, consistent with Chapter 2.64 POMC.
(c)
The director shall have authority to enforce this chapter, issue delineation verifications, permits, and violation notices, and process violations through the use of administrative orders, notices of violation, civil infractions, stop work orders, and/or civil and criminal actions as provided for in Title 20 POMC and Chapter 2.64 POMC, provided the code enforcement officer is delegated authority for enforcement authority as provided for in Chapter 2.64 POMC.
(d)
In the event of violation, the city shall have the authority to order and establish a scope and timeline for restoration, enhancement, or creation measures to compensate for the destroyed or degraded critical area. Where noticed by the director or designee, all activities, uses or development shall remain stopped until notice authorizing work to commence is issued by the director. The director is authorized to require remediation necessary to remediate the violations, including but not limited to the preparation and submission of the applicable special reports, as defined in Article VIII and required by the department, at the expense of the owner or violator and reviewed and approved by the city. The plan shall be prepared by a qualified professional using the best available science and shall describe how the actions proposed meet the minimum requirements described in this chapter. The director may at his or her sole discretion and at the owner or violator's expense, seek a third-party review and expert advice in determining the adequacy of the plan. Inadequate plans shall be returned to the owner or violator for revision and resubmittal, at the owner or violator's expense. If work is not completed on the timeline established by the City, the city may take further enforcement actions as set out in this Title.
(e)
The enforcement provisions of this chapter apply to all activities exempted under this chapter. The director's determination that a violation exists is not limited by determinations made by other city agencies or public agencies.
(2)
Penalties.
(b)
In addition to or as an alternative to any other penalty provided in this chapter or by law, any person who violates any provision of this chapter shall be guilty of a misdemeanor pursuant to Chapter 2.64 POMC. Each day, or a portion thereof, during which a violation occurs shall constitute a separate violation.
(3)
Imminent and Substantial Dangers. Notwithstanding any provisions of these regulations, the director may take immediate action to prevent an imminent and substantial danger to the public health, welfare, safety or the environment by the violation of any provision of this chapter.
(4)
Other Legal or Equitable Relief. Notwithstanding the existence or use of any other remedy, the director may seek legal or equitable relief to enjoin any acts or practices or abate any conditions which constitute or will constitute a violation of the provisions of the critical areas ordinance.
(Ord. 018-25, 11/18/2025)
(1)
The City is not liable for any damage resulting from land use, building, or development activities within environmentally critical areas. Prior to issuance of any land use, building, and/or development permit or approval, the applicant may be required to enter into an agreement with the City, in a form acceptable to the city attorney, releasing and indemnifying the City from and for any damage or liability resulting from any development activity on the subject property that is related to the physical condition of the critical area. This agreement shall be recorded with the Kitsap County recorder's office at the applicant's expense and shall run with the property.
(2)
In addition to all other applicable requirements of the POMC, the City may also require the applicant to obtain insurance coverage for damage to City or private property and/or City liability related to any such development activity.
(Ord. 018-25, 11/18/2025)