A. 
The provisions of this chapter shall apply to all lands, all land uses and development activity, and all structures and facilities in the City whether or not a permit or authorization is required, and shall apply to every person, firm, partnership, corporation, group, governmental agency, or other entity that owns, leases, or administers land within the City. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purposes and requirements of this chapter.
B. 
The City shall not approve any permit or otherwise issue any authorization to alter the condition of any land, water, or vegetation, or to construct or alter any structure or improvement in, over, or on a critical area or associated buffer, without first assuring compliance with the requirements of this chapter. For development on lands regulated under the Kenmore Shoreline Master Program, compliance with this chapter includes compliance with the requirements of the Shoreline Master Program as well as with the requirements of this chapter.
C. 
Approval of a permit or development proposal pursuant to the provisions of this chapter does not discharge the obligation of the applicant to comply with the provisions of this chapter.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 12-0334 § 9; Ord. 19-0488 § 2 (Exh. 1))
A. 
The approximate location and extent of critical areas are shown on the City’s critical area maps. These maps shall be used only as a general guide for the assistance of property owners and other interested parties and may be updated as new critical areas are identified. They are for reference only and do not provide a final critical area designation. The type, extent, and exact boundaries of critical areas shall be determined on site through a field investigation by a qualified professional according to the procedures, definitions, and criteria established by this chapter. In the event of any conflict between the critical area location and designation shown on the City’s map and the criteria or standards of this chapter, the criteria and standards shall prevail.
B. 
The following is a list of some map sources that identify potential critical areas located in the City:
1. 
Wetlands and Streams.
a. 
City stream and wetland inventory;
b. 
Washington State Department of Fish and Wildlife Priority Habitats and Species online mapping system;
c. 
Washington State Department of Fish and Wildlife SalmonScape online mapping system; and
d. 
Washington State Department of Natural Resources water type maps.
2. 
Fish and Wildlife Habitats of Importance.
a. 
Washington State Department of Fish and Wildlife Priority Habitats and Species online mapping system;
b. 
Washington State Department of Natural Resources water type maps;
c. 
Washington State Department of Fish and Wildlife SalmonScape online mapping system;
d. 
Anadromous and resident salmonid distribution maps contained in the Habitat Limiting Factors Reports published by the Washington State Conservation Commission; and
e. 
Washington State Department of Natural Resources State natural area preserves and natural resource conservation area maps.
3. 
Geologically Hazardous Areas.
a. 
City geologically hazardous areas inventory;
b. 
King County’s Landslide Hazards Along King County River Corridors interactive, web-based map folio;
c. 
Washington State Department of Natural Resources Geologic Information Portal;
d. 
Washington State Department of Natural Resources liquefaction susceptibility map for King County; and
e. 
Washington State Department of Natural Resources slope stability maps.
4. 
Flood Hazard Areas.
a. 
City stream and wetland inventory; and
b. 
Federal Emergency Management Administration flood insurance rate maps and studies.
5. 
Critical Aquifer Recharge Areas and Groundwater.
a. 
City map of aquifer susceptibility.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 19-0488 § 2 (Exh. 1); Ord. 24-0624 § 5 (Exh. C))
A. 
Signs.
1. 
Temporary Markers. The outer perimeter of the critical area or buffer and the limits of those areas to be disturbed pursuant to an approved permit or authorization shall be marked in the field in such a way as to ensure that no unauthorized intrusion will occur, and verified by the city manager prior to the commencement of permitted activities. This temporary marking shall be maintained throughout construction, and shall not be removed until permanent signs, if required, are in place.
2. 
Permanent Signs. As a condition of any permit or authorization issued pursuant to this chapter, the city manager may require that the applicant install permanent signs along the boundary of a critical area or buffer.
Permanent signs shall be made of a metal face and attached to a metal post, or another material of equal durability. Signs must be posted at an interval of every 50 feet. If the length of the lot is 50 feet or less, one sign per lot is required. The sign must be maintained by the property owner in perpetuity. Signs must be placed in a visible location and remain visible throughout any future site development. The signs shall include the City’s logo and shall be worded as follows or with alternative language approved by the city manager based on specifications available from the City:
Environmentally Critical Area
Do Not Disturb
Contact the City of Kenmore
425-398-8900
Regarding Uses and Restriction
B. 
Fencing.
1. 
The city manager shall condition any permit or authorization issued pursuant to this chapter to require the applicant to install a permanent fence at the edge of the buffer associated with a stream, lake, wetland, or fish and wildlife habitat of importance, when fencing will prevent future impacts to ecological function. When the buffer is in a legally altered state, and is permitted to remain in that condition, the fencing may be placed at the upland edge of any properly functioning portion of the buffer. The city manager may also waive the requirement for a fence if the applicant can demonstrate that a fence would interfere with current legal public access or use.
2. 
A required permanent fence may be:
a. 
Untreated wood, split-rail; or
b. 
Dense vegetation using native material appropriate for the ecoregion. Vegetation shall be maintained at a minimum height of three feet, with thorny species incorporated to deter intrusion.
3. 
Fencing installed shall be designed so as to not interfere with species migration, including fish runs, and shall be constructed in a manner that minimizes habitat impacts.
4. 
Fencing is not required for single-family residential lots where subdivision is not proposed.
C. 
Maintenance. To ensure long-term maintenance of signs and fencing, the owner of the property or homeowners association of a subdivision shall file a maintenance agreement as directed by the City. This agreement shall be recorded and run with the land.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 19-0488 § 2 (Exh. 1); Ord. 24-0624 § 5 (Exh. C))
Exempt activities shall avoid impacts to critical areas. All exempted activities shall use reasonable methods to avoid potential impacts to critical areas. To be exempt from this chapter does not give permission to degrade a critical area or ignore risk from natural hazards. Any incidental damage to, or alteration of, a critical area shall be restored, rehabilitated, or replaced at the responsible party’s expense to prior condition or better.
A. 
Exempt Activities. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter; provided, that they are otherwise consistent with the provisions of other local, State, and federal laws and requirements:
1. 
Activities, including routine maintenance, involving artificial drainage features intentionally created from nonwetland sites, including but not limited to grass-lined swales, irrigation and drainage ditches, detention facilities, and landscape features;
2. 
Normal and routine maintenance, operation and reconstruction of existing public streets, utilities and associated rights-of-way and structures, provided reconstruction of any structures may not increase the impervious surface area or remove flood storage capacity;
3. 
Normal maintenance, repair, and remodeling of residential or commercial structures; provided, that there is no expansion of the structure and no increase to the existing nonconforming condition of the structure relative to the critical area or its buffer based on a current delineation;
4. 
Reconstruction of a structure that has been fully or partially destroyed by fire, explosion, or other unforeseen circumstances not caused by the owner subject to Chapter 18.100 KMC.
5. 
Site investigative work and studies necessary for preparing site development or modification plans, including soils tests, water quality studies, wildlife studies and similar tests and investigations, where such activities do not require construction of new roads or significant amounts of excavation; and provided, that any disturbance of the critical area shall be the minimum necessary to carry out the work or studies and disturbed areas shall be immediately restored;
6. 
Educational activities, scientific research, and passive outdoor recreational activities, including but not limited to interpretive field trips and birdwatching, that will not have a significant adverse effect on the critical area;
7. 
Emergency activities necessary to prevent an immediate threat to public health, safety, property or welfare; provided, that the critical areas shall be restored, rehabilitated, or replaced at the responsible party’s expense to prior condition or better within one year of the activity.
The restoration, rehabilitation, and/or replacement of the critical area is limited to that area impacted by the prevention effort; this section does not require the responsible party to restore, rehabilitate or replace critical areas damaged by natural disaster;
8. 
Minor activities not mentioned above and determined by the city manager to have minimal impacts to a critical area; and
9. 
Existing and ongoing agricultural activities, including farm pond maintenance; provided, that they implement applicable best management practices (BMPs) and minimize their effects on water quality, riparian ecology, salmonid populations, and wildlife habitat.
B. 
Operation, Maintenance or Repair. Operation, maintenance or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees or drainage systems, that do not require construction permits, if the activity does not further alter or increase the impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair.
C. 
Modification to Existing Structures.
1. 
Structural modification of, addition to, or replacement of single detached residences in existence before November 27, 1990, which do not meet the building setback or buffer requirements for wetlands, streams or landslide hazard areas if the modification, addition, replacement or related activity does not increase the existing footprint of the residence lying within the above-described buffer or building setback area by more than 500 square feet over that existing before November 27, 1990. No portion of the modification, addition or replacement may be located closer than the closest point of the residence to the critical area or, if the existing residence is in the critical area, no portion may extend farther into the critical area.
2. 
Structural modification of, addition to, or replacement of structures, except single detached residences in existence before November 27, 1990, which do not meet the building setback or buffer requirements for wetlands, streams or landslide hazard areas if modification, addition, replacement or related activity does not increase the existing footprint of the structure lying within the above-described building setback area, critical area or buffer.
D. 
Activities within the Improved Right-of-Way. Repair, replacement, modification, installation, or construction of utility facilities, lines, pipes, mains, equipment, or appurtenances, not including substations, when such facilities are located within the improved portion of the public right-of-way or a City-authorized private roadway, except those activities that alter a wetland or watercourse, such as culverts or bridges, or result in the transport of sediment or increased stormwater. Improved rights-of-way are those that are maintained out of necessity as a cleared, graded, paved, mowed or otherwise altered surface to allow for access, maintenance, or safety.
E. 
Select Vegetation Removal Activities. The following vegetation removal activities; provided, that no vegetation shall be removed from a critical area or its buffer without approval from the city manager:
1. 
The removal of vegetation listed in King County’s noxious weed list.
2. 
The removal of trees that are hazardous, posing a threat to public safety, or posing an imminent risk of damage to private property from critical areas and buffers; provided, that the city manager determines that the disturbance to the critical area is minimal. Topping or limbing the tree to eliminate the hazard should be considered before removal. When removal is necessary, place the hazard tree in the critical area or buffer to provide habitat as downed wood unless doing so would pose a safety risk or increase a geologic hazard. Replacement trees at a 3:1 ratio are required.
3. 
Measures to control a fire or halt the spread of disease or damaging insects consistent with the State Forest Practices Act, Chapter 76.09 RCW; provided, that the removed vegetation shall be replaced in kind or with similar native species within one year in accordance with an approved restoration plan.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 19-0488 § 2 (Exh. 1); Ord. 24-0624 § 5 (Exh. C))
A. 
If strict application of this chapter would prohibit the following:
1. 
Expansion of an existing facility operated by a public agency that is site-specific and nonlinear, including, but not limited to, a school facility, a fire or police facility, a governmental office, a recreational facility, a park, or a stormwater retention/detention facility; or
2. 
Expansion or extension of a linear public transportation facility, such as a street, highway or sidewalk; or
3. 
Expansion or extension of a utility;
then the public agency or utility may apply for relief from strict application of this chapter through an exception pursuant to this section, unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC.
B. 
Adjustment of critical area standards for new site-specific and nonlinear facilities to be operated by a public agency, such as schools, fire or police facilities, governmental offices, recreational facilities, parks or stormwater retention/detention facilities, shall be considered through the variance process (KMC § 18.55.170) if adjustments to buffers or building setbacks are required, or as a reasonable use exception if direct impacts to the critical area are proposed (KMC § 18.55.180).
C. 
Exception Request and Review Process. An application for a public agency or utility exception shall be made to the City and shall include a critical areas report, including mitigation plan, if necessary, and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (SEPA).
D. 
City Manager Review. The city manager shall review the application as a Type 2 land use decision under KMC § 19.25.020. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s demonstrated ability to comply with all of the public agency and utility exception criteria in subsection E of this section.
E. 
Public Agency or Utility Exception Review Criteria. The criteria for review and approval of a public agency or utility exception are as follows:
1. 
There is no other feasible location for the proposed development with less adverse impact on the critical area or buffer;
2. 
There is no other practical alternative to the proposed development with less impact on the critical area or buffer. Practical alternatives include but are not limited to:
a. 
Location outside of the critical area and its buffer;
b. 
Pursuit and exhaustion of other administrative code modifications or exceptions including but not limited to: front yard setback modifications in KMC § 18.30.190; modifications of minimum parking standards in Chapter 18.40 KMC; and allowances for nonconforming uses in Chapter 18.100 KMC;
3. 
The application of this chapter would unreasonably restrict the ability to provide public agency or utility services to the public;
4. 
The proposal does not pose an unreasonable threat to the public health, safety, or welfare;
5. 
The development proposal protects and mitigates impacts to the critical area functions and values consistent with best available science;
6. 
The development proposal achieves no net loss of critical area functions and values;
7. 
Mitigation sequencing through KMC § 18.55.210 has been demonstrated in the critical areas report, along with a demonstration of how the public agency or utility will provide mitigation using a watershed approach;
8. 
Development activities involve the least intrusion into and disruption of the critical area necessary while fulfilling a public purpose and need;
9. 
The proposal is consistent with a public agency or utility system plan, capital facilities plan, master plan, program, or policy that has been the subject of a public review process; and
10. 
The proposal is consistent with the general purpose and intent of the City’s comprehensive plan and adopted development regulations.
F. 
Approval Conditions. Conditions for approval of a public agency or utility exception shall include, at a minimum:
1. 
Conformance with the development standards and mitigation plans identified in the approved critical areas report; and
2. 
Appropriate best management practices, as described in this chapter and in other sciencebased documents, including but not limited to the Washington State Department of Commerce Critical Areas Guidebook, as amended, sources of science by State agencies with expertise, and standard conditions of approval published by federal agencies.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 12-0334 § 10; Ord. 19-0488 § 2 (Exh. 1))
A. 
Variances from the buffer width and building setback standards of this chapter may be authorized by the City in accordance with the procedures set forth in the City’s zoning code, unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC.
B. 
No variance is allowed in order to create additional lots.
C. 
The City may grant a variance; provided, that the applicant demonstrates that all of the following criteria are met:
1. 
Special Circumstances.
a. 
Private Development Proposals: There are special circumstances applicable to the subject property or to the intended use such as shape, topography, location or surroundings that do not apply generally to other properties and which support the granting of a variance from the buffer width or building setback requirements;
b. 
New Public Agency Development Proposals: There is no other practical alternative that allows the public agency to meet its public service obligations pursuant to applicable laws, rules, or adopted plans. Practical alternatives include but are not limited to:
(1) 
Location out of the critical area buffer;
(2) 
Pursuit and exhaustion of other code modifications or exceptions;
2. 
Necessary for Rights or Use.
a. 
Private Development Proposals: Such variance is necessary for the preservation and enjoyment of a substantial property right or use possessed by other similarly situated property but which because of special circumstances is denied to the property in question;
b. 
New Public Agency Development Proposals: Such variance is necessary for a public agency proposal to fulfill a duty to serve per federal, State, or local laws; or to provide an essential public facility; or to address a public need or demand for service consistent with an adopted capital facilities plan, system plan, or other master plan that has been subject to a public review process which commonly includes an evaluation of alternative sites;
3. 
The granting of such buffer width or building setback variance will not be materially detrimental to the public welfare or injurious to the property or improvement;
4. 
The granting of the buffer width or building setback variance will not significantly impact the subject critical area;
5. 
The decision to grant the variance includes the best available science and gives special consideration to conservation or protection measures necessary to preserve or enhance anadromous fish habitat; and
6. 
The granting of the variance is consistent with the general purpose and intent of the City’s comprehensive plan and adopted development regulations.
D. 
Conditions May Be Required. In granting any variance, the City may prescribe such conditions and safeguards as are necessary to secure adequate protection of critical areas from adverse impacts and to ensure conformity with this chapter.
E. 
City Manager Review. The city manager shall review the application. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the variance criteria in this section.
F. 
Time Limit.
1. 
Establishment of any development activity authorized pursuant to a variance shall occur within four years of the effective date of the decision for such variance. This period may be extended for one additional year by the city manager if the applicant has submitted the applications necessary to authorize the development activity and has provided written justification for the extension.
2. 
For the purpose of this subsection, “establishment” shall occur upon the issuance of all local permit(s) needed to begin the development activity; provided, that the improvements authorized by such permits are completed within the time frames of said permits.
G. 
Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 12-0334 § 11; Ord. 19-0488 § 2 (Exh. 1))
A. 
If the application of this chapter pertaining to critical areas will prevent the applicant from making any reasonable use of the subject property, the applicant may apply for an exception pursuant to this section unless the project is located on lands regulated under the Kenmore Shoreline Master Program. Projects on lands regulated under the Kenmore Shoreline Master Program are regulated under the procedures of Chapter 16.75 KMC. An application for a reasonable use exception must accompany a development permit application through the City’s review and decision process.
1. 
Criteria for Granting. The city manager shall grant a reasonable use allowance only when all of the following criteria are met:
a. 
Reasonable Use.
(1) 
Private Proposals: The applicant demonstrates that the application of this chapter will deny all reasonable use of the subject property otherwise allowed by applicable law;
(2) 
New Public Agency Development Proposals: The applicant demonstrates that the application of this chapter would interfere with a public agency proposal to fulfill a duty to serve per federal, State, or local laws; or to provide an essential public facility; or to address a public need or demand for service consistent with an adopted capital facilities plan, system plan, or other master plan that has been subject to an alternative site evaluation and public review process;
b. 
The development activities involve the least intrusion into and disruption of the critical area necessary to allow a reasonable use of the subject property by a private applicant or to achieve a public agency responsibility consistent with adopted laws, rules, and plans per subsection (A)(1)(a) of this section;
c. 
The development activities will not cause or result in damage to properties other than the subject property and will not endanger the public health, safety or welfare;
d. 
The applicant’s inability to make reasonable use of the subject property has not resulted from any of the following:
(1) 
Prior subdivision or segregation of the subject property, or changes to the boundaries of the subject property through a boundary line adjustment or otherwise; or
(2) 
Prior actions taken in violation of this chapter or any local, State, or federal law or regulation;
e. 
No other reasonable use of the property has less impact on the critical area;
f. 
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 the ordinance codified in this chapter, or its predecessor; and
g. 
Mitigation proposed by the applicant is sufficient to protect the functions and values of the critical area and public health, safety, and welfare concerns consistent with the goals, purposes, objectives, and requirements of this chapter.
2. 
Appeals. The applicant may appeal a decision of the city manager on a reasonable use allowance application to the hearing examiner pursuant to the provisions of the Kenmore Municipal Code.
B. 
Exception Request and Review Process. An application for a reasonable use exception shall be made to the City and shall include a critical areas report, including mitigation plan, if necessary; and any other related project documents, such as permit applications to other agencies, special studies, and environmental documents prepared pursuant to the State Environmental Policy Act (Chapter 19.35 KMC).
C. 
City Manager Review. The city manager shall review the application. The city manager shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the criteria in subsection A of this section.
D. 
Burden of Proof. 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.
E. 
Time Limit.
1. 
Establishment of any development activity authorized pursuant to a reasonable use exception shall occur within four years of the effective date of the decision for such reasonable use exception. This period may be extended for one additional year by the city manager if the applicant has submitted the applications necessary to authorize the development activity and has provided written justification for the extension.
2. 
For the purpose of this subsection, “establishment” shall occur upon the issuance of all local permit(s) needed to begin the development activity; provided, that the improvements authorized by such permits are completed within the time frames of said permits.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 12-0334 § 12; Ord. 19-0488 § 2 (Exh. 1))