22.80.050 Applicability, exemptions, exceptions, and allowed uses.
A. Applicability.
1. 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 or leases land within the city of Monroe. No person, company, agency, or applicant shall alter a critical area or buffer except as consistent with the purpose and requirements of this chapter.
2. The city of Monroe shall not approve any development proposal 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.
a. Development proposals include proposals that require any of the following:
i. Building permit;
ii. Grading permit;
iii. Shoreline substantial development permit;
iv. Shoreline conditional use permit;
v. Shoreline variance;
vi. Right-of-way disturbance permit;
vii. Conditional use permit;
viii. Variance permit;
ix. Subdivision;
x. Short subdivision;
xi. Binding site plan;
xii. Accessory dwelling unit; or
xiii. Any subsequently adopted permits or required approvals not expressly exempted from these regulations.
3. 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.
B. Exemptions. The following developments, activities, and associated uses shall be exempt from the provisions of this chapter, provided they are consistent with the provisions of other local, state, and federal laws and requirements:
1. Development and activities occurring in all isolated Category IV wetlands less than four thousand square feet that:
a. Are not associated with riparian areas or their buffers;
b. Are not associated with shorelines of the state or their associated buffers;
c. Are not part of a wetland mosaic;
d. Do not score six or more points for habitat function based on the 2014 update to the Washington State Wetland Rating System for Western Washington: 2014 Update (Ecology Publication No. 14-06-029, or as revised and approved by Ecology); and
e. Do not contain a priority habitat or a priority area for a priority species identified by the Washington Department of Fish and Wildlife, do not contain federally listed species or their critical habitat.
Development and activities occurring in wetlands less than one thousand square feet that meet the above criteria and do not contain federally listed species or their critical habitat are exempt from the buffer provisions contained in this chapter.
2. Emergency activities that threaten public health, safety, welfare, or risk of damage to private property and that require remedial or preventative action in a time frame too short to allow for compliance with the requirements of this chapter.
Emergency actions that create an impact to a critical area or its buffer shall use reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area and/or its buffer. After the emergency, the person or agency undertaking the action shall fully restore and/or mitigate any impacts to the critical area and buffers resulting from the emergency action in accordance with the approved critical area report and mitigation plan.
3. Single-family residential building permits are exempt from the requirements of this chapter when the development proposal involves:
a. Structural modification of, addition to or replacement of an existing residential structure or construction of a new residential structure where construction and associated disturbance are clearly equal to or greater than two hundred twenty-five feet from the nearest critical area; or
b. Structural modification of, addition to, or replacement of an existing residential structure lawfully established prior to the effective date of the ordinance codified in this title that does not meet the building setback or critical area buffer requirements may be approved only if the modification, addition, replacement or related activity is located away from the critical area and does not increase the existing footprint within the critical area buffer or building setback by more than one thousand square feet.
4. Utilities.
a. Operation, maintenance or repair of existing structures, infrastructure improvements, existing utilities, public or private roads, dikes, levees, or drainage systems, including routine vegetation management activities when performed in accordance with approved best management practices, if the activity does not increase risk to life or property as a result of the proposed operation, maintenance or repair.
b. Activities within the Improved Right-of-Way. 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 storm water, subject to the following:
i. Critical area and/or buffer widths shall be increased, where possible, equal to the width of the right-of-way improvement, including disturbed areas; and
ii. Retention and replanting of native vegetation shall occur wherever possible along the right-of-way improvement and resulting disturbance.
c. Minor Utility Projects. Utility projects which have minor or short-term impacts to critical areas, as determined by the zoning administrator in accordance with the criteria below, and which do not significantly impact the functions and values of a critical area(s); provided, that such projects are constructed with best management practices and additional restoration measures are provided. Minor activities shall not result in the transport of sediment or increased storm water runoff. Such allowed minor utility projects shall meet the following criteria:
i. There is no practical alternative to the proposed activity with less impacts on critical areas and all attempts have been made to first avoid impacts, minimize impacts, and lastly mitigate unavoidable impacts;
ii. The activity involves the placement of a utility pole, street sign, anchor, vault, or other small component of a utility facility;
iii. The activity involves disturbance of an area less than seventy-five square feet;
iv. The activity will not reduce the existing functions and values of the affected critical areas; and
v. Unavoidable impacts will be mitigated pursuant to an approved mitigation plan.
5. Activities and uses that do not require construction permits, in continuous existence since at least November 27, 1990, with no expansion of these activities within the critical area or associated buffer. For the purpose of this subsection, “continuous existence” includes cyclical operations normally associated with horticulture and agricultural activities.
C. Exceptions. The proponent of the activity shall submit a written request for exception from the zoning administrator that describes the proposed activity and exception that applies. Depending on the exemption requested, the zoning administrator (for administrative decisions) or hearing examiner (for reasonable use exceptions) shall review the exception requested to verify that it complies with this chapter and approve or deny the exception.
1. Public Agency or Utility Exception. If the application if this chapter would prohibit a development proposal by a public agency or public utility that is essential to its ability to provide service, the agency or utility may apply for an exception pursuant to this section. After holding a public hearing pursuant to Chapter 22.84 MMC, Permit Processing, the hearing examiner may approve the exception if the hearing examiner finds that:
a. There is no other feasible alternative to the proposed development with less impact on the critical areas, based on the demonstration by the applicant of the following factors:
i. The applicant has considered all possible construction techniques based on available technology that are feasible for the proposed project and eliminated any that would result in unreasonable risk of impact to the critical area; and
ii. The applicant has considered all available alignments within the range of potential alignments that meet the project purpose and for which operating rights are available.
b. The proposal minimizes and mitigates unavoidable impacts to critical areas and/or critical areas buffers. Any decision by the hearing examiner is final unless appealed.
2. Reasonable Use Exception. If the application of this chapter would deny all reasonable use of the property, development may be allowed which is consistent with the general purpose of this chapter and the public interest; provided, that the hearing examiner, after a public hearing, finds to the extent consistent with the constitutional rights of the applicant:
a. This chapter would otherwise deny all reasonable use of the property;
b. There is no other reasonable use consistent with the underlying zoning of the property that has less impact on the critical area and/or associated buffer;
c. The proposed development does not pose an unreasonable threat to the public health, safety or welfare on or off the property;
d. Any alteration is the minimal necessary to allow for reasonable use of the property;
e. 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
f. The applicant may only apply for a reasonable use exception under this subsection if the applicant has also applied for a variance pursuant to Chapter 22.66 MMC, Variances.
3. Innovative Development Design. An applicant may request approval of an innovative design that addresses buffer treatment in a manner that deviates from the standards for wetland, stream, fish and wildlife habitat conservation area buffers contained in this chapter under the following circumstances:
a. Where the applicant is proposing to redevelop a previously developed site on which existing lawfully established structures or impervious surface encroach into the buffers otherwise required by this chapter for wetlands, streams, or fish and wildlife habitat conservation areas, the zoning administrator may reduce the required buffer to the boundary or boundaries of the lawfully established existing structures or impervious surface on the project property; provided, that the zoning administrator finds that:
i. Within the reduced buffer area, the applicant will use innovative design to improve the condition of the buffer consistent with the standards for the applicable critical area(s) set forth in this chapter;
ii. In addition, the applicant will provide compensatory mitigation (on site, off site, or through mitigation banks) that provides functions and values equivalent to those that would have been provided had the project conformed to the standard buffer set forth in this chapter; and
iii. The innovative design will not be materially detrimental to the public health, safety or welfare or injurious to other properties or improvements located outside of the subject property.
b. The applicant shall prepare a critical areas study consistent with MMC 22.80.070 demonstrating the innovative development design complies with the standards in this subsection. All applicants for innovative designs are encouraged to consider measures prescribed in guidance documents, such as watershed conservation plans or other similar conservation plans, and low impact storm water management strategies that address wetlands, fish and wildlife habitat conservation areas or buffer protection consistent with this section.
c. Where an applicant proposes to reduce the standard wetland, stream, fish and wildlife habitat conservation area buffers set forth in this chapter using innovative development design under this section, the other provisions of this chapter, including provisions regarding buffer reductions or modifications, shall not apply.
D. Activities Allowed in Wetlands. The activities listed below are allowed in wetlands. These activities do not require submission of a critical area report, except where such activities result in a loss of the functions and values of a wetland or wetland buffer. These activities include:
1. Those activities and uses conducted pursuant to the Washington State Forest Practices Act and its rules and regulations, WAC 222-12-030, where state law specifically exempts local authority, except those developments requiring local approval for Class 4 – general forest practice permits (conversions) as defined in Chapter 76.09 RCW and Chapter 222-12 WAC.
2. Conservation or preservation of soil, water, vegetation, fish, shellfish, and/or other wildlife that does not entail changing the structure or functions of the existing wetland.
3. 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 of soil, planting of crops, chemical applications, or alteration of the wetland by changing existing topography, water conditions, or water sources.
4. Drilling for utilities/utility corridors under a wetland, with entrance/exit portals located completely outside of the wetland buffer; provided, that the drilling does not interrupt the groundwater connection to the wetland or percolation of surface water down through the soil column. Specific studies by a hydrologist are necessary to determine whether the groundwater connection to the wetland or percolation of surface water down through the soil column will be disturbed.
5. Enhancement of a wetland through the removal of nonnative invasive plant species. Removal of invasive plant species shall be restricted to hand removal unless permits from the appropriate regulatory agencies have been obtained for approved biological or chemical treatments. All removed plant material shall be taken away from the site and appropriately disposed of. Plants that appear on the Washington State Noxious Weed Control Board list of noxious weeds must be handled and disposed of according to a noxious weed control plan appropriate to that species. Revegetation with appropriate native species at natural densities is allowed in conjunction with removal of invasive plant species.
6. Educational and scientific research activities.
7. Normal and routine maintenance and repair of any existing public or private facilities within an existing right-of-way; provided, that the maintenance or repair does not expand the footprint of the facility or right-of-way.
8. Storm Water Management Facilities. A wetland or its buffer can be physically or hydrologically altered to meet the requirements of an LID, runoff treatment or flow control BMP if all of the following criteria are met:
a. The wetland is classified as a Category IV or a Category III wetland with a habitat score of three to five points; and
b. There will be “no net loss” of functions and values of the wetland; and
c. The wetland does not contain a breeding population of any native amphibian species; and
d. The hydrologic functions of the wetland can be improved as outlined in questions 3, 4, 5 of Chart 4 and questions 2, 3, 4 of Chart 5 in the “Guide for Selecting Mitigation Sites Using a Watershed Approach,” or the wetland is part of a priority restoration plan that achieves restoration goals identified in a shoreline master program or other local or regional watershed plan; and
e. The wetland lies in the natural routing of the runoff, and the discharge follows the natural routing; and
f. All regulations regarding storm water and wetland management are followed, including but not limited to local and state wetland and storm water codes, manuals, and permits; and
g. Modifications that alter the structure of a wetland or its soils will require permits. Existing functions and values that are lost would have to be compensated/replaced.
9. Sites Subject to Development Agreement. Any proposed fill or alteration of a wetland on a site subject to a development agreement may be approved through a conditional use permit. In addition to the conditional use criteria in Chapter 22.64 MMC, Conditional Use Permits, the hearing examiner shall consider the following criteria:
a. Mitigation is provided that locates and/or restores a compensatory wetland area on the same site, and the compensatory wetland area provides a higher level of wetland function than existed prior to the fill or alteration; and
b. Mitigation establishes buffers with dense, native vegetation to protect the wetland functions and values; and
c. Assessment is provided demonstrating hydrology will support the created or reestablished wetland; and
d. Alterations adhere to applicable city, state, and federal requirements and permitting including, but not limited to, U.S. Army Corps of Engineers and the Department of Ecology; and
e. A ten-year monitoring period is established, in accordance with MMC 22.80.080, Protection and mitigation measures, to ensure mitigation meets the design performance standards established in the approved mitigation plan. (Ord. 015/2019 § 3; Ord. 005/2019 § 10 (Exh. B))