Certain activities are exempt from the requirements of this chapter, while other activities which are regulated by this chapter may be granted specific exceptions or an administrative modification. This section lists the activities which are exempt from the regulations of this chapter, the exceptions which may be granted to the requirements of this chapter, and the administrative modifications which can be granted to the requirements of this chapter.
All activities or developments which are exempted, excepted, or granted modifications shall use reasonable methods to avoid and minimize potential impacts to critical areas, including use of any applicable best management practices. Such activities or developments which are exempted, excepted, or granted modifications shall not be exempt from other laws or permit requirements which may be applicable.
A. Exemptions. The following are exemptions to the provisions of this chapter; however, the exemptions listed in this section may not be exempted from other state or federal regulations or permit requirements. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the exempted activity shall be restored, rehabilitated, or replaced at the expense of the property owner.
1. Exempted Actions.
a. Emergencies that threaten the public health, safety and welfare, as verified by the city. 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.
b. Existing and ongoing agricultural activity occurring prior to and since January 3, 1990; provided, however, at such time as the property ceases to be used for agricultural activities and a development activity is proposed, the property shall be brought into compliance with the provisions of this chapter; and further provided, that existing ditches and drain tiles are not expanded in a manner that will drain wetlands in existence as of the date this chapter becomes effective. This exemption does not apply to filling or alteration of wetlands not in agricultural use as of January 3, 1990. The city encourages the use of best management practices or farm conservation plans to reduce impacts of agricultural practices on critical areas.
d. Normal and routine maintenance of agricultural ponds, livestock watering ponds and fish ponds; provided, that such activities shall not involve the conversion of any wetland or stream not used for such purposes prior to and since January 3, 1990.
e. Entirely artificial structures or wetlands intentionally constructed by humans from upland areas for purposes of stormwater drainage or water quality control, or ornamental landscape ponds, which are not part of a mitigation plan required by this chapter.
f. The following water, sewer, storm drainage, electric, natural gas, cable communications, and telephone utility-related activities, and maintenance of public streets and public park facilities when the activity does not expand or encroach further into the critical area, does not significantly impact a fish or wildlife habitat conservation area, and when undertaken pursuant to best management practices to minimize impacts to critical areas and their buffers:
(A) Natural gas, cable communications, telephone facilities, water and sewer lines, pipes, mains, equipment or appurtenances;
(B) Electric facilities, lines, equipment or appurtenances, not including substations, with an associated voltage of fifty-five thousand volts or less;
(3) Normal and routine maintenance or repair of public streets, state highways, and public park facilities, including vegetation management. Maintenance and repair does not include any modification that changes the character, scope, or size of the original structure, facility, or improved area, nor does it include construction of a maintenance road or the dumping of maintenance debris.
g. Forest practices on city-owned watershed property located in remote areas not contiguous to the Everett corporate boundaries, undertaken in accordance with the requirements of the State Department of Natural Resources.
h. Minimal soil disturbance for site investigative work necessary for land use application submittals such as surveys, soil logs, percolation tests and other related activities. Disturbed areas shall be immediately restored.
i. Conservation measures intended to preserve soil, water, vegetation, fish and other wildlife and their associated habitat that do not involve adversely impacting functions of the critical area.
k. Modification to existing structures. Legally constructed structures and improvements in existence on January 13, 1990, that do not meet the buffer requirements of this chapter may be remodeled, reconstructed, expanded or replaced; provided, that the new construction or related activity does not further alter or increase the impact to the critical area or buffer as a result of the proposed modification. For structures that are damaged or destroyed as a result of flood, fire or act of nature, restoration work shall be initiated by the applicant within one year of the date of damage or destruction, as evidenced by issuance of a valid building permit. The work authorized by such permit must be completed within the term of the permits issued by the city, which includes any written extensions. Expansions and additions shall not further encroach into a critical area or the portion of the required buffer between the critical area and existing improvements. Expansions within the critical area or buffer shall be limited to a maximum of one thousand square feet of impervious surface. To the extent feasible based on site-specific conditions, expansions shall result in no additional hydrologic impacts from stormwater runoff by using techniques such as low impact development. Remodeling, reconstruction, and expansions shall be subject to all other requirements of the zoning code.
B. Exceptions. All exceptions must be approved by the city through the review process listed in EMC Title 15 prior to the exception applying. The following are exceptions to the requirements of this chapter; however, the exceptions listed in this section still require compliance with the other requirements of this chapter, except as allowed by the exception. The exception may not be exempted from other state or federal regulations or permit requirements. Any incidental damage to, or alteration of, a critical area that is not a necessary outcome of the allowed development shall be restored, rehabilitated, or replaced at the expense of the property owner.
1. New accessory structures up to one hundred square feet, including storage buildings and garden sheds. Where structures, lawns and associated improvements have been legally established within a buffer area, new structures may be placed within the outer fifty percent of a legally altered critical area buffer. The one-hundred-square-foot limit shall include all associated improvements such as walkways or other impervious areas. Only one such exception per site or property is allowed.
2. New accessory structures between one hundred one square feet and two hundred square feet. Where structures, lawns and associated improvements have been legally established within a buffer area, new structures and additions to existing structures up to two hundred square feet may be permitted within the improved portion of the buffer as follows:
a. The two-hundred-square-foot limit shall include all associated improvements such as walkways or other impervious areas;
e. A critical area covenant is recorded;
h. Only one exception per site or property is allowed.
3. Wetland Exception. The following wetlands may be excepted from compliance with the wetland preservation and protection goals in this chapter. Mitigation must be provided for any approved impacts per EMC 19.37.120.
a. All isolated category IV wetlands less than four thousand square feet that meet all of the following criteria:
(1) Are not associated with riparian areas or their buffers;
(2) Are not associated with shorelines of the state or their associated buffers;
(3) Are not part of a wetland mosaic;
(4) Do not score five 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);
(5) 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.
b. 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.
4. The following actions may be required to provide a habitat assessment or biological assessment under EMC 19.37.190, Fish and wildlife habitat conservation areas. If the application of this chapter would prohibit or unreasonably restrict the ability to provide necessary utilities or infrastructure improvements, a development proposal by a public agency or a utility to construct utility facilities for the conveyance of water, sewage, storm drainage, electricity, natural gas, cable or telecommunications, or the construction of streets and highways, the agency or utility may request an exception. Such a request shall be reviewed using the review process described in EMC Title 15, Local Project Review Procedures. The city may approve, or approve with modifications, such a request only when the following findings are made:
a. The application of this chapter would prohibit or unreasonably restrict the ability to provide necessary utilities or infrastructure improvements or maintenance;
c. The proposal mitigates impacts on the critical areas;
e. The proposal is consistent with other applicable regulations and standards.
5. Docks. This section does not apply to areas under jurisdiction of the shoreline master program.
(1) There is no expansion in overwater coverage;
(2) There is no increase in the size and number of pilings;
(3) There is no use of toxic materials, such as creosote, CCA and other treated wood products;
(4) There is no new spanning of water between three and thirteen feet deep; and
(5) There is no new increase in the use of materials creating shade.
b. New docks are permitted subject to compliance with any WDFW HPA or U.S. Army Corps of Engineers permit conditions. Piers and docks shall be located, designed and constructed so as to cause minimum interference with public use of the water surface and shoreline; to mitigate the impacts to ecological function and critical areas; to avoid or minimize impacts to views; and to cause no undue harm to adjacent properties.
c. New docks shall be a maximum of four feet in width and a maximum walkway width of four feet. Overwater surfaces shall be constructed of unobstructed grating which provides at least fifty percent of open surface area. Piles, floats or other parts of the structure that come in direct contact with the water shall be approved by applicable federal and state agencies for use in water and shall not be treated or coated with biocides such as paint or pentachlorophenol. Use of arsenate compounds or creosote treated members is prohibited.
d. Only one dock shall be permitted for all lots in any short subdivision or subdivision that occurs after September 1, 2000. Such dock shall be shared between all lots in the short subdivision or subdivision.
e. Covered overwater moorage, either fixed or floating, shall be prohibited.
6. Reasonable Use Exception. This section does not apply to areas within jurisdiction of the shoreline master program.
a. Nothing in this chapter is intended to preclude reasonable economic use of property as set forth in this title. If the requirements of this chapter as applied to a specific lot would deny all reasonable economic use of the lot, development will be permitted if the applicant demonstrates all of the following to the satisfaction of the planning director:
(4) The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant in subdividing the property or adjusting a boundary line, thereby creating the undevelopable condition after the effective date of the ordinance codified in this chapter; and
b. Reasonable Use Decision Process. Whenever an applicant for a development proposal submits a reasonable use proposal to the planning director, the submittal shall include the following information which will be used to evaluate the criteria for reasonable use exception:
(5) An analysis of whether any other reasonable use with less impact on the critical areas and buffers is possible. This must also include an analysis of whether there is any practicable on-site alternative to the proposed development with less impact, including reduction in density, phasing of project implementation, change in timing of activities, revision of lot layout, and/or related site planning considerations that would allow a reasonable economic use with less adverse impacts to the critical areas and buffers. The phasing analysis shall address whether pre-project mitigation of impacts to buffers is feasible to reduce impacts on critical areas. The analysis shall also address stormwater impacts and mitigation required by the city’s stormwater management regulations;
(7) An analysis of the modifications needed to the standards of this chapter to accommodate the proposed development;
(8) A description of any modifications needed for the required front, side and rear setbacks, building height, and landscape widths to provide for a reasonable use while providing protection to the critical areas;
c. Reasonable Use Administrative Modification. If, in order to provide reasonable economic use, the standards of this title need to be modified, the planning director is authorized to grant an administrative modification to the standards of this title in accordance with the following:
(1) If a reasonable economic use of a lot cannot exist without modification of the required front, side and/or rear setbacks, building height, and/or landscape widths, the planning director is authorized to administratively modify such standards only to the extent necessary to provide for a reasonable economic use of the lot while providing greater protection to the critical areas than if the standard were met;
(2) If a reasonable economic use of a lot cannot exist without a reduction of the buffers of the critical areas, the planning director is authorized to administratively permit a reduction in the buffers only to the extent necessary to provide for a reasonable use of the lot. Where buffer reduction is permitted, enhancement/restoration of the buffer and/or critical area must be provided so that mitigation results in no net loss of critical area and buffer functions to the maximum extent feasible; or
(3) If a reasonable economic use of a lot cannot exist by means of either subsection (B)(6)(c)(1) or (2) of this section, then the planning director is authorized, using the review process described in EMC Title 15, Local Project Review Procedures, to administratively grant a transfer of development rights in addition to subsection (B)(6)(c)(1) or (2) of this section, or in lieu of them. For purposes of this section, “transfer of development rights (TDR)” means that the city severs the development rights from the fee interest and permits the owner of the restricted property to either transfer an authorized portion of the development rights in that property to another lot owned by the restricted party in accordance with the following provisions, or permits the owner of the restricted property to sell an authorized portion of the rights to owners of land who can use the authorized development rights in accordance with the following:
(A) Single-Family Zones. The number of dwelling units allowed under a reasonable use determination for any residential development may be transferred to a single-family zone; provided, that the number of dwelling units allowed to be transferred to the receiving site shall not exceed the lesser of:
(ii) The number of dwelling units that would be allowed on the receiving site with an assumed twenty percent increase in lot size. In approving a transfer of development rights to the receiving site in a single-family zone, the planning director shall have the authority to allow for a reduction of the minimum lot area allowed by the zone in which the receiving site is located by not more than twenty percent. The director shall have the authority to reduce the required lot width and depth by not more than twenty percent. All dwelling units on such lots shall be single-family dwellings.
(B) Multiple-Family Zones. The amount of development transferred to the receiving lot shall be limited only by all other requirements of this title applicable to the use zone in which the receiving lot is located (building height, off-street parking, setbacks, multiple-family development standards, etc.), excluding maximum permitted density.
(C) Commercial and Industrial Zones. The amount of development transferred to the receiving lot shall not exceed that which can be accommodated by allowing an increase of permitted height on the receiving lot of not more than fifteen feet. All other requirements of the use zone in which the receiving lot is located shall be applicable to the transferred development.
d. All other requirements of this chapter shall apply to the subject property, including but not limited to submittal of mitigation plans, monitoring reports, and assurance devices, installation of fencing and signs, and recording of protective covenants. (Ord. 3676-19 § 4, 2019; Ord. 3457-15 § 1, 2015; Ord. 2909-06 § 5, 2006.)