Ordinance 3931ORDINANCE NO.3931
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, ADOPTING AN INTERIM ZONING
ORDINANCE TO AMEND THE CRITICAL AREAS
ORDINANCE, SPECIFICALLY SECTIONS ECDC 23.40,210
AND 23.40.320, TO REPEAL THE DEFINITION OF
REASONABLE ECONOMIC USE AND REFERENCES
THERETO.
WHEREAS, the definition for "reasonable economic use" in the Environmentally Critical
Areas General Provisions Section of the Edmonds Community Development Code contains
language that is atypical when compared to the critical areas ordinances of many other
jurisdictions in the vicinity of Edmonds; and
WHEREAS, many jurisdictions do not define "reasonable economic use" at all,
preferring to rely upon guidance provided by state and federal law; and
WHEREAS, urgent action should be taken to correct the unnecessary confusion and
difficulty caused by the definition of "reasonable economic use" in the processing of reasonable
use variances; and
WHEREAS, the City of Edmonds may adopt an interim zoning ordinance for a period of
up to six months pursuant to RCW 36.70A.390, provided that the City Council holds a public
hearing on the interim ordinance within sixty days of adoption;
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. Section 23.40.210 of the Edmonds Community Development Code, entitled
"Variances," is hereby amended to read as follows (new text is shown in underline; deleted text
is shown in stfike thfo g ):
23.40.210 Variances.
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A. Variances from the standards of this title may be authorized through the process of hearing
examiner review in accordance with the procedures set forth in Chapter 20.85 ECDC only if an
applicant demonstrates that one or more of the following two conditions exist:
1. The application of this title would prohibit a development proposal by a public agency
or public utility. A public agency and utility exception may be granted as a variance if:
a. There is no other practical alternative to the proposed development with less
impact on the critical areas;
b. The application of this title would unreasonably restrict the ability to provide
utility services to the public;
c. The proposal does not pose an unreasonable threat to the public health, safety,
or welfare on or off the development proposal site;
d. The proposal attempts to protect and mitigate impacts to the critical area
functions and values consistent with the best available science; and
e. The proposal is consistent with other applicable regulations and standards.
2. The application of this title would deny all reasonable economic use (see the definition
of "reasonable eeenemie " in of the subject property. A reasonable use
exception may be authorized as a variance only if an applicant demonstrates that:
a. The application of this title would deny all reasonable economic use of a
property or subject parcel;
b. No other reasonable economic use of the property consistent with the
underlying zoning and the city comprehensive plan has less impact on the critical area;
c. The proposed impact to the critical area is the minimum necessary to allow for
reasonable economic use of the property;
d. The inability of the applicant to derive reasonable economic use of the property
is not the result of actions by the applicant after the effective date of the ordinance
codified in this title or its predecessor;
e. The proposal does not pose an unreasonable threat to the public health, safety,
or welfare on or off the development proposal site;
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f. The proposal minimizes net loss of critical area functions and values consistent
with the best available science; and
g. The proposal is consistent with other applicable regulations and standards.
B. Specific Variance Criteria. A variance may be granted if the applicant demonstrates that the
requested action conforms to all of the following specific criteria:
1. Special conditions and circumstances exist that are peculiar to the land, the lot, or
something inherent in the land, and that are not applicable to other lands in the same district;
2. The special conditions and circumstances do not result from the actions of the
applicant;
3. A literal interpretation of the provisions of this title would deprive the applicant of all
reasonable economic uses and privileges permitted to other properties in the vicinity and zone of
the subject property under the terms of this title, and the variance requested is the minimum
necessary to provide the applicant with such rights;
4. Granting the variance requested will not confer on the applicant any special privilege
that is denied by this title to other lands, structures, or buildings under similar circumstances;
5. The granting of the variance is consistent with the general purpose and intent of this
title, and will not further degrade the functions or values of the associated critical areas or
otherwise be materially detrimental to the public welfare or injurious to the property or
improvements in the vicinity of the subject property; and
6. The decision to grant the variance is based upon the best available science and gives
special consideration to conservation or protection measures necessary to preserve or enhance
anadromous fish habitat.
C. Hearing Examiner Review. The city hearing examiner shall, as a Type III -A decision (see
Chapter 20.01 ECDC), review variance applications and conduct a public hearing. The hearing
examiner shall approve, approve with conditions, or deny variance applications based on a
proposal's ability to comply with general and specific variance criteria provided in subsections
(A) and (B) of this section.
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D. Conditions May Be Required. The director retains the right to prescribe such conditions and
safeguards as are necessary to secure adequate protection of critical areas from adverse impacts,
and to ensure conformity with this title for variances granted through hearing examiner review.
E. Time Limit. The director shall prescribe a time limit within which the action for which the
variance is required shall be begun, completed, or both. Failure to begin or complete such action
within the established time limit shall void the variance, unless the applicant files an application
for an extension of time before the expiration. An application for an extension of time shall be
reviewed by the director as a Type II decision (see Chapter 20.01ECDC).
F. Burden of Proof. The burden of proof shall be on the applicant to bring forth evidence in
support of a variance application and upon which any decision has to be made on the application.
Section 2. Section 23.40.320 of the Edmonds Community Development Code, entitled
"Definitions pertaining to critical areas," is hereby amended to read as follows (new text is
shown in underline; deleted text is shown in strike t,,,.ettg,,):
23.40.320 Definitions pertaining to critical areas.
For the purposes of this chapter and the chapters on the five specific critical area types
(Chapters 23.50, 23.60,23.70, 23.80 and 23.90 ECDC) the following definitions shall apply:
"Adjacent" means those areas located within 200 feet of a development proposal or
subject parcel and those areas located within 800 feet of a documented bald eagle nest.
"Alteration" means any human -induced action which changes the existing condition of a
critical area or its buffer. Alterations include, but are not limited to: grading; filling; dredging;
draining; channelizing; cutting, pruning, limbing or topping, clearing, relocating or removing
vegetation; applying herbicides or pesticides or any hazardous or toxic substance; discharging
pollutants; paving, construction, application of gravel; modifying for surface water management
purposes; or any other human activity that changes the existing landforms, vegetation,
hydrology, wildlife or wildlife habitat value of critical areas.
"Best management practices" means a system of practices and management measures
that:
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1. Control soil loss and reduce water quality degradation caused by nutrients, animal
waste, and toxics;
2. Control the movement of sediment and erosion caused by land alteration activities;
3. Minimize adverse impacts to surface and ground water quality, flow, and circulation
patterns; and
4. Minimize adverse impacts to the chemical, physical, and biological characteristics of
critical areas.
"Buffer" means the designated area immediately next to and a part of a steep slope or
landslide hazard area and which protects slope stability, attenuation of surface water flows and
landslide hazards reasonably necessary to minimize risks to persons or property; or a designated
area immediately next to and part of a stream or wetland that is an integral part of the stream or
wetland ecosystem.
"Chapter" means those sections of this title sharing the same third and fourth digits.
"City" means the city of Edmonds.
"Class" or "wetland class" means descriptive categories of wetland vegetation
communities within the wetlands taxonomic classification system of the U.S. Fish and Wildlife
Service (Cowardin, et al., 1979).
"Clearing" means the act of cutting and/or removing vegetation. This definition shall
include grubbing vegetation and the use or application of herbicide.
"Compensation project" means an action(s) specifically designed to replace project -
induced critical area or buffer losses. Compensation project design elements may include, but are
not limited to: land acquisition procedures and detailed plans including functional value
assessments, detailed landscaping designs, construction drawings, and monitoring and
contingency plans.
"Compensatory mitigation" means replacing project -induced losses or impacts to a
critical area, and includes, but is not limited to, the following:
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1. "Restoration" means actions performed to reestablish wetland functional
characteristics and processes that have been lost by alterations, activities, or catastrophic events
within an area that no longer meets the definition of a wetland.
2. "Creation" means actions performed to intentionally establish a wetland at a site where
it did not formerly exist.
3. "Enhancement' means actions performed to improve the condition of existing
degraded wetlands so that the functions they provide are of a higher quality.
4. "Preservation" means actions taken to ensure the permanent protection of existing
high -quality wetlands.
"Creation" means a compensation project performed to intentionally establish a wetland
or stream at a site where one did not formerly exist.
"Critical areas" for the city of Edmonds means wetlands, critical aquifer recharge areas,
frequently flooded areas, geologically hazardous areas, and fish and wildlife habitat conservation
areas as defined in Chapters 23.50, 23.60, 23.70, 23.80 and 23.90 ECDC, respectively.
"Development proposal" means any activity relating to the use and/or development of
land requiring a permit or approval from the city, including, but not limited to: commercial or
residential building permit; binding site plan; conditional use permit; franchise; right-of-way
permit; grading and clearing permit; mixed use approval; planned residential development;
shoreline conditional use permit; shoreline substantial development permit; shoreline variance;
short subdivision; special use permit; subdivision; flood hazard permit; unclassified use permit;
utility and other use permit; variance; rezone; or any required permit or approval not expressly
exempted by this title.
"Director" means the city of Edmonds development services director or his/her designee.
"Division" means the planning division of the city of Edmonds development services
department.
"Enhancement" means an action taken to improve the condition and function of a critical
area. In the case of wetland or stream, the term includes a compensation project performed to
improve the conditions of an existing degraded wetland or stream to increase its functional value.
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"Erosion" means the process in which soil particles are mobilized and transported by
natural agents such as wind, rain, frost action, or stream flow.
Erosion Hazard Areas. See ECDC 23.80.020(A).
Fish and Wildlife Habitat Conservation Areas. See Chapter 23.90 ECDC.
"Floodplain" means the total area subject to inundation by a "100-year flood." "One -
hundred -year flood" means a flood having a one percent chance of being equaled or exceeded in
any given year.
Frequently Flooded Areas. See Chapter 23.70 ECDC.
"Functions" means the roles served by critical areas including, but not limited to: water
quality protection and enhancement; fish and wildlife habitat; food chain support; flood storage,
conveyance and attenuation; ground water recharge and discharge; erosion control; wave
attenuation. aesthetic value protection; and recreation. These roles are not listed in order of
priority.
Geologically Hazardous Areas. See Chapter 23.80 ECDC.
"Geologist" means a person licensed as a geologist, engineering geologist, or hydrologist
in the state of Washington who has earned a degree in geology from an accredited college or
university and has at least five years of experience as a practicing geologist or four years of
experience and at least two years of postgraduate study, research or teaching. The practical
experience shall include at least three years of work in applied geology and landslide evaluation
in close association with qualified, practicing geologists and geotechnical/civil engineers.
"Geotechnical engineer" means a practicing geotechnical/civil engineer licensed as a
professional civil engineer in the state of Washington who has at least four years of professional
employment as a geotechnical engineer in responsible charge including experience with
landslide evaluation.
"Grading" means any one or a combination of excavating, filling, or disturbance of that
portion of the soil profile which contains decaying organic matter.
"Habitats of local importance" include a seasonal range or habitat element with which a
given species has a primary association, and which, if altered, may reduce the likelihood that the
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species will maintain and reproduce over the long term. These might include areas of high
relative density or species richness, breeding habitat, winter range, and movement corridors.
These might also include habitats that are of limited availability or high vulnerability to
alteration, such as cliffs, shorelines, coastal beaches, mudflats, eel -grass beds, and wetlands. [See
ECDC 23.90.010(A)(4).]
Landslide Hazard Areas. [See ECDC 23.80.020(B).]
"Mitigation" means the use of any or all of the following actions, which are listed in
descending order of preference:
1. Avoiding the impact altogether by not taking a certain action or parts of an action;
2. 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;
3. Rectifying the impact to wetlands, critical aquifer recharge areas, frequently flooded
areas, and habitat conservation areas by repairing, rehabilitating, or restoring the affected
environment to the historical conditions or the conditions existing at the time of the initiation of
the project;
4. Minimizing or eliminating the hazard by restoring or stabilizing the hazard area
through engineered or other methods;
5. Reducing or eliminating the impact or hazard over time by preservation and
maintenance operations during the life of the action;
6. Compensating for the impact to wetlands, critical aquifer recharge areas, frequently
flooded areas, and habitat conservation areas by replacing, enhancing, or providing substitute
resources or environments; and
7. Monitoring the hazard or other required mitigation and taking remedial action when
necessary.
"Native vegetation" means vegetation comprised of plant species which are indigenous to
the Puget Sound region and which reasonably could have been expected to naturally occur on the
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site. "Native vegetation" does not include noxious weeds as defined by the state of Washington
or federal agencies.
"Noxious weeds" means any plant which, when established, is highly destructive,
competitive or difficult to control by cultural or chemical practices, as further listed in Chapter
16-750 WAC.
"Planning staff' means those employed in the planning division of the city of Edmonds
development services department.
"Qualified critical areas consultant" or "qualified professional" means a person who has
the qualifications specified below to conduct critical areas studies pursuant to this title, and to
make recommendations for critical areas mitigation. For areas of potential geologic instability,
the qualified critical areas consultant shall be a geologist or geotechnical engineer. For wetlands
and streams, the qualified critical areas consultant shall be a specialist in botany, fisheries,
wetland biology, and/or hydrology with a minimum of two years' field experience with wetlands
and/or streams in the Pacific Northwest. Requirements defining a qualified critical areas
consultant or qualified professional are contained within the chapter on each critical area type.
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"Redeveloped land(s)" means those lands on which existing structures are demolished in
their entirety to allow for new development. The director shall maintain discretion to determine
if the demolition of a majority of existing structures or portions thereof constitute the re-
development of a property or subject parcel.
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"Restoration" means the actions necessary to return a stream, wetland or other critical
area to a state in which its stability, functions and values approach its unaltered state as closely as
possible.
Seismic Hazard Areas. [See ECDC 23.80.020(C).]
"Species of local importance" means those species that are of local concern due to their
population status, their sensitivity to habitat manipulation, or that are game (hunted) species.
[See ECDC 23.90.010(A)(4).]
"Storm Water Management Manual" means the Storm Water Management Manual for
the Puget Sound Basin by the Washington State Department of Ecology (as included in
Chapter 18.30 ECDC).
"Streams" means any area where surface waters produce a defined channel or bed which
demonstrates clear evidence, such as the sorting of sediments, of the passage of water. The
channel or bed need not contain water year-round. This, definition is not meant to include
irrigation ditches, canals, storm or surface water runoff devices (drainage ditches) or other
entirely artificial watercourses unless they are used by salmonids or used to convey streams
naturally occurring prior to construction of such watercourse. Streams are further classified into
Categories S, F, Np and Ns and fishbearing or nonfishbearing 1, 2 and 3. [See ECDC
23.90.010(A)(1).]
"Title" means all chapters of the City of Edmonds Development Code beginning with the
digits 23.
"Undeveloped land(s)" means land(s) on which manmade structures or land
modifications (clearing, grading, etc.) do not exist. The director retains discretion to identify
undeveloped land(s) in those instances where historical modifications and structures may have
existed on a property or subject parcel in the past.
"Wetlands" means those areas that are inundated or saturated by ground or surface water
at a frequency and duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
Wetlands do not include those artificial wetlands intentionally created from nonwetland sites,
including, but not limited to, irrigation and drainage ditches, grass -lined swales, canals, detention
IN
facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or those wetlands
created after July 1, 1990, that were unintentionally created as a result of the construction of a
road, street or highway. However, wetlands may include those artificial wetlands intentionally
created from nonwetland areas created to mitigate conversion of wetlands if permitted by the city
(WAC 365-190-030(22)). Wetlands are further classified into Categories 1, 2, 3 and 4. [See
ECDC 23.50.010(B).]
"Wetland functions" means those natural processes performed by wetlands, such as
facilitating food chain production; providing habitat for nesting, rearing and resting sites for
aquatic, terrestrial or avian species; maintaining the availability and quality of water; acting as
recharge and/or discharge areas for ground water aquifers; and moderating surface water and
storm water flows.
Section 3. Sunset. This ordinance shall remain in effect for 180 days from the effective
date, after which point it shall have no further effect.
Section 4. Severabili1y. If any section, subsection, clause, sentence, or phrase of this
ordinance should be held invalid or unconstitutional, such decision shall not affect the validity of
the remaining portions of this ordinance.
Section 5. Effective Date. This ordinance, being an exercise of a power specifically
delegated to the City legislative body, is not subject to referendum and shall take effect five (5)
days after passage and publication of an approved summary thereof consisting of the title.
VED:
0. r ./ 1 1 JW 11
MAYOR DAVID O. EARLING
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ATTEST/AUTHENTICATED:
CITY CLERK, SANDRA S. CHASE
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
BY
JEFF TARADAY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO. 3931
06-28-2013
07-02-2013
07-07-2013
07-12-2013
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SUMMARY OF ORDINANCE NO.3931
of the City of Edmonds, Washington
On the 2nd day of July, 2013, the City Council of the City of Edmonds, passed
Ordinance No. 3931. A summary of the content of said ordinance, consisting of the title,
provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, ADOPTING AN INTERIM ZONING
ORDINANCE TO AMEND ECDC 23.40.210 AND
23.40.320 TO REPEAL THE DEFINITION OF
REASONABLE ECONOMIC USE.
The full text of this Ordinance will be mailed upon request.
DATED this 3`d day of July, 2013.
4840-7251-8158,v. 1
13
CITY CLERK, SANDRA S. CHASE
STATE OF WASHINGTON,
COUNTY OF SNOHOMISH
S, MARY OF ORDINAiN
t d drrxK r s WasFiktglpn
On the 2nd dathey a1fi July, 20t3, Ins City Ctxrncll a1 ate Ciiy of
Edr�r'alt4s'. yyaassedl Qrdlnarua No, 3331. A �ummasy pt the cantenl
of stud tadinsnco, c�nsis of the pl p pprey kilts as lG13ew
AN ORDlhtANCE THE �l7T OF EDMONDS,
OaDETAICAN 2oAN40!p NANCO AME ADOPTING
22&40,iD 233
TO REPEAL,. THE DEFINMON OF REASONABLE
ECONOMICUSE
The fu!f text of lhis Oreffnan o MAII be nmBed upon request.
DATED this 3rd day of July. 2013,
Published: July 7, 2013. CITY CLERK, SANDRA S. CHASE
Account Name: Cily of Edmonds
Affidavit of Publication
6%11
The undersigned, being first duly sworn on oath deposes and says that she is Principal Clerk of
THE HERALD, a daily newspaper printed and published in the City of Everett, County of
Snohomish, and State of Washington; that said newspaper is a newspaper of general
circulation in said County and State; that said newspaper has been approved as a legal
newspaper by order of the Superior Court of Snohomish County and that the notice
Summary of Ordinance No, 3931
a printed copy of which is hereunto attached, was published in said newspaper proper and not
in supplement form, in the regular and entire edition of said paper on the following days and
times, namely:
July 07, 2013
and that said newspaper was regularly distributed to its subscribers during a]I of said period.
'rincipal Ocrk
Subscribed and sworn to before me this 8th
HFAI
day July, 2013
r
�t NOTARY l
Notary Public in and for the State of Washington re iding t Eve{ft?''hurnis 27
County, 6`U
2-17-2k) 11A�
OF V+lA�`�
Account Number: 101416 Order Number: 0001826092