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HomeMy WebLinkAbout001 Staff ReportMLA22-00044 /ZON2022-00016 Brown Reasonable Economic Use Variance Request Page 1 of 20 JEFFERSON COUNTY DEPARTMENT OF COMMUNITY DEVELOPMENT 621 Sheridan Street | Port Townsend, WA 98368 360-379-4450 | email: dcd@co.jefferson.wa.us www.co.jefferson.wa.us/260/Community-Development DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT TO THE JEFFERSON COUNTY HEARING EXAMINER RE: Type III Reasonable ) PROPOSED FINDINGS, Economic Use ) CONCLUSIONS, AND Exception Application ) RECOMMENDATIONS ) File No: MLA22-00044 / ZON2022-00016 ) Applicants: Robert M. Brown III Trustee, ) Lisa M. Brown Trustee ) SUMMARY OF APPLICATION AND RECOMMENDATION Date of Application: The application was received on May 12, 2022, and was found substantially complete on November 28, 2022. Proposal: This proposal is a request for a Reasonable Economic Use Exception to deviate from the required Category III Wetland Buffer Width under Table 18.22.730(1)(a) (Standard Wetland Buffer Widths) of the Jefferson County Code (JCC). The Applicant is requesting to fill 285 square feet and impact 3,016 square feet of buffer in Wetland A to construct a driveway for future development of a single-family residence. To compensate for the wetland fill, the applicant seeks to create 570 square feet of new wetland and 5,600 square feet of buffer mitigation. A Wetland Mitigation Plan has been submitted that describes the mitigation proposed for the filling of the wetland. Site Address and Project Location: This project location is 413 Gybe Ho Road, Nordland, WA. The property is a 5.13-acre parcel located on Marrowstone. The subject site is parcel number 921092007, located in Section 9, Township 29 North, and Range 1 E. The legal description is S9 T29 R1E N1/2 SW SW NW located in Jefferson County, Washington. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 2 of 20 Location of parcel indicated by red arrow. Recommendation: Approval with Conditions Project planner: Jenny Murphy, Assistant Planner, Department of Community Development (DCD) BACKGROUND INFORMATION Property owners: Robert M. Brown III Trustee and Lisa M. Brown Trustee, Brown Family Revocable Living Trust. Address of record for property owners is 206 Garden Club Road, Nordland, WA 98358-9685 Applicants: Robert M Brown III Trustee Representative: Sally Ellis Site Conditions: The subject site is approximately 5.13 acres in size. The legal easement enters the southwest corner from Gybe Ho Road. A wetland delineation was conducted by Ecological Land Services identifying four wetlands on the property. A category III wetland (Wetland B) is located at the north end of the easement. If a driveway were to be constructed in the easement, it would significantly impact Wetland B. It was determined that there are four wetlands located on the parcel. The previous owner placed a driveway across the wetlands without permits and was required to remove the driveway and restore the wetland conditions. The wetland was cleared and excavated and is currently undergoing natural vegetation and is dominated by pioneer emergent species. Wetland A is not fully restored and the wetland mitigation plan has determined that utilizing the previously disturbed area will be the least impactful option for driveway construction. The project is minimizing impacts by crossing the wetland in MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 3 of 20 the previously constructed driveway. There is no significant vegetation coverage, and this is the narrowest portion of the wetland. The total area of impact to the wetland is 285 square feet and total impact to the wetland buffer is 3,016 square feet. Mitigation will include 570 square feet of wetland creation adjacent to Wetland A and 5,600 square feet of mitigation to the wetland buffer. Image from Ecological Land Services Wetland Mitigation Plan (Exhibit 5) Comprehensive Plan Designation: The Jefferson County Comprehensive Plan designates the subject parcels as Rural Residential with a density of one dwelling unit per five acres (RR 1:5). Shoreline Designation: The property is not located within shoreline jurisdiction of the Jefferson County Shoreline Master Program. Site Visit: Jefferson County DCD staff conducted a site visit on July 14, 2021 with the owner, applicants, consultants, and Department of Ecology staff, to verify the wetland delineation and wetland rating. A second site visit was conducted on January 11, 2023, which included the newly assigned DCD planner and the owner, Robert M. Brown III Trustee. Date of Application: A variance application was submitted to Jefferson County on May 12, 2022 (MLA22-00044 / ZON22-00016). The proposal was not reviewed within 28 days and was deemed complete as per JCC 18.40.110(4) on November 28, 2022. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 4 of 20 State Environmental Policy Act (SEPA): This proposal is subject to review under SEPA. Jefferson County DCD, as the lead agency, issued a Mitigated Determination of Non-significance (MDNS) on January 12, 2023. JEFFERSON COUNTY APPROVALS REQUIRED/APPLICABLE ORDINANCES The proposal was reviewed against all relevant requirements, specifically: • Jefferson County Comprehensive Plan, adopted December 10, 2018; and • Jefferson County Code (JCC), Title 18 – Unified Development Code, adopted December 18, 2000 and effective January 16, 2001, as amended, including Chapter 18.22 JCC (CAO). NOTICING REQUIREMENTS AND COMMENTS In accordance with the Type III permitting process and SEPA requirements, this application was noticed, as was the public hearing. Notice of Application: The application was noticed on December 21, 2022: • Published in The Port Townsend & Jefferson County Leader newspaper on December 21, 2022 (Exhibit 9); • Posted on the property on December 21, 2022 (Exhibit 9); • Sent to agencies and tribes on December 15, 2022 (Exhibit 9); and • Sent to all adjacent property owners within 300 feet on December 21, 2022 (Exhibit 9). Comments Received: DCD received the following responses to the notice of application with SEPA review. 1. Randy Marx with Jefferson County Environmental Health sent an email on December 16, 2022, to ensure coordination between this variance application and the previously submitted septic application (Exhibit 11). 2. Washington State Department of Ecology sent a letter regarding SEPA on January 4, 2023 (Exhibit 12) The letter advises that: • Solid Waste Management: All grading and filling of land must use clean fill only; all other material may be considered solid waste and a permit may be required from the Jefferson County Department of Environmental Health. All removal of debris must be disposed of at an approved site. Contact the jurisdictional health department of Department of Ecology for proper management of the materials. • Toxics Cleanup: There are no suspected or confirmed contaminated sites within ¼ mile of the project area. If any contamination is unexpectedly encountered, it should be reported to Ecology (per WAC 173-340-300) via the online ERTS at https://ecology.wa.gov/Footer/Report-anenvironmental-issue/statewide-issue-reporting-form. • Water Quality/Watershed Resources Unit: Erosion control measures must be in place prior to any clearing, grading, or construction. These control measures must be effective to prevent stormwater runoff from carrying soil and other pollutants into surface water or storm drains that lead to waters of the state. Sand, silt, clay particles, and soil will damage aquatic habitat and are considered to be pollutants. o Any discharge of sediment-laden runoff or other pollutants to waters of the state is in violation of Chapter 90.48 RCW, Water Pollution Control, and WAC 173-201A, Water Quality Standards for Surface Waters of the State of Washington, and is subject to enforcement action. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 5 of 20 o Construction Stormwater General Permit: The following construction activities require coverage under the Construction Stormwater General Permit:  Clearing, grading and/or excavation that results in the disturbance of one or more acres and discharges stormwater to surface waters of the State; and  Clearing, grading and/or excavation on sites smaller than one acre that are part of a larger common plan of development or sale, if the common plan of development or sale will ultimately disturb one acre or more and discharge stormwater to surface waters of the State.  This includes forest practices (including, but not limited to, class IV conversions) that are part of a construction activity that will result in the disturbance of one or more acres, and discharge to surface waters of the State; and  Any size construction activity discharging stormwater to waters of the State that Ecology: • Determines to be a significant contributor of pollutants to waters of the State of Washington. • Reasonably expects to cause a violation of any water quality standard. o If there are known soil/ground water contaminants present on-site, additional information (including, but not limited to: temporary erosion and sediment control plans; stormwater pollution prevention plan; list of known contaminants with concentrations and depths found; a site map depicting the sample location(s); and additional studies/reports regarding contaminant(s)) will be required to be submitted. For additional information on contaminated construction sites, please contact Evan Wood at evan.wood@ecy.wa.gov, or by phone at (360) 706-4599. o Additionally, sites that discharge to segments of waterbodies listed as impaired by the State of Washington under Section 303(d) of the Clean Water Act for turbidity, fine sediment, high pH, or phosphorous, or to waterbodies covered by a TMDL may need to meet additional sampling and record keeping requirements. See condition S8 of the Construction Stormwater General Permit for a description of these requirements. To see if your site discharges to a TMDL or 303(d)-listed waterbody, use Ecology’s Water Quality Atlas at: https://fortress.wa.gov/ecy/waterqualityatlas/StartPage.aspx o The applicant may apply online or obtain an application from Ecology's website at: http://www.ecy.wa.gov/programs/wq/stormwater/construction/-Application. Construction site operators must apply for a permit at least 60 days prior to discharging stormwater from construction activities and must submit it on or before the date of the first public notice. 3. Lizzie Carp with Department of Ecology emailed on January 4, 2023 advising that the proposal will require an Administrative Order from Ecology (Exhibit 9). Staff Comment: The following addresses all comments DCD received: MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 6 of 20 Randy Marx (Jefferson County Environmental Health). Comment noted. DCD will coordinate with Environmental Health. Department of Ecology/SEPA Comments. Conditions will be added to the permit to address SEPA comments from this agency. The SEPA conditions have been added to the end of this staff report. Department of Ecology/Lizzie Carp. Emailed to confirm that the Administrative order (Number 21171) received by Jefferson County Department of Community Development on May 26, 2022 is sufficient for this comment. This requirement has been satisfied per the email response dated January 11, 2023 (Exhibit 5). Notice of Public Hearing: The public hearing was noticed on February 1, 2023. • Published in The Port Townsend & Jefferson County Leader on February 1, 2023 (Exhibit 14); • Posted on the property on February 1, 2023 (Exhibit 14); • Sent to agencies and tribes on February 1, 2023 (Exhibit 14); and • Sent to adjacent property owners within 300 feet on February 1, 2023 (Exhibit 14). PROPOSED FINDINGS This section constitutes staff’s findings regarding the applicant’s consistency with the Jefferson County Comprehensive Plan and JCC. 1. JEFFERSON COUNTY COMPREHENSIVE PLAN: The proposed development is subject to the goals and policies of the Jefferson County Comprehensive Plan. The following policies apply to the proposal: a) Land Use Policy LU-P-1.2 (p. 1-36) states: “Acknowledge and protect the rights of private property owners in preparing land use, development, and environmental regulations, prohibit arbitrary and discriminatory actions, and preserve reasonable uses for regulated properties.” Staff Comment: The proposal is to vary from the Jefferson County Code standard wetland buffer width requirements for wetlands because the easement is fully encumbered by wetlands and wetland buffers. The standard wetland buffer width for Category III wetlands in Jefferson County is 110 feet. The applicant is requesting the filling of a 285 square foot portion of the wetland and impact to 3,016 of wetland buffer. The filling of the wetland is proposed in order to provide the private property owner with reasonable use of the property. b) Policy EN-P-6.5 (p. 5-18) states: “Continue to protect existing wetland area and functions, while encouraging wetland enhancement and restoration under the Critical Areas Ordinance (CAO). Staff Comment: The Jefferson County Code identifies Protection Standards (JCC 18.22.730) for wetlands that are to be implemented as part of a development proposal. This section of the JCC includes standard wetland buffer widths. To address the wetland fill proposed by MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 7 of 20 the applicants, a wetland mitigation plan has been prepared that identifies mitigating measures to be implemented to protect the existing on-site wetland functions and enhance the area outside of the 285 square foot wetland fill. (Exhibit 5) c) Policy LU-P-11.2 states: “Preserve the environmental functions of surface and ground water resources by retaining native vegetation and open spaces where feasible and by requiring mitigation measures for land use activities that may adversely impact surface and ground water.” Staff Comment: An engineered stormwater permit was submitted with the application (Exhibit 6). In addition, a stormwater permit will be required for the single-family residence building permit. 2. JEFFERSON COUNTY CODE: The proposed development is subject to the requirements of the JCC. The following code sections apply to the proposal: a. Critical Areas: Chapter 18.22 JCC. i. JCC 18.22 Article III Critical Aquifer Recharge Areas. The proposal is required to comply with the critical area regulations for a Susceptible Aquifer Recharge Area (SARPA), and a High-Risk Seawater Intrusion Protection Zone (SIPZ) Staff Comment: The parcel is located within a High-Risk SIPZ. The proposed project will not adversely affect the SIPZ. All stormwater disposal will be infiltrated in accordance with JCC 18.22.120(3). There are mandatory and voluntary actions for development within a High-Risk SIPZ. The voluntary measures include a condition of approval. The mandatory actions are not applicable because the applicant is required to connect to a public water supply with Jefferson County Public Utility District. The parcel is located within a SARPA critical aquifer recharge area (CARA). The proposed project will not adversely affect the CARA, all stormwater will infiltrate near the wetland buffer to allow regular recharge of the CARA after construction. ii. JCC 18.22 Article VII Wetlands: Staff Comment: Wetlands were not mapped on the Jefferson County GIS system, but a site visit confirmed that multiple wetlands were located onsite. A Wetland Delineation Report was prepared by Ecological Land Services, dated April 18, 2021 and submitted to Jefferson County Department of Community Development on May 12, 2022 (Exhibit 4). A site visit was conducted with the Jefferson County Wetland Biologist and the Washington State Department of Ecology, to verify the wetland locations and ratings on July 14, 2021. The required 110-foot buffer regulations would prevent reasonable use of the property and all attendees agreed that the least impactful option is to construct a driveway access through the narrowest portion of Wetland A. Development within the inner 75 percent of a wetland buffer must be approved as a Critical Areas Stewardship Plan, a reasonable economic use exception, or a variance (JCC 18.22.730(11)). The applicant submitted for a Type III variance. It should be noted that an engineered stormwater plan, prepared by Evergreen Engineering Services was submitted with this application. The plan shows two MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 8 of 20 culverts will be installed under the fill so that wetland hydrologic conditions will be maintained once the driveway is constructed. (Exhibit 6) iii. JCC 18.22.250 Variance Criteria: 1. Requests for relief from the dimensional or performance standards of this chapter shall require a critical areas variance which shall be processed as a Type III permit; provided: 2. The hearing examiner in accordance with Chapter 2.30 JCC shall have the authority to grant a variance from the requirements of this chapter when, in the opinion of the hearing examiner, all of the following criteria have been met: a. 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 surrounding properties or that make it impossible to redesign the project to preclude the need for a variance; Staff Comment: There are four wetlands located on the parcel, two requiring 40-foot buffers and two requiring 110-foot buffers. The parcel is landlocked and the legal easement is located along the western parcel boundary. The easement would require that the driveway be constructed through a wetland and wetland buffer. The applicant’s proposed driveway location would cross the narrowest portion of a previously degraded portion of the wetland. The applicant will mitigate the wetland and buffer fill with a newly created wetland and wetland buffer. b. The applicant has avoided impacts and provided mitigation to the maximum practical extent; Staff Comment: A site visit conducted by the Jefferson County Wetland Biologist and the Washington Department of Ecology on July 14, 2021. The driveway would cross Wetland A at the narrowest point and is in a location which was previously degraded by a former owner. A Wetland Mitigation Plan dated March 17, 2022 and submitted to Jefferson County DCD on May 12, 2022, details the creation of a mitigated wetland and wetland buffer. In addition, the plan includes five years of monitoring the mitigation. The proposed mitigation is consistent with mitigation requirements in JCC 18.22.740, including mitigation ratios specified in Table 18.22.740 (1). Recommended conditions of approval at the end of this staff report require the applicant to comply with the proposed mitigation plan. c. The critical area buffer reduction proposed through the variance is the minimum necessary to accommodate the permitted use; Staff Comment: This property is zoned for rural residential use and the proposed driveway is needed for future residential development. As noted above, the existing easement to the property is located along the west portion of the property. This easement would require crossing an undisturbed, category III wetland (Wetland B). The previous owner installed a driveway through Wetland A without permits and was MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 9 of 20 required to remove the access. The location has not been fully restored and is determined to be the least impactful option for accessing the property. This is the narrowest portion of the wetland. The driveway construction will require 285 feet of wetland fill and 3,016 feet of buffer fill. The least amount required to provide reasonable economic use. d. Granting the variance will not be materially detrimental to the public welfare or injurious to the property or improvement; Staff Comment: No negative effects to nearby property are expected as a result of issuing a Variance for construction of a driveway for future single-family home. The proposed activities are not expected to increase risk to the safety or health of people, property, or existing infrastructure on or off the site. The site plan shows two culverts under the driveway to maintain hydrology, thereby reducing the potential for off-site flooding. e. Granting the variance is necessary to ensure consistency with the Comprehensive Plan and any attendant public service obligations; Staff Comment: As noted in Finding 2 above, the proposal is consistent with the Comprehensive Plan. There are no known public service obligations that would be adversely affected. f. No other practicable or reasonable alternative exists. Staff Comment: There are four wetlands located on the parcel, two requiring 40-foot buffers and two requiring 110-foot buffers. The parcel is landlocked and the easement is located along the western parcel boundary. The easement requires that the driveway be constructed through a wetland and wetland buffer. The proposed driveway will cross the narrowest portion of a previously degraded wetland and will mitigate the wetland and buffer fill. The constraints of the parcel prevent reasonable economic use of the property unless a variance is granted. 3. In lieu of the criteria in subsections (2)(a) through (f) of this section, an applicant may pursue a critical area variance through proof of all of the following criteria: a. The applicant has avoided impacts and provided mitigation, in accordance with this chapter, to the maximum practical extent; b. The variance will not adversely impact receiving water quality or quantity; c. The variance will not adversely impact any functional attribute of the critical area; d. The variance will not jeopardize the continued existence of species listed by the federal government or the state as endangered, threatened, sensitive, or documented priority species or priority habitats; and e. The variance is based on the criteria and standards referenced in this chapter. [Ord. 5-20 § 2 (Appx. A)]. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 10 of 20 Staff Comment: All of the above are met: a. Mitigation consistent with the JCC 18.22.740 has been provided by the applicant. b. Two culverts are proposed under the fill so no water quality or quantity impacts are expected. c. Mitigation has been proposed so that is expected to compensate for impacts and no net loss of wetland functioning would be expected. d. No listed species are known to occur in the vicinity of wetlands or wetland buffers so no priority habitats or species would be expected to be affected if the proposal is approved. e. The proposal was reviewed against and is consistent with all applicable sections of the JCC. iv. JCC 18.22.260 Reasonable Economic Use Exceptions Criteria: 1. Permit applicants for a property so encumbered by critical areas or buffers that application of this chapter, including buffer averaging, buffer reduction, or other mechanism, would deny all reasonable economic use may seek approval pursuant to the reasonable economic use standards and procedures provided in this section. Staff Comment: There are four wetlands located on this 5.13-acre parcel. The majority of the east and west portions of the parcel are encumbered by wetlands and wetland buffers. For this reason, there is no way to access the property using other mechanisms such as buffer reductions and buffer averaging in JCC 18.22.710 (10) and (11), both of which can only be used when the reduction does not exceed 25 percent of the standard buffer width. The established legal easement extends north from Gybe Ho Road along the west line of the property directly to the south. The 40-foot-wide easement is partially within Wetland B, which is a Category III wetland requiring a standard 110-foot buffer. Constructing a driveway through this portion of the property would result in greater impacts to Wetland B and associated 110-foot buffer, and potentially Wetland C, than if the driveway was constructed in the proposed location. The applicants are proposing to develop in the narrowest area of Wetland A and is the least impactful option due to the previously disturbed and cleared area. The wetland fill has been limited to that necessary to obtain access to a buildable area. All of the parcels along Gybe Ho Road that currently have a residential structure range in size from five acres to 40 acres. The existing houses along Gybe Ho Road range from a one-story home of 854 square feet to a two-story home totaling 2,651 square feet. Therefore, a house consistence with what currently occurs in the area could be approved for this parcel. This parcel is zoned Rural Residential (RR) 1:5. Other land uses that may be allowed within this land use zoning district, as per Table 3-1 in Chapter 18.15.040, include the following: residential care facilities with up to five persons; home businesses; bed and breakfast residence (1 to 3 rooms); parks MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 11 of 20 and playfields; trails and paths for transportation, public or private; and agricultural aquacultural uses and activities (outside of the shoreline jurisdiction). None of these land uses would be expected to have a lesser impact on the wetland or the wetland buffer. 2. Nothing in this chapter is intended to preclude all reasonable economic use of property. If the application of this chapter would deny all reasonable economic use of the subject property, including agricultural use, use or development shall be allowed if it is consistent with the zoning code and the purposes of this chapter. Staff Comment: The applicant has applied for this Reasonable Economic Use Exception because access to the subject property is constrained by wetlands and wetland buffers. This allows for single family residential development (which is consistent with the zoning designation). The property owner does not have access to the property due to the site constraints which triggers this exception. 3. To qualify as a reasonable economic use, the technical administrator or hearing examiner, as appropriate, must find that the proposal is consistent with all of the following criteria: a. There is no portion of the site where the provisions of this chapter allow reasonable economic use, including agricultural use or continuation of legal nonconforming uses; Staff Comment: Due to adjacent property ownership and locations of wetlands and wetland buffers, the proposed access is the least environmentally impactful option allowing reasonable use of this parcel. b. There is no feasible alternative to the proposed activities that will provide reasonable economic use with less adverse impact on critical areas or buffers; Staff Comment: The application for a reasonable economic use exception will minimize impacts to the wetland and to the wetland buffer. The proposed access point will utilize a previously cleared area of the wetland and buffer, thereby minimizing the wetland and wetland buffer impacts. The wetland fill is limited to that necessary to construct a driveway for a future single-family residence (Exhibit 5). c. Activities will be located as far as possible from critical areas and the project employs all reasonable methods to avoid adverse effects on critical area functions and values, including maintaining existing vegetation, topography, and hydrology. Where both critical areas and buffer areas are located on a parcel, buffer areas shall be disturbed in preference to the critical area; MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 12 of 20 Staff Comment: The access point will cross the narrowest section of Wetland A, which minimizes vegetation removal and avoids removal of native trees and shrubs. The submitted site plan indicated that all future construction, with the exception of the driveway, will be outside of all wetlands and wetland buffers. Wetland hydraulic conditions will be maintained post-construction by installing two culverts under the fill. Creation of new wetland area as mitigation will result in an increase in the total wetland area, which will be planted with native species by the applicant. (Exhibit 5). d. The proposed activities will not result in adverse effects on endangered or threatened species as listed by the federal government or the state of Washington, or be inconsistent with an adopted recovery plan; Staff Comment: No impact to threatened or endangered species is expected. There is no adopted recovery plan for this area, e. Measures shall be taken to ensure the proposed activities will not cause degradation of groundwater or surface water quality, or adversely affect drinking water supply; Staff Comment: All development shall comply with the 2019 Stormwater Management Manual for Western Washington prepared by Washington Department of Ecology, and the applicant has submitted an engineered stormwater plan prepared by Evergreen Engineering Services. The applicant has proposed installation of orange construction fencing or similar fencing to demarcate the areas to remain undisturbed during construction activities. In addition, the applicant has proposed constructing the road during the summer months. Based on these proposals, this project is not expected to degrade ground water or surface water quality. Construction of an access road through the wetland is not expected to adversely affect drinking water supply. f. The proposed activities comply with all state, local and federal laws, including those related to erosion and sediment control, pollution control, floodplain restrictions, and on-site wastewater disposal; Staff Comment: This proposal was reviewed against all Jefferson County Code requirements including drainage control, stormwater management and reasonable economic use exceptions. The proposal has received approval from the Department of Ecology for wetland impacts (Exhibit 7). g. The proposed activities will not cause damage to other properties; MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 13 of 20 Staff Comment: No negative effects to nearby property is expected as a result of issuing a Residential Economic Use Exception for construction of a driveway for future single-family home. h. The proposed activities will not increase risk to the health or safety of people on or off the site; Staff Comment: The proposed activities are not expected to increase risk to the safety or health of people on or off site. The site plan shows two culverts under the driveway to maintain hydrology, thereby reducing the potential for off-site flooding. i. The inability to derive reasonable economic use of the property is not the result of segregating or dividing the property or creating the condition of lack of use; Staff Comment: This parcel meets current zoning and is not a result of prior subdivision. j. The project includes mitigation for unavoidable critical area and buffer impacts in accordance with the mitigation requirements of this chapter. [Ord. 5-20 § 2 (Appx. A)]. Staff Comment: The proposed mitigation plan compensates for the permanent impacts to the wetland and buffer, including installing native scrub-shrub vegetation and maintaining a seasonally flooded hydroperiod with two to six inches of standing water during the growing season in the new wetland area that matches the hydroperiod of the existing wetland. The plan will install additional trees around existing vegetation to continue the restoration plantings, permanently demarcate the wetland buffer boundary and provide long-term legally binding protection. The mitigation site will be monitored for a five-year period following project construction. The mitigation area will be monitored once during the growing season, preferable in the same two-week period each year to compare similar data. Hydrologic monitoring will be conducted during the early growing season of each year to ensure that the wetland hydrology matches the existing wetland hydrology. Monitoring will begin at the end of the first summer following full implementation of the mitigation plan. A recommended condition was added at the end of this staff report to require the implementation of the mitigation proposal in the Wetland Mitigation Plan submitted on May 12, 2022. (Exhibit 5) b. JCC 18.30.060 Grading and excavation standards: (1) General Regulations MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 14 of 20 a. All grading and clearing activities shall be conducted so as to minimize potential adverse effects of these activities on forested lands, surface water quality and quantity, groundwater recharge, and fish and wildlife habitat, adjacent properties and downstream drainage channels. Staff Comment: The stormwater application and engineered stormwater report submitted on May 12, 2022 specify a limited clearing area of 3,300 square feet. Minimal clearing of grass, brush and sod is required to accommodate the proposed driveway. The majority of the parcel will not be cleared or graded. Silt barriers will be utilized and soils will be stabilized. (2) Drainage and Erosion Control. All grading activities shall be accomplished as follows: a. Design and maintain adequate buffers of undisturbed native vegetation to minimize off-site impacts of surface water runoff, erosion, and sedimentation. b. Design and construct all graded surfaces that are to be revegetated so that the graded surfaces will hold topsoil and to minimize surface runoff, erosion, and sedimentation. c. Selectively salvage the upper six to 12 inches of topsoil, stockpile it, and re-spread over all disturbed areas to be revegetated. Excess excavated material, if not retained on-site, must be disposed of at a permitted site approved by the administrator. d. Any area cleared or graded and not covered with gravel or an impervious surface shall be seeded immediately on completion of the project. If erosion is probable, areas with exposed soil shall be protected by temporary means during and following construction until seeding is established. All disturbances should at least be revegetated with grasses and forbs; including shrubs and trees as appropriate in the revegetation effort. Use of plant species native to the county is encouraged. e. Natural vegetation shall be retained to the maximum extent possible in construction and operation of any use. All development shall ensure that soil erosion and sedimentation of drainage ways will be controlled to prevent damage to adjoining property and downstream drainage channels and receiving waters. f. Surface drainage shall not be directed to or discharged into county roads or ditches within county rights-of-way unless approved by the county engineer. g. A drainage analysis shall be prepared if required by JCC 18.30.070. Drainage controls may be required to regulate volume, peak flow and velocities of runoff water and to control pollutants, erosion, and sedimentation if it is probable that damage could occur downstream to property or to water quality. Such controls may include landscaping or re-establishing native vegetation, ponds, catch basins, and other control structures. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 15 of 20 h. For effective long-term weed control, it is suggested that the landowner coordinate with the county weed control board to eradicate nuisance species. Staff Comment: The engineered stormwater plan requires that vegetated surfaces will be preserved to treat and disperse stormwater. Per the stormwater plan, soil will be removed and held in a temporary stockpile until it can be re-spread and used to support vegetation. Bare areas will be revegetated with ground cover and grasses. Culverts will be installed beneath the proposed driveway and will discharge onto dispersion pads consisting on quarry spalls. This will provide a downhill flow path to attenuate and treat flowing water. Construction will occur during the dry season. The engineered stormwater plan requires the use of an established construction access and de-mudding area. (3) Best Management Practices (BMPs). BMPs from the currently adopted Stormwater Management Manual for Western Washington (SMM) (see JCC 18.30.070) or as specified by the county engineer shall be employed in the control of erosion and sediment during construction, to permanently stabilize soil exposed during construction, and in the design and operation of stormwater and drainage control systems. Staff Comment: The stormwater application and engineered stormwater plan selected appropriate BMPs from the 2019 Stormwater Management Manual for Western Washington, the currently adopted edition in Jefferson County. Specifically, the project will use BMP C101 Preserving Natural Vegetation, BMP C102 Buffer Zones, BMP C105 Stabilized Construction Access, BMP C124 Sodding, and BMP C233 Silt Fence. (4) Critical Areas. All clearing and grading activities that will adversely affect critical areas shall be subject to the regulations of Chapter 18.22 JCC, and JCC 18.30.070, without limitation to thresholds found herein: a. Critical Aquifer Recharge Areas. Standards governing development activities in these areas are found in Article III of Chapter 18.22 JCC. c. Geologically Hazardous Areas. Standards governing development activities in these areas are found in Article V of Chapter 18.22 JCC. Staff Comment: The requirements of Article III and Article V of Chapter 18.22 JCC are addressed in Staff Finding 2 of this staff report. (5) Grading. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 16 of 20 a. Project or building permits which involve grading of 500 or more cubic yards are subject to environmental review under the State Environmental Policy Act (SEPA) (see Article X of Chapter 18.40 JCC) unless the grading is SEPA-exempt under WAC 197-11- 800. b. All grading of 500 cubic yards or more shall be subject to a stormwater management permit, as specified in JCC 18.30.070(5) Staff Comment: SEPA review for clearing and grading was included in this proposal. A final threshold Determination of Mitigated Non-significance (MDNS) was issued on January 12, 2023. No appeals were received within the 14-day appeal period. Clearing and grading were addressed in the engineered stormwater report. c. JCC 18.30.070 Stormwater Management Standards: (4) New Development Minimum Requirements. a. New development that includes: (i) the creation or addition of 5,000 or more square feet of impervious surface; or (ii) converts three-quarters acre, or more, of native vegetation to lawn or landscaped areas; or (iii) converts 2.5 acres, or more, of native vegetation to pasture shall comply with Minimum Requirements Nos. 1 through 10 as contained in the SMM. Staff Comment: All Minimum Requirements are applicable to this proposal. They are addressed in the Supplemental Application Stormwater Management Permit and page six of the stormwater application submitted by the applicants on May 12, 2022. The application includes the required stormwater site plan, a stormwater pollution prevention plan, source control of pollution, preservation of natural drainage systems, on-site stormwater management, and slope protection. b. Redevelopment that includes: (i) new, replaced, or total of new plus replaced impervious surface of 2,000 square feet or more; or (ii) 7,000 square feet or more of land-disturbing activity shall comply with Minimum Requirements Nos. 1 through 5 as contained in the SMM. Staff Comment: This project is development, not redevelopment. JCC 18.30.070(4)(d) is not applicable. c. Stormwater Site Plan. Stormwater site plans shall be developed to the standards of Volume I, Chapter 3 of the SMM, and include: i. Project overview; ii. Plot plan, including the elements of subsection (3)(b) of this section; iii. Locations of structures and other impervious surfaces; MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 17 of 20 iv. Locations of stormwater runoff treatment and flow control facilities; v. Road rights-of-way and easements; vi. Preliminary conditions summary; vii. Analysis of off-site water quality impacts (including groundwater) resulting from the project, and mitigation measures; viii. Analysis and design of proposed stormwater runoff control facilities, including flow control, treatment, and source control BMPs (cf. Volume I, Section I-4 of the SMM, which provides a list of and selection process for BMPs); ix. Construction stormwater pollution prevention plan; x. Special reports and studies; xi. Stormwater and drainage system maintenance specifications. Staff Comment: The engineered stormwater plan submitted on May 12, 2022 includes items i.-vi. and viii.-xi. Item vii is not included because stormwater will be managed within the 5.13- acre parcel and not dispersed to other parcels. d. Commercial and industrial developments, subdivisions or other projects requiring stormwater management facilities including collection, conveyance, treatment, detention, and infiltration facilities shall enter into a stormwater management facility maintenance agreement with Jefferson County to operate and maintain the facilities as per the approved plans. The public works department will prepare the agreement after approval of the project stormwater site plan and submit it to the applicant. The applicant shall file the agreement with the Jefferson County auditor prior to final project approval by Jefferson County. Staff Comment: This proposal is for a residential development. JCC 18.30.070(4)(f) does not apply to this project. (5) Stormwater Management Permit and Plan Review. All grading of 500 cubic yards or more (not exempted under JCC 18.30.060(5)(b)), land-disturbing activities of 7,000 square feet or more, or creation of 2,000 square feet or more of impervious surface shall be subject to a stormwater management permit. Prior to issuance of a stormwater management permit, the applicant shall submit the required stormwater management plans to the administrator for review and approval. The administrator shall issue the stormwater management permit consistent with a Type I permit process (as specified in Chapter 18.40 JCC) only upon a finding that the proposed use or activity meets all applicable requirements of JCC 18.30.060 and this section, and any other applicable requirements of this code. Staff Comment: The proposal includes a stormwater management permit application. The stormwater application and engineered MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 18 of 20 stormwater management plan meets all applicable requirements of JCC 18.30.060 and JCC 18.30.070. Per this application, drainage and erosion will be controlled via dispersion systems leading to dispersion pads and vegetated flow paths. The site will be restored using post-construction soil quality and depth to amend land not covered by impervious surfaces. In-stream and out-stream flow of water will not be obstructed. In addition, the engineered stormwater plan must be followed as a condition of approval. STAFF RECCOMENDED REASONABLE ECONOMIC USE EXCEPTIONCONDITIONS 1. This APPROVAL is for a Type III Reasonable Economic Use Exception to fill a 285 square foot portion of a wetland and 3,016 square foot portion of a wetland buffer only. Any future permits on this site are subject to review for consistency with applicable codes and ordinances and does not preclude review and conditions which may be placed on future permits. 2. The applicant shall install the silt fencing along the edge of the construction area prior to beginning any clearing, grading, or other land-disturbing activities. The fencing shall be installed shown on sheet 4 of the engineered Stormwater Management Plan received on May 12, 2022. The project biologist shall be onsite during fencing installation to ensure proper placement. 3. The applicant shall contact DCD staff planner for a site inspection to confirm silt fence installation prior to any further land disturbing activity. 4. The project shall adhere to the Best Management Practices (BMPs) to control stormwater, erosion and sediment during construction. BMPs shall address permanent measures to stabilize soil exposed during construction, and in the design and operation of stormwater and drainage control systems. 5. Prior to any land disturbing activity, the applicant must comply with other local, state, and federal ordinances, regulations, or statutes applicable to the proposed development. 6. To comply with the engineered stormwater plan and the biological report, the construction of the proposed access shall occur during the dry season, when water is absent in the wetland. 7. The applicant shall comply with all mitigation requirements, as specified in the Wetland Mitigation Plan prepared by Evergreen Engineering Services, received on May 12, 2022.. 8. The applicant shall comply with the engineered Stormwater Management Plan dated received May 12, 2022 prepared by Everett A. Sorensen P.E. with Evergreen Engineering Services. 9. All excavated sod and soils shall be stockpiled outside of wetland buffers. 10. To comply with the mitigation plan, the project biologist shall be onsite to oversee plant installation. The biologist shall prepare a mitigation as-built to submit to Jefferson County. This as-built shall be reviewed and approved prior to any other permit or plan approvals on site. The applicants shall comply with the ECY order: A. General Conditions: 1. The Applicant shall construct and operate the project in a manner consistent with the project description contained in the JARPA received by Ecology on April 20, 2022, or as otherwise approved by Ecology. 2. For purposes of this Order, all submittals required by its conditions shall be sent to fednotification@ecy.wa.gov and Rebecca.rothwell@ecy.wa.gov. Submittals shall reference Order No. 21171. 3. The Applicant shall provide access to the project site and mitigation site upon request by Ecology. MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 19 of 20 4. Copies of this Order shall be kept on the job site and readily available for reference by Ecology personnel, the construction superintendent, construction managers and forepersons, and state and local government inspectors. 5. Nothing in this Order waives Ecology’s authority to issue additional orders if Ecology determines further actions are necessary to implement the water quality laws of the state. Further, Ecology retains continuing jurisdiction to make modifications hereto through supplemental order, if additional impacts due to project construction or operation are identified (e.g., violations of water quality standards, downstream erosion, etc.), or if additional conditions are necessary to further protect the public interest. 6. The Applicant shall ensure that all appropriate project engineers and contractors at the project site have read and understand relevant conditions of this Order and all permits, approvals, and documents referenced in this Order. B. Notification Requirements: 1. The Applicant shall provide written notification to Ecology in accordance with condition A.2 above immediately following a violation of the state water quality standards or when the project is out of compliance with any condition of this Order: Wetland Mitigation Conditions: 1. The Applicant shall mitigate wetland impacts as described in the Wetland Mitigation Plan prepared by Ecological Land Services, and dated March 17, 2022 (hereafter called the “Mitigation Plan”), or as required by this Order or revised and approved by Ecology. 2. Unless otherwise approved by Ecology in writing, the Applicant shall begin the compensatory mitigation project as soon as is feasible after the driveway is constructed. If wetland mitigation is delayed beyond one year from the time of wetland impacts, Ecology may require additional compensation to account for additional temporal loss of wetland functions. 3. The Applicant shall provide a status report on the mitigation construction to Ecology 13 months from the date of permit issuance. Annual status reports on mitigation construction are required until mitigation construction is complete. 4. The Applicant shall follow the steps below to record a deed notification for the wetland mitigation site: a. Send a draft deed notification (see Attachment A: Wetland Notice for Deed Notification for an example) to Ecology for review prior to recording and make edits based on Ecology’s comments. b. Record, on the mitigation site property deed, a description of the mitigation area identified in the final mitigation plan and a site map from the final wetland mitigation plan or as-built report showing the location of wetlands and their buffers. c. Record these documents with the County Recording Office, Registrar of Deeds, or other official responsible for maintaining records for, or interest in, real property. d. Submit proof of this recorded documentation to Ecology within 180 days of this Order, unless otherwise approved by Ecology 11. The approved mitigation shall be implemented prior to approval of any future plans or permits. DCD SHALL NOT ISSUE ANY FINAL CERTIFICATE OF OCCUPANCY UNTIL DCD REVIEWS AND APPROVES THE PLANTING AREA FOR COMPLIANCE WITH THE APPROVED PLAN AND PERMIT CONDITIONS. Contact project planner Jenny Murphy or staff biologist (Donna Frostholm) to review the mitigation as-built as prepared by the project biologist. 12. Plant survival shall be 100 percent for the first growing season. In the second through fifth growing season, plant survival shall be at least 80 percent. The applicant shall submit annual monitoring reports for five years, documenting plant survival and percent cover of non-native MLA22-00044 / ZON2022-00016 Brown Reasonable Economic Use Exception Page 20 of 20 and/or invasive species. Contingency measures shall be required if plant survival requirements are not met. 13. All grading and filling of land must utilize only clean fill. All other materials may be considered solid waste and permit approval may be required from your local jurisdictional health department prior to filling. All removed debris resulting from this project must be disposed of at an approved site. Contact the local jurisdictional health department or Department of Ecology for proper management of these materials. 14. Erosion control measures must be in place prior to any clearing, grading, or construction. These control measures must be effective to prevent stormwater runoff from carrying soil and other pollutants into surface water or storm drains that lead to waters of the state. Sand, silt, clay particles, and soil will damage aquatic habitat and are considered to be pollutants. Any discharge of sediment-laden runoff or other pollutants to waters of the state is in violation of Chapter 90.48 RCW, Water Pollution Control, and WAC 173-201A, Water Quality Standards for Surface Waters of the State of Washington, and is subject to enforcement action. 15. Development pursuant to this permit shall be undertaken subject to the applicable policies and performance standards of the Jefferson County Unified Development Code.